No. 85-03 

IN THE SUPREI4E COURT OF THE STATE OF MONTANA 

1985 

IN RE THE MARRIAGE OF 

MARY JO OBERGFELL, 

Petitioner and Appellant, 

and 

PAUL DOUGLAS OBERGFELL, 

Respondent and Respondent. 

APPEAL FROM: District Court of the Seventh Judicial District, 

In and for the County of Richland, 

The Honorable 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 Seventh Judicial District, Richland County, the Honorable R. C. McDonough presiding. We affirm. 

Mary Jo and Paul Obergfell were married in 1973. Two 

children were born of the marriage, namely Ryan and Randall 

who were ten years of age and eight years 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 Randal 1. 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 own 
attorney's fees; and that the personal property of the 

parties be equitably divided. 

The Richland County District Court, after a hearing held 

September 13, 1984, dissolved the marriage of the parties and 

ordered in part the following: 

1. The parents shall have joint custody of the 

children. 

2. The residence of each child shall be with the mother 

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 in the amount of 

$175 per month per child while the children reside with the 

mother. 

4. The father shall have custody of the children during 

the summer school vacation months while the children are 

still residing with the mother, subject to the mother's right 

to have 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 alternate holidays with the parents. 

6. The marital estate consists solely of personal 

property which has been equitably divided. 

7. That each party is to pay his or her own legal fees, 

and the father is to pay the children's attorney. 

In light of the above District Court order, Mrs. 

Obergfell presents the following issues for review: 

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 the 
mother's visitation without finding harm to the children from 

the visitation? 

2. Whether the findings of fact and conclusions of law 

of the District Court are supported by the evidence? 

3. Whether the District Court erred in failing to award 

Mrs. Obergfell her attorney's fees incurred in this matter? 

In addressing the first issue 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 discretion by the judge, 

must demonstrate that there is a clear 

preponderance of evidence against the 

findings, and must overcome the presumption that the judgment of the trial court 

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 to these criteria. 

(Citations omitted.) 

Section 40-4-212, MCA, provides the standard the District 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 

as to his custody; (2) the wishes 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 

all individuals 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 trial judge 

noted that both parents desire custody of the children and 

that both parents are physically and mentally able to be 
custodians 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 

in determining custody. 

First, the trial court found a strong preference 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, the boys did express some negative feelings about their relationship with their mother and desired 

not to live with her in Boulder. Also, the court considered 

the interaction and interrelationship of the boys with other 

people who may significantly affect their best interest. The 

record indicates that all four of the boys' grandparents live 

in the 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 the mother in determining custody of the boys. However, as this Court explained in Gilmore v. Gilmore (1975), 166 

Mont. 47, 51, 530 P.2d 480, 482: 

The responsibility of deciding custody 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 that the District Court adequately considered the guidelines listed in 5 40-4-212, and did not abuse 

its discretion in awarding the father custody of the children 

when they reach 12 years of age. 

Similarly, we hold that the 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 interest of the children. 

The second issue raised by Mrs. Obergfell is whether the 

findings of fact and conclusions of law of the District Court 

are supported by the eviden.ce. In response to this issue, we 

note this Court will not set aside the trial court's findings 

of fact unless shown to be clearly erroneous. Rule 52 (a), 

M.R.Civ.P., MCA, states in pertinent part: 

Findings of fact shall not be set aside 

unless clearly erroneous, and due regard 

shall be given to the opportunity of the 

trial court to judge the credibility of 

the witnesses. 

Furthermore, findings of fact are not clearly erroneous 

if supported by substantial credible evidence: 

This Court's function . . . is not to 

substitute its judgment in place of the 

trier of facts but rather it is "confined 

to determine whether 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), 171 Mont. 154, 557 

We conclude that there is substantial credible evidence 

on the record, as explained under issue number one to support 

the findings of fact and conclusions of law of the District 
Court. Therefore, we affirm the District Court ' s determination of custody and visitation. 

The final issue raised by Mrs. Obergfell is whether the 

District Court erred in failing to award 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 1 and 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 

his name. 

This Court has indicated that the 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, the record indicates that the trial court 

was well appraised of the financial resources of both 

parties. Therefore, we find no abuse of discretion by the 

trial court in directing the parties to pay their own attorney's fees. 

The judgment of the District Court is affirmed. 

We concur: