No. 13864 

IN THE 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, Judge presiding. 

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: - FEB 22 1976 

s& 

Clerk 
Mr. Justice Frank I. Haswell delivered the Opinion of the 

Court. 

~inda Allen (wife) petitioned the District Court, 

Gallatin County, for dissolution of her marriage to Cliff 

~llen (husband). The husband appeals from the decree of the 

District Court dissolving the marriage of the parties; 

awarding custody of the two minor children of the marriage 

to the wife; imposing child support obligations on 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 fact and conclusions of 

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 judgment pursuant 

to section 48-335 (3), R.C.M. 1947? 

On cross-appeal, the wife contends the District Court 

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 difficult problem of child custody since he 

hears the testimony and views the demeanor of the witnesses. 

The District Court's decision on custody will not be overturned on appeal unless there is a clear abuse of discretion. 

Lee v. Gebhardt (19771, Mont . , 567 P.2d 466, 34 
St.Rep. 810; In re Marriage of Isler (1977), - Mont . I 

566 P.2d 55, 34 St.Rep. 545; In re Marriage 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 Divorce Act, 

section 48-332, R.C.M. 1947, which provides: 

"Best interest of child. The court shall determine 

custody in accordance with the best interest of 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) the mental 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 District Court erred 

in awarding custody of the minor children to the wife, the 

District Court'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 

county welfare 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 custodial arrangements. Subparagraph (3) 

of section 48-335 provides: 

" (3) The court shall mail 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 shall make 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 addresses of 

all persons whom the investigator has consulted. 

Any party to the proceeding may call the investigator and any person whom he has consulted for 

cross-examination. A party may not waive his 

right of cross-examination prior 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 District Court ordered the county 

welfare department to perform an investigation and submit 

its report to the court. The welfare investigation was 

performed and a report on the custodial arrangements of wife 

and husband were submitted and filed with the District Court 

prior to the District Court's entry of findings of 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 this matter, the husband's 

contentions must fail. 

The final substantive issue is the wife's contention 

the District Court erred in failing to award attorney fees 

to her. The matter 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 court may order that 

the amount be paid directly to the attorney, who 

may enforce the order in his name." 

This Court has held a showing of necessity is a condition 

precedent to an award of attorney fees. Whitman v. Whitman 

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

v. District Court (19651, 145 Mont. 375, 401 P.2d 568. 

Here, the record discloses the wife presented evidence of 

her tenuous financial situation. However, when the wife's 

financial condition is compared to the husband's, we cannot 

conclude the District Court erred when it ordered both 

parties to pay their respective attorney fees at the trial 

court level. Where there is substantial evidence to support 

the findings of the District Court, such findings will 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 

reasonable attorney fees incurred for this appeal. Section 

93-8606, R.C.M. 1947, and Rule 33, M.R.App.Civ.P., provide 

the successful party shall recover from the other party his 

costs on appeal. However, attorney fees are not included as 

costs. State ex rel. Sowerwine v. District Court (1965), 

145 Mont. 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 District Court 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.