No. 85-03 INTHE SUPREI4E COURT OF THE STATE OF MONTANA 1985

INRE THE MARRIAGE OF MARY JOOBERGFELL, Petitioner and Appellant, and PAUL DOUGLAS OBERGFELL, Respondent and Respondent.

APPEAL FROM: DistrictCourt

### of the SeventhJudicial District, 

### In

### and for the County

### of Richland, TheHonorable R. C. McDonough, Judge presiding.

COUNSEL OF RECORD:

For Appellant: Utick, Grosfield & Uda; 

### Joan Uda, Helena, Montana

For Respondent: Peter 0. Maltese, Sidney, Montana



### -- - 

### ---- Submitted

### on Briefs: 

### June 28, 1985 Decided: September 18, 1985



### ---- Clerk

### Mr. Justice John Conway Harrison delivered the Opinion of the Court.

This is an appeal by the wife from an order of custody and division of marital property made by the District Court of the SeventhJudicial District,Richland County, the Honorable R. C. McDonoughpresiding. We affirm. Mary Jo and Paul Obergfell were married in 1973. 

### Two children were born of the marriage, namely Ryan and Randall who were tenyears of age and eightyears of age,respectively, at the time of the hearing. In 1980, after a period of separation and an unsuccessful reconciliation attempt, Mrs. Obergfell left the family home in Sidney, Montana, and moved to Billings, Montana,with Ryan and Randal1. 

### Shortly after her move to Billings,Mrs. Obergfell filed her petition for dissolution of marriage in Richland County. While is Billings,Mrs. Obergfell completed her degree in special education and in 1984 accepted a position as a special education instructor at the Boulder River School and Hospital in Boulder,Montana. The boys have lived continuously with Mrs. Obergfell during the school year and with their father during the summer months since the couple permanently separated in 1980. 

### Paul Obergfell continues to live in the Sidney area and has been employed by Montana-Dakota Utilities for the past 11 years. His current residence is a mobile home which is located 15 miles southeast of Sidney on his father's farm. Mrs. Obergfell's petition for dissolution of marriage requested that she be awarded custody of the two minor children; that Paul pay her reasonable attorney's fees; and that the parties' personal property be equitably divided. In his response,Mr. Obergfell requested that he be awarded custody of 

### the two minor children; that each party bear their ownattorney's fees; and that the personal property of the parties be equitably divided. The Richland County DistrictCourt, aftera hearing held September 13, 1984, dissolved themarriage of theparties and ordered inpart the following: 1. The parents shall have joint custody of the children. 2. The residence of each child shallbe with themother until the end of the school year during which that child turns 12 years of age, after which 

### tim~, the child 

### will reside permanently with the father. 3. The father shall pay child support inthe amount of $175 per month per child while the children reside with the mother. 

### 4. The father shallhave custody of the children during the summer school vacation months while the children are 

### stillresidingwith themother, subject tothemother's right tohave the children for a 10-day period during such summer months. 5. The mother shall have one-month summer visitation with the children when the residence of the children has been transferred permanently to the father. In addition, the children shall alternateholidays with theparents. 6. The marital estate consists solely of personal property which has been equitably divided. 7. That eachparty 

### is topay hisorher own legal fees, and the father 

### istopay the children's attorney. In light of the above District Court order, Mrs. Obergfell presents the following issues forreview: 1. Whether the District Court abused 

### its discretion in changing physical custody of each of the minor children of the parties from the mother to the father when each child reaches the age of 12 years and in severely limiting themother's visitation without findingharm tothe children from thevisitation? 2. Whether the findings of fact and conclusions of law of the

### DistrictCourt are supported by the evidence? 3. Whether theDistrictCourt erred in failingtoaward Mrs. Obergfell her attorney's fees incurred in this matter? In addressing the firstissue raised by Mrs. Obergfell, both parties recognize in their briefs the standard for 

### review of child custody cases as established by this Court. In Bier v. Sherrard (Mont. 19811, 623 P.2d 550, 551, 38 St.Rep. 158, 159, 

### we stated: In order to prevail, [appellant] must show an abuse of discretionby thejudge, must demonstrate that there 

### is a clear preponderance of evidence against the findings, and must overcome the presumptionthatthejudgment of thetrialcourt 

### is correct. 

### In reviewing the 

### District Court's custody order, this Court need only look to the record to 

### see if the factors 

### set forth in 

### S 40-4-212, MCA, 

### were considered and then must determine whether the trial court made appropriate findings with respect tothese criteria. (Citationsomitted.) Section 40-4-212, MCA, provides the standard the Dis

