No. 80-393 INTHE SUPREME COURT OF THE STATE OF MONTANA 1981

INRE THE MARRIAGE OF LINDA MARIE THOMPSON, Petitioner and Respondent,
-vsKENNETH NEAL THOMPSON, Respondent and Appellant.

Appeal from: DistrictCourt of theEighth 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: ArtTadewaldt, Montana Legal Services, Great Falls, Montana

Filed: -- - Submitted on Briefs: April 15, 1981 Decided: July 2, 1981


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# - 1981Mr. 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 supportpayments and disposing of personal property. We affirm. KennethNeal Thompson and Linda Marie Thompson were married onNay 31, 1974. They lived for a time on Kenneth's parents' ranchnear Wolf Creek,Montana. A son,Kenneth Edward Thompson,was born onAugust 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. Dissolutionproceedings were initiated by Linda in July 1979. Themarriage was dissolved
onAugust 5, 1980. On August 26, 1988, the District Court made its findings of fact, conclusionsof law and decree concerning child custody, child support and disposition of property. Lindawas awarded custody of the son, subject to the father's reasonable rights of visitation. Kennethwas ordered to pay child support in the amount of $200per month. Lindawas awarded the following property: a washer and dryer, an antique table, a 1971 Dodge Charger or its value, the clothing and personal effectsbelonging 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 supportat $200per 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 DistrictCourt's findingsand conclusions. We will not now setout the evidence presented below. Wehave 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 interestsof 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 Mont

# . against the findings. Jensenv. Jensen (1979),

## - - 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 employmentof conscientious judgment. Jerome
v. Jerome (1978), 175Mont. 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 Lindawas represented by Montana Legal Services Association? Linda reliesprimarily on federal civil rights cases to supporther assertion that representationby Legal Services should not bar an award of fees. However, in the cases cited in her brief, the awardswere based either on the Civil Rights Attorney's FeesAwards Act of 1976, 42U.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 jurisdictionwhich has not adopted the Uniform Marriage and DivorceAct. 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),

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## , 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. Ithas been held in Colorado, a statewhich has adopted theUniform Act, that the statutory provision for assessment of attorney's fees was intended to equalize the status of the parties to the dissolutionproceeding. 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 showno 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: