IN THE SUPREME COURT OF THE STATE OF MONTANA 

1993 

IN RE THE CUSTODY OF 

R.R.K., R.D.K., and L.M.K., 

Minor Children. 

IN RE THE MARRIAGE OF 

JEFF KOLPIN, 

Petitioner, 

and 

JEANNETTE KOLPIN, 

Respondent, 

-vsNORMOND and BEVERLY KOLPIN, 

Third-Party Petition 

and Appellants. 

No. 92-424 

) 

No. 92-495 

) 

APPEALS FROM: District Court of the Seventh Judicial District, In and 

for the County of McCone; the Honorable Richard G. 

~hillips, District Court Judge presiding (No. 92-424) 

~istrict Court of the Seventh Judicial District, In and 

for the County of Dawson; the Honorable Richard G. 

Phillips, District Court Judge presiding (No. 92-495) 

COUNSEL OF RECORD: 

For Appellant: 

Rodd A. Hamman; Calton, Hamman & Wolff, Billings, Montana 

For Respondent: 

Richard A. Simonton; Simonton, Howe & Schneider, 

Glendive, Montana 

. . Richard L. Burns, Attorney at Law, Glendive, Montana 

(for the children) - 

t Submitted on Briefs: April 20, 1993 
Justice Karla M. Gray delivered the Opinion of the Court. 

Normond and Beverly Kolpin (the Kolpins) appeal from orders of 

the Seventh Judicial District Court, Dawson County, and the Seventh 

Judicial District Court, McCone County, denying and dismissing 

their efforts to seek custody of their grandchildren, imposing 

sanctions and awarding certain attorney's fees. The appeals from 

the Dawson County dissolution proceeding and McCone County custody 

action were consolidated by this Court. We affirm in part, reverse 

in part and remand. 

We phrase the issues on appeal as follows: 

1) Are non-parents entitled to seek custody of a child under 

the Uniform Marriage and Divorce Act, through either an independent 

custody proceeding or intervention in a dissolution proceeding? 

2) Did the District Court err in imposing Rule 11 sanctions 

on the Kolpins in the custody action? 

3) Did the District Court err in ordering the Kolpins to pay 

Jeff Kolpin's share of the children's attorney's fees in the 

dissolution action? 

4) Did the District Court err in awarding Jeannette Kolpin 

attorney's fees incurred in opposing the Kolpins' motion for a stay 

of execution in the dissolution action? 

Jeff and Jeannette Kolpin were married in March of 1982. Due 

to inadequate health services where the couple resided, Jeannette 

soon moved to Billings to live with Jeff's parents, the Kolpins, 

pending the birth of her and Jeff's first child. Russell Kolpin 

was born on May 21, 1982, and Jeannette and Russell remained with 

2 
the Kolpins for approximately one month following his birth. In 

October, 1983, Jeannette and Russell moved back in with the Kolpins 

to facilitate Jeannettefs psychological treatment at a nearby 

clinic. During this stay, Jeff and Jeannette's second son, 

Raymond, was born on December 16, 1983. Jeannette and the two 

children lived with the Kolpins until February, 1984. Jeannette 

and the children also lived with the Kolpins for approximately two 

months following the birth of a third child, Leanne, on June 26, 

1985. 

In April, 1987, Jeff and Jeannette brought all three children 

to live with the Kolpins while they attempted to work out their 

marital difficulties. On April 9, 1987, Jeff Kolpin executed an 

affidavit directing the Kolpins to care for the three children; the 

document stated that the children were placed in the Kolpinsf care 

due to Jeannette's hospitalization and out-patient treatment for 

mental disorders. In 1988, Jeff and Jeannette separated. Jeff 

moved to Glendive, Montana, and Jeannette moved to her parents1 

ranch in Circle, Montana. 

All three children continued to live with the Kolpins until 

August 5, 1988. On that date, Jeannette and hex parents, Joe and 

Elaine Wittkopp, arrived in Billings and told the Kolpins that they 

were taking the two younger children on a picnic. Raymond and 

Leanne were not returned to the Kolpins at the end of the day; 

instead, the Wittkopps took the two children back to Circle. 

