Marriage of McCurdy

• Court: Montana Supreme Court
• Decided: September 21, 1995
• Docket: 94-557
• Status: Published

Opinion

No. 94-55-i IN THE SUPREME COURT OF THE STATE OF MONTANA 1995

IN RE THE MARRIAGE OF ROBERT E. McCURDY, Petitioner, Counter- Respondent and Appellant, and CONTANA S. McCURDY, ta &gp;.;& a&F?y OF SUPR&?/jE J&EIR'II sl f/&i cw hlilB!$fp~jh Respondent, Counter- Petitioner and Respondent.

APPEAL FROM: District Court of the Eighth Judicial District, In and for the County of Cascade, The Honorable John M. McCarvel, Judge presiding.

COUNSEL OF RECORD: For Appellant: K. Dale Schwanke, Jardine, Stephenson, Blewett and Weaver, P.C., Great Falls, Montana For Respondent: M. Gene Allison, Law Offices of Joan Cook, Great Falls, Montana

Submitted on Briefs: August 10, 1995

Decided: September 21; 1995 Filed: Chief Justice J. A. Turnage delivered the Opinion of the Court. Pursuant to Section I, Paragraph 3(c), Montana Supreme Court 1995 Internal Operating Rules, the following decision shall not be

cited as precedent and shall be published by its filing as a public

document with the Clerk of the Supreme Court and by a report of its

result to State Reporter Publishing Company and West Publishing

Company.

Robert McCurdy appeals the decision of the Eighth Judicial

District Court, Cascade County, awarding Robert and Contana McCurdy

joint custody of their preschool son and awarding Contana $2500 in

attorney fees. We affirm. We find the following issues dispositive on appeal:

1. Did the District Court err in awarding the McCurdys joint

custody of Collin with Contana being the primary residential

custodian?

2. Did the District Court err in awarding Contana attorney

fees? Robert and Contana were married on August 29, 1992. Their

son, Collin, had been born on January 2, 1992. After two years of

marriage, Contana took Collin and left Robert. Robert petitioned

the District Court for dissolution of their marriage on January 14,

1994. Robert received temporary custody of Collin following their

separation until April 12, 1994, at which time the court ordered

temporary joint custody to Robert and Contana. On July 29, 1994, the District Court heard the respective

parties' arguments concerning their desire to have custody of

2 Collin. Robert sought sole custody of Collin, while Contana sought joint custody but wanted to be Collin's primary residential

custodian in order to maintain eligibility for subsidized housing.

Following trial, the court entered its findings of fact, conclu-

sions of law and order granting the parties joint custody with

Contana being the primary residential custodian. The court also awarded Contana attorney fees. Robert appeals the decision of the

District Court.

Issue 1

Did the District Court err in awarding the McCurdys joint custody of Collin with Contana being the primary residential

Robert argues that the District Court's findings concerning

the "best interest" of Collin are insufficiently comprehensive to

provide a basis for a decision. In Re the Marriage of Nikolaisen

(199X), 257 Mont. 1, 847 P.Zd 287. Robert also argues that the court's findings are clearly erroneous because they are not

supported by substantial credible evidence. In Re the Marriage of

Johnson (1994), 266 Mont. 158, 879 P.2d 689.

This Court has held that a district court need not make

specific findings addressing every "best interest" factor set forth

in § 40-4-212, MCA. In Re the Marriage of Arrotta (1990), 244

Mont. 508, 797 P.2d 940. This Court has also recognized the

statutory presumption found in 5 40-4-224, MCA, that joint custody

is generally in the child's best interest. In Re the Marriage of

Syljuberget (19881, 234 Mont. 178, 763 P.2d 323.

3 After reviewing the record we conclude that the court's

findings of fact are sufficiently comprehensive and are supported

by substantial credible evidence.

Issue 2 Did the District Court err in awarding Contana attorney fees?

Attorney fees in a dissolution action are governed by § 40-4-

110, MCA, which states:

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 . . . We review an award of attorney fees to determine if the court

abused its discretion. In Re the Marriage of Brownell (1993), 263

Mont. 78, 865 P.2d 307.

After reviewing the record, we conclude that the District

Court sufficiently considered the financial resources of the

parties and that both parties were provided with sufficient notice

of the attorney fees issue. We conclude that the District Court

did not abuse its discretion in awarding Contana attorney fees.

AFFIRMED.

Chief Justice

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