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 1971 
Mr. Justice Gene B. Daly delivered the Opinion of the Court. 

This is an appeal by Robert L. Solie, the father, from 

a final modified 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 in the family home, subject to a 

mortgage, alimony in the 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 all other obligations of the parties. 

In addition, Robert agreed to maintain a policy of life insurance 

of $50,000 upon his life with the children as beneficiaries. 

Robert Solie is a 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 story home on 10 acres of 

ground in Emerald Hills near Billings, Montana and can provide 

horseback riding, sledding, swimming and other activities associated 

with rural living. Residing in the 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 his new 

wife Ann. 

Muriel is a 36 year old school teacher with her Master'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 small home 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 $11,500 per year, 

or $680 take home per month for 10 months. She has $400 in the 

Teacher's Credit Union saved for expenses during the two months 

she receives no salary and a bank balance of $70. She drives a 

1967 Pontiac automobile. She purchased a TV for the children just 

last year for $1.00. 

Since the divorce in 1969 Robert has failed to meet his 

financial obligation in regard to support and has been delinquent most 

of the time. This has created a stormy and hostile atmosphere with 

several contempt proceedings, numerous execution writs, 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 

direction be gi'ven to petitioner---defendant's 

visitation privileges * * *." 

In December 1978, the court agreed to again approve increased 

visitation for Robert which was rewarded in 1975 with a less than 

straightf6mrd maneuver by Robert to gain full custody of daughter 

Suzanne. The record further reveals a serious alienation has 

developed between Muriel and her daughter since custody went to 

Robert, which was evidencing itself during the custodial change. 

On January 2, 1976, Robert filed a petition to increase his 

temporary custody rights with the minor son Peter to include 7 

alternate holidays, 6 weeks during the summer in addition to alternate weekends from Friday 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 one weekend 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 on March 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 issue presented for review is the application of the 

facts of this case to the Uniform Marriage and Divorce Act, section 

48-337, R.C.M. 1947, which establishes the statutory standard for 

limitation of noncustodial parent's visitation. 

The Uniform Marriage and Divorce Act 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 emotional health." 
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. 1 applied the 'best interest of child' rationale in . 

concluding that visitation should be reduced. That test is clearly 

not applicable to a reduction in visitation." 

He further argues this Court has not previously considered 

or interpreted the language contained in section 48-337, R.C.M. 

1947, and cites the 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 

section 48-337, R.C.M. 1947: 

"* * * Although the standard is necessarily 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 to maintain a close 

and benign relationship to the child. The same onerous 

standard is applicable when custodial parent tries to 

have the noncustodial parent's visitation privileges 

restricted or eliminated." (Emphasis suppli-ed. ) 

The reference to parental behavior in the Commissioners' 

Note is pointed at the Uniform Marriage and Divorce Act $402 which 

was not adopted by Montana. The exact pertinent language in 6402 

is: 

"The Court shall not 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, this Court 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 in the Act does not introduce 

any new concepts into the law as it has existed in Montana 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, 166 Mont. 47, 530 P.2d 480; Gilbert v. Gilbert, 166 

Mont. 312, 316, 533 P.2d 1079; In re Adoption of Biery, 164 Mont. 

353, 522 P.2d 1377 and cases cited therein. 

Therefore, no interpretation of the new statute is required. 

Further, the standard announced in the Montana cases cited above, 

and most recently in Gilbert is: 

"This Court also recognizes the superior position 

of the trial judge in such matters and will not 

disturb the trial court's findings unless there is 

a mistake of law or a finding of fact not supported 

by credible evidence that would amount to a clear 

abuse of discretion." 

Here, we do not find abuse of discretion or mistake of 

law in the record as it stands, however, we do not have available 

to us the entire record. Both parties agree important discussions 

were had by the trial judge in chambers with the parents together 

and with counsel and then with the children, with counsel present. 

There were no objections placed in the record before us to the 

lack of a record of these proceedings. Section 48-334(1), R.C.M. 

We find substantial evidence in the record to support the 

increase in child support in the amount of $50 per month. The 

mother's testimony that her costs had increased $75 per month since 

the father took full custody of Suzanne was not refuted. The fact 
she has no funds except for Credit Union savings which must 

apply to expenses during the two months she receives no salary was 

not questioned. The lack of ability to pay attorney fees is not 

questioned. Robert complains that Muriel's financial picture was 

not sufficiently explored yet we find no issue presented that this 

opportunity was denied to counsel. This Court is mindful 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 in part 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, I dissent 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; I do not question that the fee set 

by the trial court was a reasonable one, but if we are going to 

follow the recent case of First Security Bank of Bozeman 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. This would 

be a relatively simple procedure. 

A fee that is considered nominal to one party to a lawsuit 

could well be considered astronomical to the opposing party. 

That is precisely why there should be a hearing.