Russell was visiting his father on the day Raymond and Leanne 

were taken to Circle. Russell continued to live in Billings with 
the Kolpins until he moved in with Jeff in Glendive in September, 

1988. The Kolpins had frequent contact with Russell during the 

time he lived with his father. When Jeff began working night 

shifts, Beverly Kolpin moved to Glendive and rented the apartment 

above Jeff's to care for Russell. After the 1988-89 school year, 

Russell and Beverly returned to live in Billings. Russell 

continued to live with the Kolpins. 

Jeff Kolpin filed a petition for dissolution in February of 

1989. As a result of the parents' dispute over child custody, the 

District Court appointed an attorney to represent the interests of 

the children; the court ordered Jeff to pay for the children's 

attorney's fees. 

The Kolpins filed a petition for grandparents' visitation 

rights as a separate cause of action from the dissolution 

proceeding in June, 1989. In October of 1989, they filed a motion 

to intervene in the dissolution action, seeking custody of the 

three children and joinder of their visitation action with the 

dissolution action. After a hearing on the Kolpins' motion for 

intervention and joinder, Dawson County District Court Judge Dale 

Cox granted the Kolpins' motion for joinder of the visitation claim 

with the dissolution action, but denied their motion to intervene 

regarding custody. The court did not issue findings, conclusions 

or a supporting memorandum with this order. 

In November of 1990, in conjunction with a contempt citation 

for failure to pay costs assessed against him, the court struck 

Jeff's request for custody and issued an order precluding Jeff from 
presenting evidence against an award of custody to Jeannette. Jeff 

moved for relief from the order, which was denied after a hearing. 

Soon after the hearing, Jeff disappeared. Because Jeff's counsel 

could not locate him, the court granted counsel's motion to withdraw from the proceedings. District Court Judge Richard Phillips 

assumed jurisdiction of the dissolution proceeding in March, 1991. 

In March of 1992, the Kolpins filed an independent petition 

for custody of the three children in McCone County, where Raymond 

and Leanne resided. Jeannette moved to dismiss the petition and 

requested sanctions against the Kolpins under Rule 11, M.R.Civ.P. 

The District Court, Judge Phillips presiding, dismissed the 

Kolpins' independent petition for custody and awarded Jeannette 

attorney's fees under Rule 11, M.R.Civ.P. 

Judge Phillips also presided over the hearing in the Dawson 

County dissolution action on June 8, 1992. Because Jeannette had 

agreed that the Kolpins were entitled to visitation and the court 

had denied their motion to intervene regarding custody, the 

District Court allowed the Kolpins to present evidence only 

regarding the amount of visitation they believed was appropriate. 

The District Court issued findings of fact, conclusions of law 

and decree of dissolution on July 1, 1992. The court determined 

that it was in the best interests of the children to award custody 

to Jeannette, with reasonable visitation rights to Jeff and the 

Kolpins. The court expressed concerns about Jeannette's ability to 

care for the three children but concluded that, with the help of 

her parents and sister-in-law, Jeannette could adequately care for 
the children in Circle. The District Court also ordered the 

Kolpins to pay half of the children's attorney's fees, because Jeff 

had "no intention of doing so." 

The Kolpins subsequently filed a motion for a stay of 

execution regarding Russell's custody. The District Court denied 

the stay motion. Although the court concluded the motion was made 

in good faith, it ordered the Kolpins to pay Jeannette's attorney's 

fees incurred in opposing the motion. This appeal follows. 

Are non-parents entitled to seek custody of a child under the 

Uniform Marriage and Divorce Act, through either an independent 

custody proceeding or intervention in a dissolution proceeding? 

The Kolpins contend that 5 40-4-211, MCA, expressly entitles 

them to petition for custody of the three children and, 

consequently, entitles them to intervene in the dissolution action. 

They assert that the District Courts erred as a matter of law in 

dismissing their independent petition for custody in McCone County 

(DR 92-07) and denying their motion to intervene in Dawson County 

(DR 89-011). Our review of a court's legal conclusion is plenary. 

Steer, Inc. v. Dep't of Revenue (1990), 245 Mont. 470, 475, 803 

P.2d 601, 603. 

Section 40-4-211, MCA, sets forth the procedural and 

jurisdictional standards for a child custody proceeding under the 

Uniform Marriage and Divorce Act (the Act). Subsection (4) of 

3 40-4-211, MCA, reads: 

(4) A child custody proceeding is commenced in the 

district court: 

(a) by a parent, by filing a petition: 

(i) for dissolution or legal separation; or 

(ii) for custody of the child in the county in 

6 
which he is permanently resident or found; or 

(b) by a person other than a parent, by filing a 

petition for custody of the child in the county in 

which he is permanently resident or found, but only 

if he is not in the physical custody of one of his 

parents. 

