Marriage of Pickering Schell , 209 Mont. 159 ( 1984 )

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 their marriage by decree on
August 16, 1979, in the state of Wyoming. That decree
granted custody of the parties' two children to respondent.
On August 7, 1981, the Thirteenth Judicial District court
entered an order modifying said decree pursuant to a
stipulation by the parties. That modification granted
custody to appellant, provided no child support payments and
set forth visitation rights of respondent.
Appellant moved to Denver, Colorado with her new
husband. Apparently problems arose between the parties
regarding visitation and comments made to the children
regarding the lack of virtues of the other party. In any
event, a bitter dispute arose over the visitation rights of
respondent.
On April 25, 1983, appellant filed a petition for
modification of decree. 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 5, 1983. 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 ,
38 S t . R e p . 1100, 1103. Cameron v.
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. While t h e o r d e r is l i m i t e d a s
to the reasoning of 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 to
support its judgment denying attorney fees. In both of
these cases, the court made either a modification or a
judgment in a dissolution proceeding. 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 to present her evidence in favor of her
petition. The record shows a hearing on a related matter
approximately one month prior to the district court's
action. That hearing focused on the enforcement of the
visitation provision of the parties' modified decree. Only
the respondent appeared at that hearing. The court then
entered a judgment enforcing the visitation rights and
ordering in essence that the parties "(1) refrain 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." Such order
addressed the concern of appellant and rendered a
modification of the visitation.
W hereby a f f i r m t h e D i s t r i c t Court.
e
W concur:
e
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Chief J u s t i c e