                                                                                            February 3 2015


                                          DA 14-0418
                                                                                           Case Number: DA 14-0418

                  IN THE SUPREME COURT OF THE STATE OF MONTANA

                                          2015 MT 29



CRISSY WEIBERT, n/k/a TIEMAN,

              Plaintiff and Appellee,

         v.

JIM WEIBERT,

              Respondent and Appellant.



APPEAL FROM:            District Court of the Eleventh Judicial District,
                        In and For the County of Flathead, Cause No. DR-10-064 (C)
                        Honorable Heidi J. Ulbricht, Presiding Judge


COUNSEL OF RECORD:

                For Appellant:

                        Katherine P. Maxwell, Maxwell Law, PLLC, Kalispell, Montana

                For Appellee:

                        Valori E. Vidulich, Kaufman Vidal Hileman Ellingson, PC,
                        Kalispell, Montana



                                                    Submitted on Briefs: January 7, 2015
                                                               Decided: February 3, 2015


Filed:

                        __________________________________________
                                          Clerk
Chief Justice Mike McGrath delivered the Opinion of the Court.


¶1     Appellant Jim Weibert (Jim) appeals from an order of the Eleventh Judicial

District, Flathead County, awarding Crissy Tieman (Crissy) custody of their daughter and

attorney’s fees.

¶2     The sole issue on appeal is whether the District Court erred when it ordered Jim to

pay Crissy’s attorney’s fees.

                   PROCEDURAL AND FACTUAL BACKGROUND

¶3     Jim and Crissy divorced on February 25, 2012. They have one minor child, B.W.,

who is autistic. Initially, the parties agreed that Crissy would be the primary residential

parent and B.W. would visit Jim on an alternating, two-week basis. In October 2010,

Crissy notified Jim of her intention to move to Bellingham, Washington. The parties

participated in two mediation sessions, with two different mediators, during this time. In

July 2011, Doctor Jennifer Simon-Thomas evaluated B.W. and made several written

recommendations, including increases in speech and language therapy.

¶4     On August 16, 2011, the District Court held a hearing on the issue of Crissy’s

relocation to Washington. The Court concluded that Crissy could move and that it was in

B.W.’s best interest to continue living with Crissy. Crissy relocated to Washington and

has remained there since. The parties then entered into a stipulation setting forth a new

visitation schedule, whereby Jim would travel to Washington once a month and Crissy

would bring B.W. to Montana once a month. The parties later informally changed this




                                            2
plan, as the travel put strain on B.W. The stipulation also required Crissy to follow

Dr. Simon-Thomas’ recommendations.

¶5     On September 26, 2012, Jim filed a motion for modification of the parenting plan

requesting that the District Court grant him primary residential custody of B.W. Jim

claimed that Crissy had failed to follow the recommendations of Dr. Simon-Thomas. In

response, Crissy filed a brief in opposition to Jim’s motion, requesting that the court

implement her proposed amended parenting plan formalizing the parties’ informal

visitation plan and that Jim pay her attorney’s fees. Included in the proposed parenting

plan was a provision to transfer jurisdiction to Washington State.

¶6     On April 26, 2013, the District Court held a contested hearing on Jim’s motion.

At the hearing, Jim partially rescinded his request to be the primary custodial parent on

the condition that B.W. receive additional speech therapy. Due to timing issues at the

District Court, a second day of hearing was scheduled. On the second day, Jim’s lawyer

clarified that Jim no longer sought the change in residential custody, but still requested

the increase in out-of-school speech therapy. After it became clear that Jim had not

conferred with Crissy about his proposal, the judge suggested the parties recess to discuss

the issues. The parties were able to reach an agreement on a number of items, but

remained divided on four issues—jurisdiction, canceled visitation, additional speech

therapy, and attorney’s fees. The District Court ruled that the jurisdiction issue was not

ripe, that Crissy must arrange make-up visits, and denied the request for additional

speech therapy. Additionally, the District Court ordered Jim to pay Crissy’s attorney’s

fees incurred in defending against his motion to amend the parenting plan.

                                             3
¶7     On May 29, 2014, the District Court conducted a hearing on the reasonableness of

the fees and ordered Jim to pay $10,359. At the hearing, Crissy presented testimony from

family-law attorney Mary Obermiller, who testified that the fees were reasonable given

the complexity of the case and the seriousness of the matter. The District Court stated its

basis for the award, noting that “after the hearing it became clear to me that the

evaluation had been done by the school, Ms. Impero [Crissy] was abiding by that, and it

was in the best interest everything that was being done.”         Additionally, the judge

indicated that she awarded the fees because Jim did not prevail on his motion. Jim

appeals.

                              STANDARD OF REVIEW

¶8     We review a district court’s award of attorney’s fees in a dissolution action for

abuse of discretion. In re Marriage of Dennison, 2006 MT 56, ¶ 23, 331 Mont. 315, 132

P.3d 535. “A district court has abused its discretion if substantial evidence does not

support its award of attorney’s fees.” Marriage of Dennison, ¶ 23.

                                     DISCUSSION

¶9     Issue: Whether the District Court erred when it ordered Jim to pay Crissy’s
       attorney’s fees.

¶10    District courts have the discretion to award attorney’s fees. In re Marriage of

Brownell, 263 Mont. 78, 85, 865 P.2d 307, 311 (1993). Pursuant to § 40-4-110, MCA, a

district court “may order a party to pay a reasonable amount for the costs to the other

party of maintaining or defending any proceeding under chapters 1 and 4.” An award of

attorney’s fees under § 40-4-110 must be reasonable, based on necessity, and rooted in


                                            4
competent evidence. In re Marriage of Barnard, 241 Mont. 147, 154, 785 P.2d 1387,

1391 (1990). This Court will not disturb an award of fees if it is supported by substantial

evidence. In re Marriage of Barnard, 241 Mont. at 154, 785 P.2d at 1392 (citations

omitted).

¶11    Jim argues that § 40-4-110 does not apply to this case because the statute is

directed at marital financial resources. Additionally, he argues that the District Court did

not make any specific findings as to the statute, nor did it consider the parties’ financial

resources. Contrary to Jim’s arguments, § 40-4-110 does apply to this case. The statue

permits a district court to award attorney’s fees incurred defending or maintaining actions

under various chapters of Title 40, MCA, including Chapter 4 “Termination of Marriage,

Child Custody, Support.” Moreover, the Commissioners’ Notes specifically note that the

authority to award fees and costs extends to “different stages of the proceedings” and the

statute expressly allows “sums for legal and professional services rendered . . . after entry

of judgment.” Section 40-4-110, MCA (emphasis added).		This action was brought under

Chapter 4 of Title 40, MCA, as Jim initially moved the District Court to alter the

custodial arrangement, and § 40-4-110 applies.

¶12    Jim also argues that both parties prevailed on different issues and thus attorney’s

fees were inappropriate. Jim asserts that he abandoned his request to serve as the primary

custodian after he decided B.W. would do best with Crissy, and that the sole issue was

whether B.W. should receive additional speech therapy sessions. He maintains that

although the District Court denied his request for additional speech therapy, Crissy lost

on the issue of jurisdiction and makeup visitation. He cites In re Marriage of Winters,

                                             5
2004 MT 82, 320 Mont. 459, 87 P.3d 1005 and In re Marriage of Pfennigs, 1999 MT

250, 296 Mont. 242, 989 P.2d 327, for the premise that attorney’s fees are not appropriate

when both parties prevail. Winters and Pfennigs are distinguishable from the facts in this

case. The district courts in those cases relied on the parties’ dissolution agreements,

which provided for fees to the prevailing party. In Winters, we affirmed the district

court’s decision to deny fees, and cited Pfennigs for the rule that “a contractual provision

awarding attorney fees to the prevailing party in a divorce action was not effective when

each party prevailed on different issues.” Winters, ¶ 59 (citing Pfennigs, ¶ 42). Here, the

District Court did not base its award on the parties’ contract and thus Winters and

Pfennigs are factually distinguishable from the case at bar.

¶13    It is also important to note that § 40-4-110 does not require a party to prevail to

receive attorney’s fees. Under § 40-4-110, “attorney fees are based on the respective

financial resources of the parties and not based on which party prevailed.”           In re

Marriage of Brownell, 263 Mont. at 85, 865 P.2d at 311. Instead, the district court judge

examines what is reasonable in light of each party’s circumstances. Awarding Crissy

attorney’s fees was not unreasonable when Jim changed his position on his motion after

eight months and caused the parties to expend considerable expenses to resolve an issue

that may have been resolved through direct discussion or mediation.

¶14    Jim also argues that the District Court did not state a basis for the award.

Although the judge did not make a specific reference to § 40-4-110, she did state the

grounds on which she awarded the fees. On June 10, 2013, when ruling on the issue of

attorney’s fees, the judge stated that the “hearing has changed substantially from what -

                                             6
what the Court was presented” and the “motion could have been prevented if the parties

had talked to one another prior to getting the Court involved.” Additionally, at the

hearing on reasonableness of the attorney’s fees, the judge found that Jim presented no

medical or professional basis for his request and B.W. was receiving proper therapy.

¶15   Substantial evidence supports the District Court’s order. First, as the District

Court noted, the hearing could have been avoided had the parties discussed Jim’s

concerns. Nothing prevented Jim from speaking with Crissy directly; indeed the parties

had utilized mediation multiple times in the past. However, the parties did not discuss

Jim’s concern until the hearing and only after the judge suggested the parties discuss the

speech therapy off the record.

¶16   Second, evidence at the hearing established that B.W. was receiving appropriate

speech therapy services. Jim was unable to substantiate his claims that Crissy failed to

follow the medical recommendations for B.W.             For example, he testified that

Dr. Simon-Thomas recommended speech therapy two or three times weekly, but then

was unable to corroborate this statement with the doctor’s report, which simply

recommended “increase in speech and language therapy . . . . School-based service

should continue, as well as outpatient adjunct therapy.”               Additionally, on

cross-examination, Jim admitted to lying in his affidavit when he stated that Crissy had

not placed B.W. in any speech therapy programs.         At the hearing, he conceded to

knowing that his daughter actually went to speech therapy.

¶17   Third, Crissy prevailed in establishing that B.W. received adequate speech therapy

services. Although insurance and waiting lists initially prevented B.W. from receiving

                                            7
additional speech therapy services, she received in-school therapy weekly from the

outset. At the time of the hearing, B.W. received one hour of out-of-school therapy, in

addition to the school-based services and equine therapy, and was registered to

participate in a summer program for autistic children. Jim testified that he was happy

with B.W.’s school and pleased with her participation in the equine and summer

programs.

¶18   Finally, Jim’s decision to change his mind at the last minute resulted in

unnecessary legal costs to Crissy that may have been avoidable. The District Court heard

testimony from Crissy that she had to sell a car, take out a loan, and max out her credit

cards to hire an attorney to defend against Jim’s motion. Under these facts, the District

Court had discretion to award attorney’s fees.

¶19   Crissy has requested this Court to award attorney’s fees and costs on appeal. We

decline to award Crissy fees on appeal.

¶20   Affirmed.


                                                 /S/ MIKE McGRATH

We Concur:

/S/ PATRICIA COTTER
/S/ MICHAEL E WHEAT
/S/ BETH BAKER
/S/ JIM RICE




                                            8
