MARRIAGE OF PICKERING SCHELL
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No. 3 3 - 4 6 4 IN THE SUPREME COURT OF THE STATE OF NONTANA 1984 IN RE THE blARRIAGE OF PATRICIA APJN PICKERING, f /k/a PATRICIA A J SCHELL , IN Petitioner and Appellant, and! JILWLIEROGER SCHELL, Respondent and Respondent. APPEAL FROM: District Court of the Thirteenth Judicial District, In and for the County of Yellowstone, The Honorable William J. Speare, Judge presiding. COUNSEL OF RECORD: For Appellant r Larry G. Grubbs, Billings, Montana For Respondent: Ralph Herriott, Billings, Montana Submitted on Briefs: January 25, 1 9 S 4 Decided: April 5, 1384 Filed: APR 5 . {984 Clerk Mr. Justice John Conway Harrison delivered the Opinion of the Court. Appellant brings this appeal from an order dated August 5, 1983, made by the Thirteenth Judicial District Court, Yellowstone County, dismissing a petition for modification of decree and ordering the parties to bear their own costs. The parties dissolved August their marriage decree by 16, 1979, in the state of Wyoming. on That decree granted custody of the parties' two children to respondent. On August 7, 1981, the Thirteenth Judicial District court entered an order modifying stipulation by said decree pursuant the parties. That modification to a granted custody to appellant, provided no child support payments and set forth visitation rights of respondent. Appellant husband. moved to Denver, Colorado with Apparently problems regarding visitation and arose between comments made to her new the parties the regarding the lack of virtues of the other party. children In any event, a bitter dispute arose over the visitation rights of respondent. On April 25, 1983, appellant filed modification of decree. a petition for In late June, 1983, respondent attempted to enforce his visitation rights for the fourth of July holiday. The court held a hearing on June 29, 1983, regarding the enforcement of the visitation rights of respondent. Following the hearing the court ordered the enforcement of respondent's visitation rights and in essence ordered the parties to be reasonable and civil in the matter. The court also set a hearing date for the petition t o modify t h e d e c r e e . The respondent countered appellant's petition by r e q u e s t i n g c u s t o d y o f t h e c h i l d r e n and r e q u e s t e d a n a t t o r n e y and p s y c h i a t r i c e v a l u a t i o n f o r t h e children. Following a s t i p u l a t i o n continuance f o r the hearing the court entered an opinion and order dated August 1983. 5, Said order d i s m i s s e d a l l pending a c t i o n b e f o r e t h e c o u r t and p r o v i d e d that the parties bear their own c o s t s . Appellant brings t h i s a p p e a l from t h a t o r d e r . A p p e l l a n t c o n t e n d s t h e c o u r t abused i t s d i s c r e t i o n by dismissing the petition f o r modification of decree. Also t h a t t h e court erred i n ordering t h a t t h e p a r t i e s bear t h e i r own c o s t s w i t h o u t m a k i n g a s p e c i f i c f i n d i n g t o t h a t e f f e c t . W e s t a t e d i n O v e r t o n v . O v e r t o n (Mont. 1 9 8 3 ) , 674 P.2d 1 0 8 9 , 40 S t . R e p . 2047 a l o n g s t a n d i n g s t a n d a r d o f r e v i e w : "'We w i l l n o t s u b s t i t u t e o u r j u d g m e n t f o r t h a t of t h e t r i e r of f a c t , b u t r a t h e r w i l l o n l y c o n s i d e r whe t h e r s u b s t a n t i a l credible evidence supports t h e findings and c o n c l u s i o n s . These f i n d i n g s w i l l n o t be o v e r t u r n e d by t h i s C o u r t u n l e s s t h e r e is a c l e a r p r e p o n d e r a n c e o f t h e e v i d e n c e a g a i n s t them. W e w i l l view t h e evidence in a l i g h t most favorable t o the prevailing party, recognizing that s u b s t a n t i a l e v i d e n c e may be w e a k o r conflicting with other evidence, y e t still support the findings. N i c o l a i v. Nico1a.i (Mont. 1 9 8 1 ) , 6 3 1 P.2d 3 0 0 , 3 0 3 , 1100, 1103. Cameron v. 38 S t . R e p . Cameron ( 1 9 7 8 ) , 1 7 9 Mont. 2 1 9 , 587 P.2d 939. "' In the instant case the court set forth in its o p i n i o n and o r d e r t h e f a c t s and c i r c u m s t a n c e s t h a t l e d u p t o t h e d i s m i s s a l of t h e action. to the reasoning of While t h e o r d e r is l i m i t e d a s the court, we find the court did not a b u s e i t s d i s c r e t i o n by d e n y i n g a p p e l l a n t ' s p e t i t i o n . Appellant argues that the court erred by not explaining why it denied attorney fees. Appellant cites Kronovich v. Kronovich (1978), 179 Mont. 335, 588 P.2d 510. In both of these cases, this Court stated that the district court erred by not making a finding and conclusion support its judgment denying attorney fees. these cases, the court made either In both of a modification judgment in a dissolution proceeding. to or a In the instant case the court merely dismissed the petition and motions made by both appellant and respondent. Because all matters were dismissed it appears self evident that the parties should bear their own costs. We do express some displeasure in the trial court's insufficient findings in this area but fail to find this as reversible error. Appellant objects to the court's failure to provide her a hearing petition. to present her evidence in favor of her The record shows a hearing on a related matter approximately one month prior action. to the district court's That hearing focused on the enforcement of the visitation provision of the parties' modified decree. the respondent appeared at that hearing. entered a ordering judgment enforcing in essence that the The court then visitation the parties Only "(1) rights refrain and from making derogatory remarks about each other to the children; (2) that arrangements relative to the transfer of physical custody of the children be accomplished by the parties and not the children; and (3) cease forcing the children to make decisions relative to their physical custody." addressed the concern of modification of the visitation. appellant and Such order rendered a W hereby a f f i r m t h e D i s t r i c t Court. e W concur: e %&3,iii,&, Chief J u s t i c e
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