SOLIE v SOLIE

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No. 13310 IN THE SUPREME COURT OF THE STATE OF MONTANA 1977 MURIEL R. SOLIE, Plaintiff and Respondent, -vsROBERT L. SOLIE, Defendant and Appellant. Appeal from: District Court of the Fourteenth Judicial District, Honorable Nat Allen, Judge presiding. Counsel of Record: For Appellant: ~ibbs, Sweeney and Colburg, Billings, Montana For Respondent: Jones, Olsen and Christensen, Billi.ngs, Montana Paul G. Olsen argued, Billings, Montana The matter is deemed submitted on briefs. Submitted: Decided : January 26, 1977 MAR 10 1971 M r . J u s t i c e Gene B. Daly d e l i v e r e d t h e Opinion of t h e Court. T h i s i s an appeal by Robert L. S o l i e , t h e f a t h e r , from a f i n a l modified judgment of t h e d i s t r i c t c n u r t , Musselshell County, denying h i s r e q u e s t f o r i n c r e a s e d v i s i t a t i o n r i g h t s w i t h h i s minor c h i l d P e t e r and g r a n t i n g t h e c r o s s - p e t i t i o n of Muriel S o l i e , t h e mother, f o r r e d u c t i o n of R o b e r t ' s v i s i t a t i o n r i g h t s , i n c r e a s e of support and a t t o r n e y f e e s . Muriel was g r a n t e d a d i v o r c e from Robert on February 3 , 1969. The d e c r e e i n c o r p o r a t e d a p r o p e r t y s e t t l e m e n t agreement whereby Muriel r e c e i v e d R o b e r t ' s i n t e r e s t i n t h e family home, s u b j e c t t o a mortgage, alimony i n t h e amount of $250 p e r month through September 1, 1971, support of $100 p e r month f o r each o f t h e two minor c h i l d r e n , Suzanne age 9 y e a r s and P e t e r age 2 y e a r s , a t t o r n e y f e e s , t h e family c a r and s a t i s f a c t i o n of a l l o t h e r o b l i g a t i o n s of t h e p a r t i e s . I n a d d i t i o n , Robert agreed t o maintain a p o l i c y of l i f e i n s u r a n c e of $50,000 upon h i s l i f e w i t h t h e c h i l d r e n a s b e n e f i c i a r i e s . Robert S o l i e i s a 39 year o l d i n s u r a n c e man w i t h s u p e r v i s o r y d u t i e s t h a t r e q u i r e h i s absence from home s e v e r a l days a week. His new w i f e Ann i s a school t e a c h e r and t o g e t h e r they have a n income of $33,270. They have a 4 bedroom, 2 s t o r y home on 10 a c r e s of ground i n Emerald H i l l s n e a r B i l l i n g s , Montana and can provide horseback r i d i n g , s l e d d i n g , swimming and o t h e r a c t i v i t i e s a s s o c i a t e d with r u r a l l i v i n g . Residing i n t h e home a r e Suzanne, now age 15 (daughter of p a r t i e s h e r e t o ) ; J e f f r e y age 7 (Ann's by previous m a r r i a g e ) ; and J e n n i f e r , age 4 , t h e daughter of Robert and h i s new w i f e Ann. Muriel i s a 36 y e a r o l d school t e a c h e r w i t h h e r M a s t e r ' s degree and working on a D o c t o r ' s by t a k i n g s e v e r a l c l a s s e s a q u a r t e r at Eastern Montana College, BLllings, Montana. She has not remarried and lives in the small home she obtained in the divorce property settlement, with son Peter, now aged 9 years, the subject of this litigation. Her income is a gross of $11,500 per year, or $680 take home per month for 10 months. She has $400 in the Teacher's Credit Union saved for expenses during the two months she receives no salary and a bank balance of $70. She drives a 1967 Pontiac automobile. She purchased a TV for the children just last year for $1.00. Since the divorce in 1969 Robert has failed to meet his financial obligation in regard to support and has been delinquent most of the time. This has created a stormy and hostile atmosphere with several contempt proceedings, numerous execution writs, etc. from 1970 until the present. On June 21, 1971, the district court found it necessary to limit the visitation rights of %bert after hearing his petition for increased visitation. In its order the court stated: "* * * the Court deems it necessary that some firm direction be gi'ven to petitioner---defendant's visitation privileges * * *." In December 1978, the court agreed to again approve increased visitation for Robert which