No. 80-393 

IN THE SUPREME COURT OF THE STATE OF MONTANA 

1981 

IN RE THE MARRIAGE OF 

LINDA MARIE THOMPSON, 

Petitioner and Respondent, 

-vsKENNETH NEAL THOMPSON, 

Respondent and Appellant. 

Appeal from: District Court of the Eighth Judicial District, 

In and for the County of Cascade, The IIonorable, 

Joel G. Roth, Judge presiding. 

Counsel of Record: 

For Appellant: 

Smith & Harper, ~elena,' Montana 

For Respondent : 

Art Tadewaldt, Montana Legal Services, Great Falls, 

Montana 

Filed : 

-- - 

Submitted on Briefs: April 15, 1981 

Decided: July 2, 1981 

JUL 2 - 1981 
Mr. Justice Fred J. Weber delivered the Opinion of the Court. 

Kenneth Neal Thompson appeals from the order of the 

District Court of the Eighth Judicial District, in and for 

the County of Cascade, awarding child custody, setting child 

support payments and disposing of personal property. We 

af firm. 

Kenneth Neal Thompson and Linda Marie Thompson were 

married on Nay 31, 1974. They lived for a time on Kenneth's 

parents' ranch near Wolf Creek, Montana. A son, Kenneth 

Edward Thompson, was born on August 5, 1976. The family 

moved to Oklahoma shortly after the child was born. The 

father returned to Montana in May 1978. Linda and the child 

did not return until May 1979. Dissolution proceedings were 

initiated by Linda in July 1979. The marriage was dissolved 

on August 5, 1980. On August 26, 1988, the District Court 

made its findings of fact, conclusions of law and decree 

concerning child custody, child support and disposition of 

property. Linda was awarded custody of the son, subject to 

the father's reasonable rights of visitation. Kenneth was 

ordered to pay child support in the amount of $200 per 

month. Linda was awarded the following property: a washer 

and dryer, an antique table, a 1971 Dodge Charger or its 

value, the clothing and personal effects belonging to her 

and the child, and the baby furniture. 

On appeal, Kenneth argues that the ~istrict Court 

abused its discretion in awarding custody of the child to 

Linda, in setting child support at $200 per month and in 

disposing of the property as noted above. In essence, all 

of the issues raised attack the sufficiency of the evidence 

to support the District Court's findings and conclusions. 

We will not now set out the evidence presented below. We 
have reviewed the record, and hold that the evidence supports 

the conclusion that the award of custody of the son to Linda 

is in the best interests of the child. Kenneth has failed 

to show that there was a clear abuse of discretion by the 

District Court, has not overcome the presumption that the 

judgment of the District Court was correct, and has not 

demonstrated that there is a clear preponderance of evidence 

against the findings. Jensen v. Jensen (1979), - Mont . - 1 

597 P.2d 733, 734, 36 St.Rep. 1259, 1261. We also hold that 

the District Court did not abuse its discretion in the award 

of support or in the disposition of property. The record 

does not disclose an arbitrary exercise of discretion 

without the employment of conscientious judgment. Jerome 

v. Jerome (1978), 175 Mont. 429, 574 P.2d 997. 

Although Linda did not cross-appeal, she raises one 

issue under Rule 14, M.R.App.Civ.P. Did the District Court 

err in refusing to order Kenneth to pay Linda's attorney's 

fees, pursuant to section 40-4-110, MCA, because Linda was 

represented by Montana Legal Services Association? 

Linda relies primarily on federal civil rights cases to 

support her assertion that representation by Legal Services 

should not bar an award of fees. However, in the cases 

cited in her brief, the awards were based either on the 

Civil Rights Attorney's Fees Awards Act of 1976, 42 U.S.C. 5 

1988, or on a private attorney general theory. The only 

dissolution case cited, Ferrigno v. Ferrigno (1971), 115 

N.J. Super. 283, 279 A.2d 141, is from a jurisdiction which 

has not adopted the Uniform Marriage and Divorce Act. A 

showing of necessity is a condition precedent to the exercise 

of the court's discretion to grant attorney's fees under the 

Uniform Marriage and Divorce Act, section 40-4-110, MCA. 
In re Marriage of Brown (1978), - Mont . - , 587 P.2d 361, 

367, 35 St.Rep. 1733, 1740. A party who has applied for and 

received the assistance of Legal Services in a dissolution 

action has thereby removed any personal necessity to seek 

the payment of fees from the former spouse. It has been 

held in Colorado, a state which has adopted the Uniform 

Act, that the statutory provision for assessment of attorney's 

fees was intended to equalize the status of the parties to 

the dissolution proceeding. In re Marriage of Franks (1975), 

189 Colo. 499, 542 P.2d 845, 851. In interpreting the 

attorney's fees provision of the Uniform Marriage and Divorce 

Act as adopted in Kentucky, the Supreme Court of that state 

said that "[ilt is readily apparent that the authority of 

the court to order the payment of an attorney's fee in a 

divorce action does not exist for the protection of the 

attorney, but is strictly for the benefit of the client.' 

Sullivan v. Levin (Ky. 1977), 555 S.W.2d 261, 263. Linda 

could show no necessity for an award of attorney's fees. 

The District Court did not err in refusing to grant fees to 

her. 

The order of the District Court is affirmed. 

We Concur: