No. 13864 INTHE SUPREME COURT OF THE STATE OF MONTAPJA 1978

LINDA ALLEN, Petitioner and Respondent,

-vsCLIFF ALLEN, Respondent and Appellant.

Appeal from: District Court of the Eiqhteenth Judicial District, Honorable

### W. W. Lessley, Judgepresiding. Counsel of Record: For Appellant: Smith and Harper,Helena, Montana Jack Harper argued, Helena, Montana For Respondent: Landoe,Gary and Planalp,Bozeman, Montana Peter S. Lineberger argued, Bozeman,Tlontana

Submitted: January 13, 1978

Filed:- 

## FEB221976



## s& ClerkMr. JusticeFrank I. Haswell delivered the Opinion of the Court.

~inda Allen (wife)petitioned the DistrictCourt, Gallatin County, for dissolution of her marriage to Cliff ~llen (husband). The husband appeals from the decree of the DistrictCourtdissolving themarriage of the parties; awarding custody of the two minor children of themarriage to the wife; imposing child support obligationson the husband;dividing the personal property of the parties; and ordering both parties to pay their own attorney fees. The husband raises the following issues on appeal:

(1) Whether the evidence supports the District Court's judgment awarding custody of the minor children to the wife? (2) Whether the findings of factand conclusionsof law support the judgment? (3) Whether the failure to give to the husband the county welfare department's investigation report of custodial arrangements is grounds for vacating the judgmentpursuant to section 48-335(3),R.C.M. 1947? On cross-appeal, the wife contends the DistrictCourt erred in failing to award her attorney's fees at the trial court level, and additionally, she seeks $750.00 attorney fees for the services of her attorney in this appeal. In determining the custody and control of minor children the paramount consideration is the welfare of the minor children. The trial judge has a superior advantage in resolving the difficultproblem of child custody since he hears the testimony and views the demeanor of the witnesses. TheDistrict Court's decision on custodywill not be overturned on appeal unless there is a clear abuse of discretion. Mont

# . Leev. Gebhardt (19771, 

### , 567 P.2d 466, 34St.Rep. 810; In reMarriage of Isler (1977), I 

### -Mont

# . 566 P.2d 55, 34 St.Rep. 545; In reMarriage of Tweeten (1977) , Mont

# . , 563 P.2d 1141, 34 St.Rep. 337. The statutory criteria for determining child custody is found in the Montana Uniform Marriage and DivorceAct, section 48-332,R.C.M. 1947,which provides: "Bestinterestof child. The court shall determine custody in accordancewith the best interestof the child. The court shall consider all relevant factors including: "(1) the wishes of the child's parent or parents as to his custody; 

### " (2) the wishes of the child as to his custodian; "(3) the interaction and interrelationship of the child with his parent or parents, his siblings, and any other person who may significantly affect the child's best interest; "(4) the child's adjustment to his home, school, and community;and "(5) themental and physical health of all individuals involved." After receiving testimony and giving careful consideration to the factors contained in section 48-332, the District Court concluded the best interests of the minor children warranted awarding the children's custody and control to the wife. Since the husband has failed to establish by a clear preponderance of the evidence that the DistrictCourt erred in awarding custody of the minor children to the wife, the DistrictCourt's decision on this matter will not be disturbed. Brooks v. Brooks (1976)

## , Mont, 

### , 556 P.2d 901, 33 St.Rep. 1114. We have reviewed the District Court's findings of fact and conclusions of law and find them in harmony with the District Court's decree awarding custody of the minor children to wife.The third issue raised by the husband addresses the countywelfare department's investigation and report concerning the parties custodial arrangements for the minor children. The husband contends the District Court's judgment should be vacated because he did not receive a copy of the report. He contends this denied him an opportunity to cross-examine persons preparing the report and to offer testimony rebutting the report. We recognize the provisions of section 48-335,R.C.M. 1947, as they pertain to the disclosure of an investigator's report concerning custodialarrangements. Subparagraph (3) of section 48-335 provides: 

### " (3)The court shallmail the investigator's report to counsel and to any party not represented by counsel at least ten (10)days prior to the hearing. The investigator shallmake available to counsel and to any party not represented by counsel the investigator's file of underlying data, and reports, complete texts of diagnostic reports made to the investigator pursuant to the provisions of subsection (2), and the names and addressesof allpersons whom the investigator has consulted. Any party to the proceedingmay call the investigator and any person whom he has consulted for cross-examination. A party may not waive his right of cross-examinationprior to the hearing." The critical distinction in the present case is that the husband failed to request any investigation and report until his concluding testimony at the trial. Testimony concerning custody of the minor children had already been given. However, the DistrictCourt ordered the county welfare department to perform an investigation and submit its report to the court. Thewelfare investigationwas performed and a reporton the custodial arrangements of wife and husband were submitted and filed with the DistrictCourt prior to the District Court's entry of findingsof fact, conclusions of law, and decree.In light of the husband's untimely request for a custodial investigation and report and his failure to submit a timely motion for a continuance in thismatter, the husband's contentions must fail. The final substantive issue is the wife's contention the DistrictCourt erred in failing to award attorney fees to her. Thematter of attorney fees in an action for dissolution of marriage is governed by section 48-327,R.C.M. 1947, which provides: "Costs--Attorney fees. The court from time to time after considering the financial resources of both parties may order a party to pay a reasonable amount for the cost to the other party of maintaining or defending any proceeding under this act and for attorney's fees, including sums for legal services rendered and costs incurred prior to the commencement of the proceeding or after entry of judgment. The courtmay order that the amountbe paid directly to the attorney, who may enforce the order in his name." This Courthas held a showing of necessity is a condition precedent to an award of attorney fees. Whitman v. Whitman

(19741,164Mont. 124, 519 P.2d 966;State ex rel. Sower~rine,

v. DistrictCourt (19651,145 Mont. 375, 401 P.2d 568. Here, the record discloses thewife presented evidence of her tenuous financial situation. However, when the wife's financial condition is compared to the husband's, we cannot conclude the DistrictCourt erred when it ordered both parties to pay their respectiveattorney fees at the trial court level. Where there is substantial evidence to support the findings of the District Court, such findingswill not be disturbed on appeal. Kartes v. Kartes (19771, Mont

# .

, 573 P.2d 191, 34 St.Rep. 1576;Luppold v. Lewis (19771, Mont. 

### , 563 P.2d 538, 34 St.Rep. 227.

### Our final consideration is the wife's cross-appeal for reasonableattorney fees incurred for this appeal. Section 93-8606,R.C.M. 1947,and Rule 33,M.R.App.Civ.P., provide the successfulparty shall recover from the other party his costs on appeal. However, attorney fees are not included as costs. State ex rel. Sowerwinev. DistrictCourt (1965), 145Mont. 375, 401 P.2d 568. We find the wife here is not entitled to attorney fees on appeal on the record before us. The judgment of the DistrictCourt is affirmed. 

# z-4 Justice $0

# -@&&-

We Concur:

Mr. Acting Chief Justice John Conway Harrison concurring: I 

### concur except for the failure of the majority to award attorney fees. I

### would award attorney fees to the respondent wife.