                                            No. 01-705

                IN THE SUPREME COURT OF THE STATE OF MONTANA

                                         2002 MT 175


IN RE THE MARRIAGE OF
MARGARET ALVARADO FISHBAUGH,

               Petitioner and Respondent,

         and

JOHN FISHBAUGH,

               Respondent and Appellant.



APPEAL FROM:          District Court of the Fifteenth Judicial District,
                      In and for the County of Sheridan,
                      The Honorable David Cybulski, Judge presiding.


COUNSEL OF RECORD:

               For Appellant:

                      E. June Lord, Attorney at Law, Great Falls, Montana

               For Respondent:

                      Laura Christoffersen; Christoffersen & Knierim, Culbertson, Montana



                                                         Submitted on Briefs: April 11, 2002

                                                                    Decided: August 8, 2002
Filed:


                      __________________________________________
                                        Clerk
Chief Justice Karla M. Gray delivered the Opinion of the Court.


¶1    John Fishbaugh (John) appeals from the judgment entered by the

Fifteenth Judicial District Court, Sheridan County, on its findings

of fact, conclusions of law and decree of dissolution.                 We affirm.

¶2    John raises the following issues:

¶3    1.    Did the District Court err in denying John’s motion to

continue the trial?

¶4    2.    Did the District Court abuse its discretion in awarding

Margaret Alvarado Fishbaugh (Margaret) sole custody of the parties’

daughter?
¶5    3.    Did the District Court abuse its discretion in calculating

child support?

¶6    4.    Did the District Court abuse its discretion in ordering

John to pay Margaret’s attorney fees?

                                      BACKGROUND

¶7    John and Margaret were married on November 16, 1999, and

separated approximately five months later.                 Margaret gave birth to

the parties’ daughter on August 31, 2000.                     In October of 2000,

Margaret petitioned the District Court to dissolve the marriage and

determine     the    custody    and    support     of   the   child.   The   court

subsequently entered an order giving Margaret temporary custody of

the child and requiring John to pay $294 per month in child support

pending a trial on the merits.              Trial was set for June 18, 2001,

continued twice and, on July 2, 2001, eventually scheduled for

August 20, 2001.



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¶8     On August 16, 2001, John’s attorney filed motions to withdraw

as    counsel   and   to   continue   the   trial.     The   continuance      was

requested on the basis that the attorney had a trial scheduled in

federal court on the same date as the trial in this case.                    The

District Court entered a written order denying the motion for a

continuance and stating that John’s attorney could be heard on the

motion to withdraw at the time set for trial.

¶9     The trial was held as scheduled on August 20, 2001.                Neither

John   nor   his   attorney   appeared.      Margaret    testified    and     the

District     Court    subsequently    entered    its    findings     of    fact,

conclusions of law and decree of dissolution granting Margaret sole

custody of the parties’ child and ordering John to pay $294 per

month in child support.         It also ordered him to pay Margaret’s

attorney fees in the amount of $1,000.          The court entered judgment

and John appeals.
                                 DISCUSSION

¶10 1. Did the District Court err in denying John’s motion to
continue the trial?

¶11    The decision to grant or deny a motion for a continuance is

within the sound discretion of a district court and we review that

decision for abuse of discretion.           The moving party must make an

affirmative showing that he or she has suffered prejudice as a

result of the court’s denial of the motion for a continuance.                 In

re Marriage of Pospisil, 2000 MT 132, ¶ 18, 299 Mont. 527, ¶ 18, 1

P.3d 364, ¶ 18.        The timeliness of a motion to continue is a

legitimate factor for the court to consider in determining whether




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to grant such a motion.       In re Marriage of Robbins (1985), 219

Mont. 130, 138, 711 P.2d 1347, 1352.

¶12   The trial in this matter was set for August 20, 2001, and

John’s attorney moved for a continuance on August 16, 2001, just

four days prior to trial.     Margaret objected to the continuance and

the District Court denied the motion in a written order.             At the

trial, the court attempted to telephone John’s attorney and could

not reach her.    The court then again denied the motion to continue,

stating on the record that it considered the motion untimely as it

was unlikely John’s attorney did not have advance notice of the

scheduling   of   her   federal   court   trial.   Moreover,   the    court

observed the attorney had indicated John had not contacted her for

several weeks and, as a result, the attorney “would be here

probably with nothing more than her hat in hand and it wouldn’t

make for much more of a trial and much more benefit to her client,

anyway.”
¶13   John argues that the District Court abused its discretion in

denying his counsel’s motion to continue the trial and that he was

prejudiced thereby because he was unable to present evidence and

cross-examine Margaret at the trial.        The District Court based its

denial of the motion on the fact that it was filed only four days

prior to trial and the court found it unlikely that John and his

attorney were unaware of the attorney’s scheduling conflict prior

to that time.

¶14   John contends his attorney did not know until several days

prior to the trial in this matter that her federal court trial



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actually would go on as scheduled.           His attorney’s motion makes no

reference    to   this    fact,   however,   and   nothing   else   of   record

supports his contention in this regard.            Nor does he dispute the

District Court’s statement that his attorney was aware, and could

have informed the court, of the potential conflict at an earlier

date.    Moreover, regarding the prejudice factor, John presents

nothing more than conclusory statements that he was prejudiced by

the denial of the motion because the District Court relied on a

one-sided view of the facts.         We conclude that John has failed to

establish the District Court abused its discretion in denying his

motion to continue the trial and that he was prejudiced thereby.
¶15   John also argues that the District Court’s denial of his

motion for continuance violated his constitutional right to due

process.    The essential elements of due process are notice and the

opportunity to be heard.          Marriage of Robbins, 219 Mont. at 138,

711 P.2d at 1352.        Due process is accorded where a party is given

sufficient notice of a trial and the trial is held, regardless of

whether the party actually avails himself of the opportunity to be

heard.     Marriage of Robbins, 219 Mont. at 138, 711 P.2d at 1352.

Here, John received notice of the trial nearly two months in

advance and the trial was held as scheduled.            The District Court

having accorded John the requisite notice and opportunity to be

heard to which he was entitled, we conclude his right to due

process was not violated.

¶16   We hold that the District Court did not err in denying John’s

motion to continue the trial.



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¶17 2. Did the District Court abuse its discretion in awarding
Margaret sole custody of the parties’ daughter?

¶18   The District Court granted Margaret sole custody of the

parties’ daughter and gave John the right to reasonable visitation

at the child’s home.      John contends the court should have granted

joint custody of the child and provided him with less restricted

visitation rights.

¶19   We review a district court’s child custody determination to

determine whether the findings of fact on which the determination

is made are clearly erroneous.     In re Marriage of McKenna, 2000 MT

58, ¶ 14, 299 Mont. 13, ¶ 14, 996 P.2d 386, ¶ 14.         If they are not,

we will affirm the court’s decision absent a showing that the court

committed a clear abuse of discretion.         Marriage of McKenna, ¶ 14.

¶20   A district court is required to determine child custody

matters in accordance with the best interests of the child, taking

into consideration a variety of statutory factors including--but

not   limited   to--the    parents’       wishes,   the   interaction   and

interrelationship of the child with the child’s parents, continuity

and stability of care, and whether the child has frequent and

continuing contact with both parents.          Section 40-4-212(1), MCA.

While a court must consider the factors enumerated in § 40-4-

212(1), MCA, it need not make specific findings relating to each.
Marriage of McKenna, ¶ 15.

¶21   Here, the District Court found that Margaret has had custody

of the child since she was born, and John has not contacted, or

attempted to visit, her.     The court further found that, in light of

the lack of contact between John and the child, it is in the


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child’s best interest that Margaret be awarded sole custody subject

only to reasonable visitation by John at the child’s home.                 The

record reflects Margaret’s testimony at trial that, although John

was present at their child’s birth, he has had no contact with her

since that time.    She further testified that she had made several

telephone calls to John to inform him of their child’s well-being,

but John has never initiated contact to find out about or visit

with the child.     Consequently, although Margaret believed John

should have visitation, she thought the visitation should be in her

home until the child has an opportunity to become comfortable

around John.   Margaret’s testimony constitutes substantial credible

evidence supporting the District Court’s findings in this regard.
¶22   John’s   argument   that   the       District   Court’s   findings   are

erroneous is based on his assertions that, had he been able to

appear at trial, he would have testified that the only reason he

had no contact with the child was because Margaret continually

frustrated his attempts to do so, and that her testimony regarding

his lack of efforts to contact the child was untrue.             The problem

with John’s argument is that our review of the District Court’s

findings of fact must be based on the evidence of record and we

cannot consider evidence which is extraneous to the record.                See

Scott v. Scott (1990), 246 Mont. 10, 21, 803 P.2d 620, 627.            Based

on the evidence before us, we conclude the court’s findings of fact

regarding custody of the child are not clearly erroneous.

¶23   Moreover, although the District Court did not cite § 40-4-

212(1), MCA, in its decree, its findings of fact indicate that the



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court did consider the factors set forth in the statute, most

notably    those   pertaining   to   the   wishes    of   the    parents,    the

continuity and stability of the child’s care, and whether the child

has frequent and continuing contact with both parents.                  Based on

the evidence of record, we hold the District Court did not abuse

its discretion in awarding Margaret sole custody of the parties’

daughter.

¶24   3.   Did the District Court abuse its discretion in calculating

child support?
¶25   We review a district court’s child support award to determine

whether the court abused its discretion.            In re Marriage of Bee,

2002 MT 49, ¶ 19, 309 Mont. 34, ¶ 19, 43 P.3d 903, ¶ 19.             Here, the

District Court determined that John should pay $294 per month in

child support based on an imputed income in the amount of $24,835.

 John contends that the court abused its discretion in basing the

child support award on imputed income.

¶26   At the hearing on temporary child custody and support, John’s

attorney    appeared   via   telephone     and   apparently      informed    the

District Court that John’s financial records were unavailable at

that time.     As a result, the court determined temporary child

support by imputing income to John based on his job as a semi-truck

driver.      Relying   on    Margaret’s     testimony     that    she     earned

approximately $10,700 per year and John’s imputed income in the

amount of $24,835, the court calculated John should pay $294 per

month in temporary child support.




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¶27   At the trial on the merits, Margaret testified that, to her

knowledge, there had been no change in either parties’ employment

status   since     the   earlier    hearing   and    that   the    child    support

computations made at that time would still be accurate.                   As stated

above, neither John nor his attorney appeared at the trial to offer

evidence     contradicting         Margaret’s       testimony      or     otherwise

establishing     John’s    financial    status;      nor    did   John     file   any

financial affidavits or tax returns establishing that his income

was other than the amount originally imputed to him by the court.

Consequently, the District Court again calculated John’s child

support obligation as $294 per month based on his imputed income as

a truck driver.
¶28   John argues that the District Court abused its discretion in

using imputed income to determine his child support obligation

because he had furnished Margaret with a financial affidavit and

tax return establishing that his income was approximately $10,000

per   year   and    Margaret    had    failed   to     reveal      his    financial

information to the court at the trial.              As stated above, however,

our review of the District Court’s determination must be based on

the evidence of record before the court.              See Scott,        246 Mont. at

21, 803 P.2d at 627.       There is no evidence of record establishing

that John’s income is other than the amount imputed or that he

provided Margaret with his financial information.                 Consequently, we

hold that the District Court did not abuse its discretion in

calculating child support.




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¶29   4.   Did the District Court abuse its discretion in ordering

John to pay Margaret’s attorney fees?

¶30   At trial, Margaret requested that John pay her attorney fees

incurred as a result of the dissolution proceeding and the court

ordered John to do so in the amount of $1,000.           John argues that no

evidence exists to support either the necessity for, or amount of,

such an award.        He also contends he does not have the financial

resources to pay the fees.        We review a district court’s award of

attorney fees in a dissolution proceeding to determine whether the

court abused its discretion.           Schmieding v. Schmieding, 2000 MT

237, ¶ 22, 301 Mont. 336, ¶ 22, 9 P.3d 52, ¶ 22.
¶31   A district court may order a party to pay the other party’s

reasonable attorney fees incurred in maintaining and defending a

dissolution proceeding after considering the financial resources of

both parties.       Section 40-4-110(1), MCA.    An award of attorney fees

must be necessary, reasonable and based on competent evidence.

Schmieding, ¶ 25.

¶32   At the temporary child support hearing, the District Court

computed child support based on Margaret’s testimony that she

earned approximately $10,000 per year and John’s imputed income as

a semi-truck driver in the amount of $24,835.            Margaret testified

at the trial that she believed there had been no change in either

her   or   John’s    employment   or   income   status   since   the   earlier

hearing.    Additionally, Margaret’s attorney informed the court at

the trial that her normal fee in a dissolution proceeding was $100

per hour and she had worked at least ten hours on this case.               We



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conclude    that    this   testimony   constitutes   substantial   credible

evidence establishing both the necessity for, and reasonable amount

of, an award of attorney fees.         Moreover, in light of the disparity

between Margaret’s annual income and the income imputed to John as

a truck driver, we further conclude that it was reasonable for the

District Court to conclude that John could pay Margaret’s attorney

fees.    As a result, we hold that the District Court did not         abuse

its discretion in ordering John to pay Margaret’s attorney fees.

¶33     Affirmed.

                                                /S/ KARLA M. GRAY


We concur:

/S/   TERRY N. TRIEWEILER
/S/   JAMES C. NELSON
/S/   JIM REGNIER
/S/   JIM RICE




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