NO. 92-039 

IN THE SUPREME COURT OF THE STATE OF MONTANA 

1993 

IN RE THE MARRIAGE OF 

JEFFERY P. WELCH, 

Petitioner and Respondent, 

and 

CAROLYN L. PHILLIPS, 

f/k/a CAROLYN WELCH, 

Respondent and Appellant. 

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CLERK OF SUPREME COUR'r 

STATE OF MONTANA 

APPEAL FROM: District Court of the First Judicial District, 

In and for the County of Lewis and Clark, 

The Honorable Jeffrey Sherlock, Judge presiding. 

COUNSEL OF RECORD: 

For Appellant: 

John L. Hollow, Attorney at Law, 

Helena, Montana 

For Respondent: 

Gregory W. Duncan, Harrison, Loendorf 

& Poston, Helena, Montana 

Filed: 

Submitted on Briefs: August 27, 1992 

Decided: March 9, 1993 
Justice Terry N. Trieweiler delivered the opinion of the Court. 

On October 10, 1991, appellant Carolyn L. Phillips, formerly 

known as Carolyn Welch, was named primary residential custodian of 

the parties' three children by order of the First Judicial District 

Court, Lewis and Clark County. However, the court denied Carolyn's 

motion to amend the pleadings to conform to the evidence, and in a 

second order issued on December 30, 1991, denied Carolyn's request 

for attorney fees. From these judgments, Carolyn appeals. We 

affirm. 

The following issues are before this Court: 

1. Did the District Court abuse its discretion when it 

denied Carolyn's motion to amend the pleadings to conform to the 

evidence? 

2. Did the District Court err when it did not award child 

support after modifying the custody order? 

3. Did the District Court abuse its discretion when it 

denied Carolyn's request for attorney fees? 

When Carolyn and Jeffery were divorced on December 15, 1989, 

after 19 years of marriage, the court approved a property 

settlement agreement which the parties had both signed. The 

agreement provided that Jeffery was to receive in excess of 

$100,000 in marital assets and Carolyn was to receive assets worth 

about $2000. The dissolution decree granted the parties joint 

custody of their three children--Errin, born April 16, 1975; Emily, 

born December 4, 1977; and Mary Ellen (Elleny) , born June 22, 1981. 
The residency of the children was to be shared as equally as 

possible and neither party was required to pay child support. 

Shortly after the dissolution, when Carolyn remarried and 

moved to Georgia, Jeffery petitioned for permanent custody of all 

three children. On July 30, 1990, Jeffery and Carolyn entered into 

a negotiated agreement which gave Jeffery custody of the children 

during the school year and Carolyn custody during the summers and 

school vacations. The agreement provided for no child support 

payments, but stipulated that Carolyn would pay all transportation 

costs for the children to travel to and from Georgia during the 

times they would be with their mother. 

Pursuant to this agreement, the children spent the remainder 

of the summer with Carolyn, but at the end of the summer she 

retained two of the girls in Georgia and repeatedly refused to 

return them to Jeffery. Finally, on September 13, 1990, Carolyn 

was ordered to return the children to Montana and to pay a fine of 

$500 a day. She was also sentenced to, and served, three days in 

jail. Thereafter, Jeffery petitioned the court for an order to 

show cause why Carolyn's future visitation should not be restricted 

and sought payment of child support from Carolyn. After several 

hearings, continuances, and substitutions of counsel, the matter 

went unresolved. 

On April 5, 1991, Carolyn petitioned to set aside the 1990 

custody agreement on the basis of duress, fraud, undue influence, 

and menace. Although Carolyn sought permanent custody of all three 

children, no request was made for child support in the pleadings. 
Hearings on this motion were held on May 23, 24, 28, 29, and 

August 19, 20, and 21, 1991. ~mmediately after the hearings were 

completed, Carolyn filed a motion to amend the pleadings to conform 

to the evidence, and sought to have Jeffery held in contempt and to 

have the original dissolution decree set aside on the grounds that 

the property settlement agreement, on which the decree was based, 

was unconscionable. 

During this same general time period, several events relating 

to the children transpired. The oldest daughter, Errin, was 

experiencing serious emotional difficulties in Helena which experts 

attributed partly to the people she was associating with, but also 

to problems stemming fromthe divorce. After an attempted suicide, 

she was hospitalized in a psychiatric care center in Helena for 

several weeks and thereafter, although technically in the custody 

of Jeffery, went to live with an aunt and uncle in Arkansas and 

began attending school there. Under the terms of the custody 

agreement, Errin went to visit her mother in Georgia during spring 

break in 1991. In direct violation of court orders, Carolyn has 

kept Errin in Georgia since that time and has never returned her to 

Jeffery. Apparently, when Jeffery realized Carolyn would not 

return Errin to Arkansas, he delayed sending the other girls to 

Georgia for the summer. In an order issued on June 7, 1991, 

Jeffery was required to send Emily and Elleny to Georgia, but the 

order specified that they were to be returned to Montana no later 

than August 15, 1991. Carolyn again violated this court order, and 

the two girls did not return to Montana until later in August. 
On October 10, 1991, the District Court issued its findings of 

fact and conclusions of law in response to Carolyn's motions, and 

judgment was entered on November 20, 1991. The District Court 

modified the custody order and awarded residential custody to 

Carolyn during the school year, and to Jeffery during summers and 

school vacations. This decision was reached after the court 

considered the ages and wishes of the children, the evidence of 

each party's performance as a parent, and the importance of not 

separating the children. The court found that Jeffery was a caring 

and capable parent who provided a healthy and clean environment, 

but that Carolyn, when she was not manipulating the children, was 

a good mother and was more apt to be involved in the children's 

activities on a regular basis. 

Prior to the change of custody, however, Carolyn was required 

to pay $3000 to the court for fines, Jeffery's attorney fees of 

$3040, and another $1500 as attorney fees for the children. The 

court further ordered that if Carolyn failed to return any of the 

children to Jeffery at the established vacation times, or during 

the summer, sole custody would immediately revert to Jeffery. 

Jeffery was ordered to assume all transportation costs to and from 

Montana in lieu of child support. 

The court also denied Carolyn's motion to amend the pleadings 

to conform to the evidence, and therefore, did not set aside the 

1989 separation agreement. Although the motion to set aside the 

July 30, 1990, custody agreement was now irrelevant, the court 

stated that it found no credible evidence to show that Carolyn did 
not enter into the agreement voluntarily while represented by an 

attorney. 

Finally, the court specifically stated that it was retaining 

jurisdiction over the matter to insure that Carolyn attempted no 

further manipulations which would interfere with Jefferyls 

relationship with his children, and to insure that the visitation 

schedule was complied with. 

In response to the court's denial of her motion to amend the 

pleadings to conform to the evidence and to set aside the 

separation agreement as unconscionable, Carolyn filed a notice of 

appeal on December 18, 1991. On appeal, Carolyn also raised the 

issue of the court's failure to make an award of child support 

after granting her primary residential custody. Carolyn had 

previously filed a bill of costs on October 17, 1991, in which she 

argued that she was entitled to her attorney fees because she had 

prevailed on the custody issue. This request was denied in a 

December 30, 1991, order, which required each party to bear his and 

her own attorney fees. From this, and the October 10, 1991, 

orders, Carolyn appeals. 

I. 

Did the District Court abuse its discretion when it denied 

Carolyn's motion to amend the pleadings to conform to the 

evidence? 

Carolyn contends the court erred when it denied her motion to 

amend the pleadings to conform to the evidence in regard to the 

original property distribution agreement because the original 

6 
agreement should have been declared unconscionable as a matter of 

law and was induced by fraud. In its order, the court concluded 

that the issue of whether the separation agreement was invalid 

should have been addressed prior to the hearings to allow all 

parties an opportunity to submit evidence, and that it would be 

unfair to permit Carolyn to raise such serious allegations at this 

point. 

Whether a party is permitted to amend the pleadings to conform 

to the evidence pursuant to rule 15(b), M.R.Civ.P., is within the 

discretion of the trial court and this Court will not disturb that 

decision absent an abuse of discretion. Glacier Natiorzal Bank v. Clzallirlor 

(1992), 253 Mont. 412, 833 P. 2d 1046; Keasterv. Bozik (l98l), 191 Mont. 

293, 623 P.2d 1376. In this case, after considering the fact that 

Carolyn could have raised these issues and submitted evidence prior 

to the hearings, and in light of certain representations that were 

made to the court during the hearings, we hold that the court did 

not abuse its discretion when it denied Carolyn's motion. 

