No. 13310 IN THE SUPREME COURT OF THE STATE OF MONTANA 1977

MURIEL R. SOLIE,Plaintiff and Respondent,
-vsROBERT L. SOLIE, Defendant and Appellant.
Appeal from: District Court of the Fourteenth Judicial District, Honorable Nat Allen, Judge presiding. Counsel of Record: For Appellant: ~ibbs, Sweeney and Colburg, Billings, Montana
For Respondent: Jones, Olsen and Christensen, Billi.ngs,Montana Paul G. Olsen argued, Billings, Montana The matter is deemed submitted on briefs.

Submitted: January 26, 1977 Decided : 

## MAR

## 1 0 

### 1971Mr. Justice Gene B. Daly delivered the Opinion of the Court.
This isan appeal by Robert L. Solie, the father, from

a finalmodified judgment of the district cnurt, Musselshell County, denying his request for increased visitation rights with his minor child Peter and granting the cross-petition of Muriel Solie, the mother, for reduction of Robert's visitation rights, increase of support and attorney fees. Muriel was granted a divorce from Robert on February 3, 1969. The decree incorporated a property settlement agreement whereby Muriel received Robert's interest inthe family home, subject to a mortgage, alimony inthe amount of $250 per month through September 1, 1971, support of $100 per month for each of the two minor children, Suzanne age 9 years and Peter age 2 years, attorney fees, the family
car and satisfaction of allother obligations of the parties. In addition, Robert agreed tomaintain a policy of lifeinsurance of $50,000 upon his lifewith the children asbeneficiaries. Robert Solie isa 39 year old insurance man with supervisory duties that require his absence from home several days a week. His
new wife Ann is a school teacher and together they have an income of $33,270. They have a 4 bedroom, 2 storyhome on 10acres of ground inEmerald Hillsnear Billings, Montana and can provide horseback riding, sledding, swimming and other activities associated with rural living. Residing inthe home are Suzanne, now age 15 (daughter of parties hereto); Jeffrey age 7 (Ann's by previous marriage); and Jennifer, age 4, the daughter of Robert and hisnew wife Ann. Muriel is a 36 year old school teacher with herMaster's degree and working on a Doctor's by taking several classes a quarter

### at Eastern Montana College,BLllings,Montana. She has not remarried and lives in the smallhome she obtained in the divorce property settlement,with son Peter,now aged 9 years, the subject of this litigation. Her income is a 

### gross of $11,500per year, or $680 take home per month for 10months. She has $400 in the Teacher's Credit Union saved for expenses during the two months she receivesno salary and a bank balance of $70. She drives a 

### 1967 Pontiac automobile. Shepurchased a 

### TV for the children just last year for $1.00. Since the divorce in 1969Robert has failed to meet his financial obligation in regard to support and hasbeen delinquentmost of the time. This has created a stormy and hostile atmospherewith several contempt proceedings, numerous executionwrits, etc. from 1970 until the present. On June 21, 1971, the district court found it necessary to limit the visitation rights of 

### %bert after hearing his petition for increased visitation. In its order the court stated: 

# "** * the Court deems it necessary that some firm directionbe gi'ven to petitioner---defendant's visitation privileges

# **

# *."
InDecember 1978, the court agreed to again approve increased visitation for Robert which was rewarded in 1975with a less than straightf6mrdmaneuver by Robert to gain full custody of daughter Suzanne. The record further reveals a serious alienationhas developed between Muriel and her daughter since custodywent to Robert, whichwas evidencing itself during the custodial change. On January 2, 

### 1976,Robert filed a petition to increasehis temporary custody rightswith the minor son Peter to include 7 alternateholidays, 

### 6weeks during the summer in addition to alternateweekends fromFriday to Sunday.

### Muriel filed her cross-petition January 9,1976 asking for
a $50 

### per month increase in support for Peter and alleging Peter does not enjoy visitation at Robert's residence and asked for a decrease in visitation rights to Robert to oneweekend a month, rather than the two now in effect and attorney fees in the amount

The matter was heard on January 12, 1976 and the court filed its modified decree onMarch 3, 1976. After extensive findings of fact, the court made conclusions of law that the best interest of the minor child Peter Solie, so that there would be no mental or emotional detriment,would be best served by reduction ofthe visitation right to one weekend per month; granted the increase in child support to Muriel and awarded her $250 

### attorney fees. From this modified decree Robert appeals. The issuepresented for review is the application of the facts of this case to the Uniform Marriage and DivorceAct, section 48-337,R.C.M. 1947,which establishes the statutory standard for limitation of noncustodial parent's visitation. TheUniform Marriage and DivorceAct does apply to this matter. Section 48-341(3), R.C.M. 1947;Richard 

### W. Holm

### v. Allena 

### V. Holm, Mont

# . 2 

### P.2d 

## , 34 St. Rep. 118, decided March 

### 2, 1977. Section 48-337,R.C.M. 1947,provides in pertinent part: "(2) 

### The Court may modify an order granting or denying visitation rights whenever modification would serve the best interest of the child;but the court shall not restrict a 

### parent's visitation rights unless it finds that the visitation would endanger seriously the child's physical, mental,moral, or emotionalhealth."Here Robert argues that "The court did not find, nor could it find on the evidence presented, that the current visitation schedule would endanger seriously Peter Solie's physical, mental, moral or emotional health. Rather the court in Conclusion of Law No. 1applied the 'best interest of child' rationale in

. concluding that visitation should be reduced. That test is clearly not applicable to a reduction invisitation." He further argues this Court has not previously considered
or interpreted the language contained in section 48-337, R.C.M. 1947, and citesthe Court to a Colorado decision that very briefly alluded to the problem, but does not disclose any evidence in that
case. He further quotes from the Commissioners' Note directed to the "Act" under $407, 9 U.L.A. p. -509, which is the same as section48-337, R.C.M. 1947: 

# "*

# ** Although the standard isnecessarily somewhat vague, it was deliberately chosen to indicate its stringency when compared to the 'best interest' standard traditionally applied to this problem. The special standard was chosen to prevent the denial of visita,tion to noncustodial parent on the basis of moral judgments about parental behavior which have no relevance to the parent's interest in or capacity tomaintain a close and benign relationship to the child. The same onerous standard isapplicable when custodial parent tries to have the noncustodial parent's visitation privileges restricted or eliminated." (Emphasis suppli-ed.) The reference toparental behavior in the Commissioners' Note ispointed at the Uniform Marriage and Divorce Act $402which
was not adopted by Montana. The exact pertinent language in 6402 is: "The Court shallnot consider conduct of a proposed custodian that does not affect his relationship to the child." See: 37 Montana Law Review, No. 1, p. 129.However, thisCourt moved away from that type of moral judgment sometime ago. Foss v. Leifer, 

# - Mont

# . ,550 P.2d 1309, 33 St. Rep. 528, 530. The standard of physical, moral, mental or emotional health used intheAct does not introduce any new concepts into the law as it has existed inMontana for many years. See: Section 91-4515, R.C.M. 1947 (repealed in 1975 by the adoption of the Uniform Marriage and Divorce Act); Gilmore v. Gilmore, 166Mont. 47, 530 P.2d 480; Gilbert v. Gilbert, 166 Mont. 312, 316, 533 P.2d 1079; InreAdoption of Biery, 164Mont. 353, 522 P.2d 1377 and cases cited therein. Therefore, no interpretation of the new statute isrequired. Further, the standard announced intheMontana cases cited above, and most recently inGilbert is: "This Court alsorecognizes the superior position of the trialjudge in such matters and willnot disturb the trialcourt's findings unless there is a mistake of law ora finding of fact not supported by credible evidence thatwould amount toa clear abuse of discretion." Here, we do not find abuse of discretion ormistake of law inthe record as it stands, however, we do not have available tous the entirerecord. Both parties agree important discussions
were had by the trialjudge inchambers with the parents together and with counsel and then with the children, with counsel present. There were no objections placed inthe record before us tothe lack of a record of these proceedings. Section48-334(1), R.C.M.

We find substantial evidence inthe record to support the increase inchild support inthe amount of $50 per month. The mother's testimony that her costshad increased $75 per month since the father took full custody of Suzanne was not refuted. The fact

### shehas no funds except for Credit Union savingswhich must apply to expenses during the two months she receivesno salarywas not questioned. The lack of ability to pay attorney fees is not questioned. Robert complains that Muriel's financial picturewas not sufficiently explored yet we findno issuepresented that this opportunitywas denied to counsel. This Court ismindful of its holding on attorney fees in First Security Bank of Bozeman v. Tholkes, Mont

# . ,547 P.2d 1328, 

### 33 St. Rep. 341. Yet no useful purpose will be sewed to require a hearing on reasonableness when only a nominal fee of $250 was ordered paid for the contested custody proceehings. The 

### judgment of the district court is,affirmed.



### We concur:



# L. Justices.

### Mr. Justice Daniel

### J. Shea dissenting inpart and concurring in part: 

### I concur in the result reached as to visitation and child support but not in all that is stated on these matters. However, 

### Idissent to this Court allowing an attorney's fee of $250 as entered by the trial court,without proof of the value of the attorney's fee; 

### Ido not question that the fee set by the trial courtwas a reasonable one,but ifwe are going to follow the recent case of First Security Bank ofBozeman v. Tholkes, Mont

# . ,547 P.2d 1328, 33 St.Rep. 341 (decided March 30, 1976), then the district court should take evidence on the value of the attorney's fee before determining the amount. Thiswould be a relatively simpleprocedure. 

### A fee that is considerednominal to one party to a lawsuit couldwell be considered astronomical to the opposing party. That is precisely why there shouldbe a hearing.