The statute provides three distinct methods of instituting a 

child custody proceeding: 1) a parent may file a petition for 

dissolution or legal separation; 2) a parent may file a petition 

for custody; or 3) a non-parent may file a petition for custody. 

This Court must give effect to each provision of the statute; it is 

not our function to omit what the legislature has included. 

Section 1-2-101, MCA. 

The plain language of g 40-4-211 (4) (b) , MCA, authorizes a nonparent to commence a custody proceeding by filing a petition. 

However, it is equally clear that the non-parent must satisfy the 

"standing" requirement by demonstrating that the child is not in 

the physical custody of one of his parents. Henderson v. Henderson 

(1977), 174 Mont. 1, 5, 568 P.2d 177, 179. 

In Henderson, the mother and father each were awarded custody 

of one of their children following dissolution of their marriage; 

the couple then agreed that the father should retain temporary 

custody of both children pending further proceedings. When the 

father died unexpectedly, an aunt filed a petition for custody of 

both children under g 48-331 (4) (b) , RCM (1947) , the predecessor to 

3 40-4-211(4) (b) , MCA. 

We concluded that "[tlhe aunt did not have standing to begin 

a custody proceeding. . ." under the statute. Henderson, 568 P.2d 
at 179. Finding no merit in the aunt's argument that she met the 

standing requirement because the children were being cared for by 

a babysitter at the time of the father's death, we stated: 

"Physical custody" is not limited to having actual, 

immediate control of the physical presence of the child. 

Rather, this phrase relates to the custodial rights 

involved in the care and control of the child. [Citations 

omitted. ] To interpret this phrase otherwise would allow 

a non-parent to file a petition for custody anytime the 

child is out of the physical presence of the parent or 

parents, even if for a few minutes or under the watchful 

eyes of an authorized babysitter. 

Henderson, 568 P.2d at 179. We emphasized that, upon the father's 

death, the mother assumed the legal right to custody of her 

children pursuant to statute. The mother had not relinquished that 

custody. Henderson, 568 P.2d at 179. We went on to explain that, 

where one'of the parents has physical custody of the child, a nonparent may seek custody only under the stricter standards of the 

abuse, neglect and dependency statutes. Henderson, 568 P.2d at 

Thus, pursuant to Henderson, the standing requirement for a 

non-parent seeking custody does not depend on who has actual, 

physical possession of the child at the moment the petition is 

filed. Rather, the court should focus on whether the parent 

actually relinquished physical custody of the child and how long 

the parent and child were separated. 

While Henderson is the only case in which this Court has 

focused on the standing requirement contained in g 40-4-211 (4) (b) , 

MCA, the courts of Illinois have developed a comprehensive body of 

case law interpreting Illinois' statutory counterpart. In 
accordance with the mandate of 40-4-102, MCA, to apply and 

construe the provisions of the Uniform Marriage and Divorce Act 

uniformly with those states that have enacted it, we properly look 

to the Illinois cases for guidance in further developing Montana 

law on this issue. 

The Illinois courts have focused on two factors in determining 

whether a child is in the physical custody of the parent for 

purposes of non-parental standing to commence custody proceedings. 

These factors are: 1) whether the parent voluntarily relinquished 

physical custody of the child; and 2) the duration of the 

separation of the parent and child. See In re Custody of Peterson 

(Ill. 1986), 491 N.E.2d 1150, 1152; In re Custody of Barokas (Ill. 

App. 1982), 440 N.E.2d 1036, 1042; In re Custody of Menconi (Ill. 

App. 1983), 453 N.E.2d 835, 838-9. When these factors are weighed, 

the court can then determine whether the child is in the physical 

custody of his or her parent for purposes of non-parental standing 

to commence a custody proceeding. An examination of two factually 

distinct Illinois cases illustrates the interplay between these 

factors. 

In Menconi, the father asked his parents to care for his child 

shortly after her mother died; the child continued to live with her 

grandparents for six and a half years. Menconi, 453 N.E. 2d at 838. 

The father then appeared and removed the child from the 

grandparents' home by force. When he refused to return the child, 

the grandparents filed a petition for custody under the Act. The 

father argued that the grandparents could not meet the standing 
requirement because he had physical custody of his child. Menconi, 

453 N.E.2d at 837. 

The Illinois Court of Appeals disagreed, stating that the 

father could neither gain physical custody nor deprive the 

grandparents of physical custody by abducting the child. Menconi, 

453 N.E.2d at 838. The court refused to allow the father to gain 

an advantage through his wrongful conduct by forcing the 

grandparents to proceed under the stricter standards of the 

juvenile court act. The court concluded that, because the father 

had voluntarily relinquished custody of his child and she had lived 

with her grandparents for six and a half years, the grandparents 

had standing to seek custody under the Act. Menconi, 453 N.E. 2d at 

839. 

In Hanson v. McGowan (Ill. App. 1990), 555 N.E.2d 80, 83, a 

mother and child lived with the child's paternal grandparents 

following the disappearance of the father. The mother left to find 

better housing and returned for her child about three days later. 

The grandparents refused to relinquish the child and filed a 

petition for custody. Hanson, 555 N.E.2d at 81. The Illinois 

Court of Appeals concluded that the grandparents did not have 

standing to file a petition, as the mother had not relinquished 

physical custody of her child. Hanson, 555 N.E.2d at 83. In 

contrast to Menconi, the mother voluntarily left her child at the 

grandparents, butthe three-day duration of the separation was not 

sufficient to divest the mother of physical custody. 

The Illinois courts also have clarified a procedural aspect 
regarding this issue. Once the standing requirement is met and the 

custody proceeding goes forward under the Act, the court determines 

custody based on the best interests of the child; a finding of 

unfitness is not required. Montgomery v. Roudez (Ill. App. 1987), 

509 N.E.2d 499, 501-2. 

We adopt the approach of the Illinois courts and conclude that 

9 40-4-211(4) (b) , MCA, entitles a non-parent to commence a child 

custody proceeding by filing a petition, provided the non-parent 

can establish standing by demonstrating that the child is not in 

the physical custody of his or her parent or parents. To determine 

whether the parent has physical custody of the child, the court 

must consider whether the parent's initial relinquishment of 

physical custody was voluntary and examine the duration of the 

separation of parent and child. If the non-parent successfully 

establishes standing, the custody determination will be based on 

the best interests of the child pursuant to § 40-4-212, MCA. 

Jeannette argues that our decision in In re Marriage of Miller 

(1992), 251 Mont. 300, 825 P.2d 189, mandates rejection of any 

entitlement in non-parents to seek custody under the Act. Indeed, 

in the McCone County proceeding, the District Court relied on 

Miller in dismissing the Kolpins' petition. According to the 

District Court, Miller holds that non-parents may not bring an 

independent action for custody and that custody can be taken from 

a natural parent only through the procedures set forth in the child 

abuse, neglect and dependency statutes. Notwithstanding the 

District Court's good faith effort in applying Miller here, Miller 
is distinguishable. 

In Miller, the mother initially was awarded custody of the 

couple's two children and her son Christopher from a prior 

relationship. The Department of Family Services subsequently 

transferred physical custody of the children from their mother to 

Mr. Miller. Three months later, Mr. Miller filed a petition to 

modify custody of all three children, arguing that he met the 

standing requirement of 5 40-4-211(4) (b), MCA, when he filed the 

petition because he had physical custody of all three children. We 

concluded that Mr. Miller had met the modification requirements of 

5 40-4-219, MCA, as to the two children who were issue of the 

marriage. His petition to modify his stepson's custody resulted in 

the language relied on by the District Court here. 

Miller did not involve an original custody proceeding. 

Rather, Mr. Miller sought to modify custody. As such, the 

provisions of 55 40-4-211 (4) , MCA, which address the commencement of 

a child custody proceeding, were not applicable there. We held 

that a change of custody as to Christopher required the procedures 

contained in the child abuse, neglect and dependency statutes. 

Miller, 825 P.2d at 193. 

In addition, it is clear that Mr. Miller could not have 

prevailed on his 5 40-4-211(4) (b), MCA, argument in an original 

custody proceeding under the standards enunciated herein. There, 

the Department of Family Services removed the children from their 

mother pursuant to 5 41-3-301, MCA; Mrs. Miller did not voluntarily 

relinquish physical custody of Christopher. Because Mr. Miller 
could not have met the standing requirement for a non-parent to 

seek custody under the Act, the abuse, neglect and dependency 

statutes provided the appropriate avenue regarding custody of 

Christopher. See Henderson, 568 P.2d at 181. To apply Miller to 

the facts now before us would effectively delete g 40-4-211(4) (b), 

MCA, from the Act. 

Returning to the Kolpins' independent custody proceeding in 

McCone County Cause No. DR 92-07, we express no opinion as to 

whether the Kolpins can establish standing sufficient to maintain 

an independent custody action under § 40-4-211(4) (b) , MCA. Neither 

the District Court in McCone County nor Jeannette has had an 

opportunity to address the Kolpins' petition under the parameters 

set forth herein. We conclude, however, that the District Court 

erred in summarily dismissing the Kolpins' independent petition for 

custody. 

The Kolpins also appeal the denial of their motion to 

intervene in the Dawson County dissolution proceeding, Cause No. DR 

89-011. They assert that their right to commence an independent 

proceeding for custody gives them a corresponding right to 

intervene regarding custody in the dissolution proceeding. This 

Court recently clarified the standards regarding motions to 

intervene. In In re Marriage of Aniballi (Mont. 1992), 842 P.2d 

342, 344, 49 St.Rep. 995, 996, we held that a prima facie showing 

must be made to support a claim for intervention under Rule 24(a), 

M.R.Civ.P. Thus, a non-parent seeking custody must make a prima 

facie showing that the child is not in the physical custody of his 
or her parents to intervene in a dissolution proceeding. 

We emphasize that the right of intervention premised on an 

entitlement to file an independent petition for custody under § 40- 

4-211(4) (b) , MCA, does not infringe on the district courtf s 

discretion regarding all other intervenors, as set forth in 5 40-4- 

211(5), MCA: 

Notice of a child custody proceeding shall be given to 

the child's parent, guardian, custodian, those persons 

having physical. custody of the child, and all other 

contestants, who may appear, be heard and file a 

responsive pleading. The court, upon a showing of good 

cause, may permit intervention of other interested 

parties. 

Rather, the intervention discussed in subsection (5) parallels the 

permissive intervention of Rule 24 (b) , M. R. Civ. P. For example, 

once a child custody proceeding has commenced under § 40-4-211(4), 

MCA, the district court may, in its discretion, allow intervention 

by interested parties who may not be seeking custody but wish to 

appear and be heard. We repeat, however, that if a non-parent 

moves to intervene regarding custody in an ongoing dissolution 

proceeding and presents a prima facie case demonstrating that the 

child is not in the physical custody of his or her parents, a 

district court must grant the motion. 

Here, the Dawson County District Court issued no findings, 

conclusions or memoranda with its order denying the ~olpins' motion 

to intervene in the dissolution proceeding. Therefore, we cannot 

review the legal basis for the court's denial of the motion to 

intervene. For reasons similar to those discussed above, we 

conclude that the District Court erred in summarily denying the 
Kolpinsf motion to intervene in the Dawson County dissolution 

proceeding, Cause No. DR 89-011. 

We note here Jeannette's argument that denial of the Kolpins' 

motion to intervene is not properly before us. She contends that 

the denial of the Kolpins' motion to intervene is not a separately 

appealable order under Rule 1, M.R.App.P., and, therefore, it is 

not appealable at any time. She argues that the Kolpins were 

obligated to seek a writ of supervisory control within thirty days 

of the District Court's denial of their motion to intervene. These 

arguments verge on the frivolous. 

It is true that an order denying a motion to intervene is not 

an appealable order under Rule 1, I4.R.App.P. However, the proper 

appeal from such an interlocutory order lies after entry of final 

judgment. Rule 2(a), M.R.App.P.; Continental Ins. Co. v. Bottomly 

(1988), 233 Mont. 277, 280, 760 P.2d 73, 75-6; Estate of Schwenke 

v. Becktold (1992), 252 Mont. 127, 130-1, 827 P.2d 808, 810. This 

is the avenue taken by the Kolpins here. 

Furthermore, although an application for a writ of supervisory 

control is sometimes used to seek immediate review of an 

interlocutory order, such applications are justified only where 

there is no remedy by appeal or other remedial procedure to provide 

relief and where extraordinary circumstances are present. State v. 

Tollefson (1989), 239 Mont. 305, 306, 780 P.2d 6 621. The 

Kolpinsf failure to seek a writ of supervisory control following 

the denial of their motion to intervene does not affect their right 

of appeal. We conclude that the Kolpins properly appealed the 
denial of their motion to intervene after the District Court 

entered its findings of fact, conclusions of law and decree of 

dissolution 

Did the District Court err in imposing Rule 11 sanctions on 

the Kolpins in the custody action? 

In imposing sanctions against the Kolpins in their independent 

custody proceeding, the District Court determined that the Miller 

decision was so clear and unambiguous that the Kolpins' petition 

for custody could not be said to be warranted by existing law or by 

a good faith argument to change the law. We have stated that to 

avoid sanctions under Rule 11, M.R. Civ. P., it is not necessary that 

a party be correct in his or her interpretation of the law, but 

only that the party make a good faith argument within his or her 

view of the law. In re Adoption of R.D.T. (1989), 239 Mont. 33, 

36, 778 P.2d 416, 418. 

The Kolpins based their custody petition on the plain language 

of 5 40-4-211, MCA, and we have concluded that 5 40-4-211, MCA, 

entitles a non-parent to commence a custody proceeding if the 

standing requirement is demonstrated. We conclude, therefore, that 

Rule 11 sanctions were not warranted in this situation. See 

Sundheim v. Reef Oil Corp. (1991), 247 Mont. 244, 258, 806 P.2d 

503, 512. 

Did the District Court err in ordering the Kolpins to pay Jeff 

Kolpin's share of the children's attorney's fees in the dissolution 

action? 

Soon after the dissolution proceeding was commenced, the 

District Court appointed an attorney to represent the interests of 

16 
the children and ordered Jeff to pay the children's attorney's 

fees. In its findings of fact and conclusions of law, however, the 

District Court ordered the Kolpins to pay one-half of those fees; 

the reason given was that Jeff had "no intention of doing so." The 

Kolpins assert that this rationale did not constitute a legal basis 

for ordering them to pay Jeff's obligation. We agree. The Kolpins 

have no responsibility to assume the debts of their adult son and 

the court cited no authority permitting it to shift this obligation 

to the Kolpins. 

Jeannette contends that § 40-4-110, MCA, authorizes the 

District Court to require the Kolpins to pay Jeff's share of the 

children's attorney's fees. Section 40-4-110, MCA, reads: 

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 proceeding under chapters 

1 and 4 of this title and for attorney's fees . . . . 

Section 40-4-110, MCA, is not applicable here. This provision 

relates to awarded costs and attorney's fees of the other party 

under certain circumstances. Jeff's share of the children's 

attorney's fees was not incurred by Jeannette as contemplated by 

the statute. Therefore, 40-4-110, MCA, simply is not available 

as a basis for requiring the Kolpins to pay Jeff's obligation. 

We note that the District Court did not rely on the language 

of § 40-4-205, MCA, in its findings and conclusions, nor do the 

parties argue that 5 40-4-205, MCA, is applicable. Accordingly, we 

do not address whether the District Court could have required the 

Kolpins to pay for half of the children's attorney's fees pursuant 
to § 40-4-205, MCA. We conclude, however, that the District Court 

erred in ordering the Kolpins to pay one-half of the children's 

attorney's fees in the dissolution action on the basis given. 

Did the District Court err in awarding Jeannette Kolpin 

attorney9s fees incurred in opposing the Kolpinsf motion for a stay 

of execution in the dissolution action? 

Following entry of the dissolution decree in Dawson County, 

the Kolpins applied for a stay of execution concerning the custody 

of Russell and filed their notice of appeal of the findings of 

fact, conclusions of law and decree of dissolution. In opposing 

the stay motion, Jeannette requested attorney's fees under g 40-4- 

110, MCA, or Rule 11 sanctions. The District Court denied the stay 

motion, concluding that the reunification of the children was of 

primary importance. Because Russell had resided with the Kolpins 

for several years, the District Court reasoned that the Kolpins' 

request for continuation of the arrangement pending appeal was not 

taken in bad faith. However, the court concluded that due to 

Jeannette Kolpinfs limited financial resources, it was appropriate 

to award her attorney's fees incurred in responding to the motion 

for stay of execution. 

The Kolpins argue that because the notice of appeal was filed, 

the District Court had jurisdiction to consider the stay but did 

not have jurisdiction to award attorney's fees. They also contend 

that, because the Wittkopps are paying Jeannette's attorney's fees 

and the purpose of attorney's fees under 5 40-4-110, MCA, is to 

equalize the positions of the parties, an award of attorney's fees 

to Jeannette was not warranted. 

18 
While the filing of a notice of appeal normally vests 

jurisdiction in this Court for all but ancillary matters, the 

district court is not completely powerless. Churchhill v. Holly 

Sugar Corp. (1981), 192 Mont. 533, 536, 629 P.2d 758, 760; State ex 

rel. Kaasa v. District Court (1978), 177 Mont. 547, 549, 582 P.2d 

772, 774. In Kaasa, a wife applied for temporary maintenance 

pending an appeal of the decree of dissolution. The district court 

declined rule the basis that the filing the notice of 

appeal divested it of jurisdiction to act in the divorce. Kaasa, 

582 P.2d. at 774. We concluded that the district court had 

jurisdiction to act on a petition for temporary maintenance filed 

after the notice of appeal, relying in part on that portion of the 

attorney's fees provision of the UMDA, which read: 

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 proceeding under this act 

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 

judqment. . . . [Emphasis added.] 

Section 48-327, RCM (1977 Cum. Supp.) ; Xaasa, 582 P.2d at 774. 

Kaasa illustrates the unique character of the district court's 

ongoing jurisdiction in dissolution proceedings. Section 40-4-110, 

MCA, specifically allows for attorney's fees incurred after entry 

of judgment. We conclude that the District Court had jurisdiction 

to award attorney's fees pursuant to 5 40-4-110, MCA, in this 

situation. 

Having cleared the jurisdictional hurdle, the question remains 

whether the award of attorney's fees was appropriate. A district 
court's award of attorneyr s fees under 5 40-4-110, MCA, will not be 

disturbed absent an abuse of discretion. In re Marriage of Becker 

(19901, 244 Mont. 469, 477, 798 P.2d 124, 129. Here, the District 

court considered the financial resources of both parties and 

concluded that the Kolpins should pay for the attorney's fees 

Jeannette incurred in opposing the motion for a stay. Although 

Elaine Wittkopp testified that the Wittkopps were paying 

Jeannette's attorney's fees, she also testified that Jeannette had 

paid some of the fees. Further, we find no evidence of record that 

Jeannette is not required to reimburse the Wittkopps for the fees. 

- See In re Marriage of Thompson (1981), 193 Mont. 127, 129-30, 630 

P.2d 243, 244. We conclude that the District Court did not abuse 

its discretion in awarding Jeannette attorney's fees incurred in 

opposing the Kolpins' motion for a stay of execution in the 

dissolution action. 

To recap the effect of this opinion on the two dockets below, 

we conclude that the District Court erred in dissolution proceeding 

Cause No, DR 89-011 in summarily denying the Kolpins' motion to 

intervene and in ordering the Kolpins to pay half of the children's 

attorney's fees because Jeff did not intend to do so; the District 

Court did not err in awarding Jeannette attorney's fees in opposing 

the Kolpinsl motion to stay execution. We remand Cause No. DR 89- 

011 for further proceedings consistent with this opinion, 

emphasizing that the findings of fact, conclusions 

decree of dissolution, to the extent not discussed 

of law and 

herein, are 
unaffected by this opinion 

In custody action Cause No. DR 92-07, we conclude that the 

District Court erred in summarily dismissing the Kolpins' petition 

for custody and in imposing Rule 11 sanctions against the Kolpins. 

We remand that action only for such further proceedings regarding 

the sanctions as may be necessary, noting that the matter of 

custody will be determined on remand in Cause No. DR 89-011. 

Finally, we note that it appears that neither party has any further 

contacts with Dawson County; in this regard, the parties may wish 

to stipulate to hold any further hearings which may be necessary in 

McCone County. 

Affirmed in part, reversed in part, and remanded. 

We concur: 

for Retired Justice R.C. McDonough 
August 27, 1993 

CERTIFICATE OF SERVICE 

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

named: 

Rodd A. Hamman & Robin A. Wolff 

Calton, Hamman & Wolff 

2075 Central Ave. 

Billings, MT 59102 

Richard A. Simonton and Marvin Howe 

Simonton, Howe & Schneider 

P.O. Box 1250 

Glendive, MT 59330 

Richard L. Bums 

Attorney at Law 

P.O. Box 6 

Glendive, MT 59330 

ED SMITH 

CLERK OF THE SUPREME COURT 

STAP OF MONTANA