The record reveals that, during the hearings, when Carolyn's 

attorney raised a line of questions which referred to the 

circumstances surrounding the parties' agreement, the judge stopped 

the proceedings and asked the attorney specifically whether he was 

attempting to overturn the original decree. The response was no. 

We also note that, during the 1991 hearings, Carolyn reaffirmed 

statements made in 1989, at the time the divorce decree was 

entered, to the effect that she was fully apprised of the effect of 
the agreement and wanted no assets from the marriage. In light of 

these facts, we find no abuse of discretion in the court's refusal 

to entertain consideration of this issue, particularly at a time 

when Jeffery would have been denied the opportunity to respond to 

Carolyn's allegations. 

11. 

Did the District Court err when it did not award child support 

after modifying the custody order? 

Carolyn also contends that the court erred by failing to award 

her child support when it completely modified the 1990 custody 

agreement. Carolyn argues that the provision in the order 

requiring Jeffery to pay transportation costs constituted an order 

"concerning child support." Relying on § 40-4-204, MCA, she 

maintains that the court was required to apply the uniform child 

support guidelines and establish an appropriate amount of child 

support in view of the new custody arrangement. 

Section 40-4-204(3), MCA, provides that when a court issues or 

modifies an order concerning child support, the standards outlined 

in 40-4-204(2), MCA, and the uniform child support guidelines, 

must be considered, and if no support order is made, the court must 

state its reasons for not doing so. We note, however, that this 

statute only applies when the issue of support is before the court. 

In this instance, the issue of child support was not before 

the court--there was no request for support raised by either party 

in the pleadings that were being considered by the court, no 

testimony was adduced establishing a need for support, and no 
evidence was offered concerning child support. Furthermore, in the 

proposed findings of fact and conclusions of law submitted by the 

parties after the trial, neither party addressed child support. 

Because the issue of child support was not before the cour 

we find no error in the court's failure to make such an award. 

111. 

Did the District Court abuse its discretion when it deni 

Carolyn's request for attorney fees? 

Finally, Carolyn maintains that the court abused its 

discretion when it refused to order Jeffery to pay her attorney 

fees after she was named as primary residential custodian. 

Section 40-4-110, MCA, provides that a court may, after 

considering the financial resources of both parties, order a party 

to pay reasonable costs and attorney fees to the other party in any 

dissolution or custody proceeding. When reviewing the discretion 

vested in the district court under this statute, this Court will 

not disturb a district court's findings on appeal if there is 

substantial evidence to support those findings. In re Mam'age of Hall 

(1990), 244 Mont. 428, 798 P.2d 117. 

In this instance, the court first noted that Carolyn failed to 

satisfy a showing of necessity which is a condition precedent to an 

award of attorney fees. In reMam'age ofForsman (1987) , 229 Mont. 411, 

747 P.2d 861. Carolyn failed to testify concerning her inability 

to pay the fees in question on numerous occasions when testimony 

would have been appropriate, and never demonstrated Jeffery's 
ability to pay the fees requested. The court also noted that both 

Jeffery and Carolyn were responsible for the fact that excessive 

attorney fees had been incurred during this prolonged litigation, 

and as such, neither party should be responsible for paying the 

other's costs. 

We have previously held that when a trial court refuses to 

award attorney fees, the underlying reasoning must be indicated in 

the findings of fact. Forsmaiz, 747 P.2d at 864. In this instance, 

the court clearly set forth and substantiated its reasoning for not 

granting Carolyn's request. We hold that the District Court did 

not abuse its discretion when it refused to award attorney fees to 

Carolyn. 

The decision of the District Court is affirmed. 

We concur: 
March 9, 1993 

CERTIFICATE OF SERVICE 

I hereby certify that the following order was sent by United States mail, prepaid, to the 

following named: 

John L. Hollow 

Attorney at Law 

44 W. 6th St. 

Helena, MT 59601 

Greg W. Duncan and John P. Poston 

Harrison, Loendorf & Poston 

2225-11th Ave., Ste. 21 

Helena, MT 59601 

Randi Hood, Esq. 

L & C County Courthouse 

228 Broadway 

Helena, MT 59623 

ED SMITH 

CLERK OF THE SUPREME COURT 

STATE OF MONTANA