was rewarded in 1975 with a less than straightf6mrd maneuver by Robert to gain full custody of daughter Suzanne. The record further reveals a serious alienation has developed between Muriel and her daughter since custody went to Robert, which was evidencing itself during the custodial change. On January 2, 1976, Robert filed a petition to increase his temporary custody rights with the minor son Peter to include 7 alternate holidays, 6 weeks during the summer in addition to alternate weekends from Friday to Sunday. Muriel filed her cross-petition January 9, 1976 asking for a $50 per month increase in support for Peter and alleging Peter does not enjoy visitation at Robert's residence and asked for a decrease in visitation rights to Robert to one weekend a month, rather than the two now in effect and attorney fees in the amount The matter was heard on January 12, 1976 and the court filed its modified decree on March 3, 1976. After extensive findings of fact, the court made conclusions of law that the best interest of the minor child Peter Solie, so that there would be no mental or emotional detriment,would be best served by reduction ofthe visitation right to one weekend per month; granted the increase in child support to Muriel and awarded her $250 attorney fees. From this modified decree Robert appeals. The issue presented for review is the application of the facts of this case to the Uniform Marriage and Divorce Act, section 48-337, R.C.M. 1947, which establishes the statutory standard for limitation of noncustodial parent's visitation. The Uniform Marriage and Divorce Act does apply to this matter. Section 48-341(3), V. Holm, Mont . R.C.M. 2 1947; Richard W. Holm v. Allena P.2d , 34 St. Rep. 118, decided March 2, 1977. Section 48-337, R.C.M. 1947, provides in pertinent part: The Court may modify an order granting or denying "(2) visitation rights whenever modification would serve the best interest of the child; but the court shall not restrict a parent's visitation rights unless it finds that the visitation would endanger seriously the child's physical, mental, moral, or emotional health." Here Robert argues t h a t "The c o u r t d i d n o t f i n d , nor could i t f i n d on t h e evidence presented, t h a t t h e c u r r e n t v i s i t a t i o n schedule would endanger s e r i o u s l y P e t e r S o l i e ' s p h y s i c a l , mental, moral o r emotional h e a l t h . Rather t h e c o u r t i n Conclusion o f Law No. 1 applied t h e ' b e s t i n t e r e s t of c h i l d ' r a t i o n a l e i n concluding t h a t v i s i t a t i o n should be reduced. . That t e s t i s c l e a r l y not a p p l i c a b l e t o a reduction i n v i s i t a t i o n . " He f u r t h e r argues t h i s Court has n o t previously considered o r i n t e r p r e t e d t h e language contained i n s e c t i o n 48-337, R.C.M. 1947, and c i t e s t h e Court t o a Colorado d e c i s i o n t h a t very b r i e f l y alluded t o t h e problem, b u t does n o t d i s c l o s e any evidence i n t h a t case. He f u r t h e r quotes from t h e Commissioners' Note d i r e c t e d t o t h e "Act" under $407, 9 U.L.A. s e c t i o n 48-337, R.C.M. p. -509, which i s t h e same a s 1947: "* * * Although t h e standard i s n e c e s s a r i l y somewhat vague, i t was d e l i b e r a t e l y chosen t o i n d i c a t e i t s stringency when compared t o t h e ' b e s t i n t e r e s t ' standard t r a d i t i o n a l l y applied t o t h i s problem. The s p e c i a l standard was chosen t o prevent t h e d e n i a l of v i s i t a , t i o n t o noncustodial parent on t h e b a s i s of moral judgments about p a r e n t a l behavior which have no relevance t o t h e p a r e n t ' s i n t e r e s t i n o r capacity t o maintain a c l o s e and benign r e l a t i o n s h i p t o t h e c h i l d . The same onerous standard i s a p p l i c a b l e when c u s t o d i a l parent t r i e s t o have t h e noncustodial p a r e n t ' s v i s i t a t i o n p r i v i l e g e s r e s t r i c t e d o r eliminated." (Emphasis suppli-ed. ) The reference t o p a r e n t a l behavior i n t h e Commissioners' Note i s pointed a t t h e Uniform Marriage and Divorce Act $402 which was n o t adopted by Montana. The exact p e r t i n e n t language i n 6402 is: "The Court s h a l l n o t consider conduct of a proposed custodian t h a t does n o t a f f e c t h i s r e l a t i o n s h i p t o t h e child." See: 37 Montana Law Review, No. 1, p. 129. However, t h i s Court moved away from t h a t type of moral judgment sometime ago. Foss v. L e i f e r , 1309, 33 S t . Rep. 528, 530. - . Mont , 550 P.2d The standard of p h y s i c a l , moral, mental o r emotional h e a l t h used i n t h e Act does n o t introduce any new concepts i n t o t h e law a s it has e x i s t e d i n Montana f o r many years. See: Section 91-4515, R.C.M. 1947 (repealed i n 1975 by t h e adoption of t h e Uniform Marriage and Divorce A c t ) ; Gilmore v. Gilmore, 166 Mont. 47, 530 P.2d 480; G i l b e r t v. G i l b e r t , 166 Mont. 312, 316, 533 P.2d 1079; I n r e Adoption of Biery, 164 Mont. 353, 522 P.2d 1377 and c a s e s c i t e d t h e r e i n . Therefore, no i n t e r p r e t a t i o n of t h e new s t a t u t e i s required. F u r t h e r , t h e standard announced i n t h e Montana c a s e s c i t e d above, and most r e c e n t l y i n G i l b e r t i s : "This Court a l s o recognizes t h e s u p e r i o r p o s i t i o n of t h e t r i a l judge i n such m a t t e r s and w i l l n o t disturb the t r i a l c o u r t ' s findings unless there i s a mistake of law o r a f i n d i n g of f a c t n o t supported by c r e d i b l e evidence t h a t would amount t o a c l e a r abuse of d i s c r e t i o n . " Here, w e do n o t f i n d abuse of d i s c r e t i o n o r mistake of law i n t h e record a s it s t a n d s , however, we do n o t have a v a i l a b l e t o us t h e e n t i r e record. Both p a r t i e s agree important d i s c u s s i o n s were had by t h e t r i a l judge i n chambers with t h e p a r e n t s t o g e t h e r and with counsel and then with t h e c h i l d r e n , w i t h counsel p r e s e n t . There were no o b j e c t i o n s placed i n t h e record before us t o t h e l a c k of a record of t h e s e proceedings. Section 48-334(1), R.C.M. W f i n d s u b s t a n t i a l evidence i n t h e record t o support t h e e i n c r e a s e i n c h i l d support i n t h e amount of $50 p e r month. The mother's testimony t h a t h e r c o s t s had increased $75 p e r month s i n c e t h e f a t h e r took f u l l custody of Suzanne was n o t r e f u t e d . The f a c t she has no funds except for Credit Union savings which must apply to expenses during the two months she receives no salary was not questioned. The lack of ability to pay attorney fees is not questioned. Robert complains that Muriel's financial picture was not sufficiently explored yet we find no issue presented that this opportunity was denied to counsel. This Court is mindful of its holding on attorney fees in First Security Bank of Bozeman v. Tholkes, Mont . , 547 P.2d 1328, 33 St. Rep. 341. Yet no useful purpose will be sewed to require a hearing on reasonableness when only a nominal fee of $250 was ordered paid for the contested custody proceehings. The judgment of the district court is ,affirmed. We concur: L. Justices. Mr. Justice Daniel J. Shea dissenting in part and concurring in part: I concur in the result reached as to visitation and child support but not in all that is stated on these matters. However, I dissent to this Court allowing an attorney's fee of $250 as entered by the trial court, without proof of the value of the attorney's fee; I do not question that the fee set by the trial court was a reasonable one, but if we are going to follow the recent case of First Security Bank of Bozeman v. Tholkes, Mont . , 547 P.2d 1328, 33 St.Rep. 341 (decided March 30, 1976), then the district court should take evidence on the value of the attorney's fee before determining the amount. This would be a relatively simple procedure. A fee that is considered nominal to one party to a lawsuit could well be considered astronomical to the opposing party. That is precisely why there should be a hearing.

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