### trict Court must follow 

### in making a custody determination: The court shall determine the 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 astohis custody; (2) thewishes of the child as to his custodian; (3) the interaction and interrelation 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 allindividuals involved. Initially, the trial court recogn.ized that several of the factors listed by 

### S 40-4-212, MCA, equally applied to both parties in determining custody. First, the trialjudge noted that both parents desire custody of the children and that both parents are physically and mentally able to becustodians of the children. In addition, the trial judge found the children had adjusted to their home, school and community in Boulder during the school year and their home and community in Sidney during the summer months. But, the trial judge also recognized that several of the factors listed by 

### S 40-4-212 weighed heavily in favor of the father indetermining custody. First, the trialcourt found a strongpreference of each child was to live with their father in Sidney on the farm. The findings show that both boys enjoy and desire the farm lifestyle and that 

### it 

### is their true wish to live with their father. Second, the trial court found that while the boys' interrelationship and interaction with both parties was normal and healthy, theboys did express some negative feelings about their relationship with their mother and desired not to

### livewith her inBoulder. Also, the court considered the interaction and interrelationship of theboys with other people who may significantly affecttheirbest interest. The record indicates that all four of theboys' grandparents live inthe Sidney area, along with assorted maternal and paternal cousins, aunts and uncles. This Court recognizes that in considering the findings issued by the District Court and the guidelines listed by 

### S 40-4-212, MCA, there are factors that point favorably toward themother indetermining custody of theboys. However, asthisCourt explained inGilmore v. Gilmore (1975), 166 Mont. 47, 51, 530 P.2d 480, 482: The responsibility of decidingcustody 

### is a delicate one which 

### is lodged with the district court. The judge hearing oral testimony in such a controversy has a superior advantage 

### in determining the same, and his decision ought 

### not to be disturbed except on a clear showing of abuse of discretion. [Citing cases.]Therefore, 

### we hold thattheDistrict Court adequately considered the guidelines listed in 

### 5 40-4-212, and did not abuse 

### itsdiscretion inawarding the fathercustody of thechildren when they reach 12years of age. Similarly, 

### we hold thatthe 

### District Court did not abuse 

### its discretion when determining the mother's visitation schedule. The trial court's determination of visitation was not punitive in nature, as the mother suggests, but rather focused upon what the trial court considered to be in the best interestof thechildren. The second issue raisedby Mrs. Obergfell 

### iswhether the findings of factand conclusions of law of the

### DistrictCourt

are supportedby theeviden.ce. 

### Inresponse tothisissue, 

### we note thisCourt

### willnot 

### set aside thetrial court's findings of fact unless shown to be clearly erroneous. Rule 52(a), M.R.Civ.P., MCA, states inpertinent part: Findings of fact shall not be 

### set aside unless clearly erroneous, and due regard shallbe given tothe opportunity of the trial court to judge the credibility of thewitnesses. Furthermore, findings of fact are not clearlyerroneous if supportedby substantial credible evidence: This Court's function 

# ..

# . is not to substitute 

### its judgment in place of the 

### trier of factsbut rather 

### it 

### is "confined todeterminewhether there 

### is substantial credible evidence to support" the findings of fact and conclusions of law. (Citations omitted.) Although conflicts may exist in the evidence presented, 

### it is the duty and function of the trial judge to resolve such conflicts. His findings 

### will not be disturbed on appeal where they are based on substantial though conflicting evidence. (Citations Omitted.) Olson 

### v. Westfork Properties, Inc. (1976), 171Mont. 154, 557

We conclude that there 

### is substantial credible evidence

on the record, asexplained under issue number one tosupport the findings of fact and conclusions of law of the 

### DistrictCourt. Therefore, 

### we affirm the DistrictCourt

### 's determination of custody and visitation. The final issue raised by Mrs. Obergfell iswhether the 

### District Court erred in failingtoaward her attorney's fees. The awarding of attorney's fees are governed by 

### S 40-4-110, MCA, which states: 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 proceedings under chapters 1and 

### 4 of this 

### title 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 hisname. This Court has indicated thatthe awarding of attorney's fees under this statute 

### is clearly permissive. See In Re the Marriage 

### of Carlson (Mont. 19841, 693 P.2d 496, 

### 41 St.Rep. 2419. Furthermore, therecord indicatesthatthe trialcourt

was 

### well appraised of the financial resources of both parties. Therefore, 

### we find no abuse of discretion by the trial court indirecting theparties topay their own attorney's fees. The judgment of theDistrict Court 

### is affirmed.

We concur: