                                             No.    84-69

                 I N THE SUPREME COURT OF THE STATE OF MONTANA

                                                    1984




I N RE THE MARRIAGE OF

GZRALD LAWRLNCE GAHR I

                 P e t i t i o n e r and A p p e l l a n t ,

         and

LUCINDA GAHR,

                 R e s p o n d e n t and R e s p o n d e n t .




APPEAL FROM:      D i s t r i c t C o u r t of t h e E l e v e n t h J u d i c i a l D i s t r i c t ,
                  I n and f o r t h e C o u n t y of F l a t h e a d ,
                  T h e H o n o r a b l e R o b e r t M. H o l t e r , J u d g e p r e s i d i n g .


COUNSEL OF RECORD:

          For Appellant:

                  Hash, Jellison, O'Brien & B a r t l e t t ,                    Kalispell,
                  Montana


          F o r Respondent:

                  R o b e r t B.    Allison,        Kalispell,        Montana




                                             S u b m i t t e d on B r i e f :    July 1 7 , 1984
                                                                 necidedr        O c t o b e r 11, 1 9 8 4



Filed:     j ;      1964



                                                                            --
                                             Clerk
Mr. Justice L. C. Gulbrandson delivered the Opinion of the
Court.
        This is an appeal from an order of the District Court
of the Eleventh Judicial District, Kalispell, Montana, deny-
ing petitioner's motion for disqualification of the trial
judge    for bias,   and   assessing   costs and   attorney   fees.
Respondent did not file a brief with this Court.        We affirm
in part and reverse in part.
        On August 31, 1983, Gerald Lawrence Gahr filed a peti-
tion for dissolution and custody.      He alleged that he and his
wife, Lucinda, a.nd their three children had just returned
from a five-year residence in Canada, and that he feared that
Lucinda was planning to take the children back to Canada.       At
the time Gerald filed his petition and affidavit, Lucinda was
away visiting relatives in Swan Lake, Montana.       Due to this,
petitioner alleged he had custody of the children, and re-
quested an order protecting that status.
        That same day, Judge Keedy, the District Court Judge
assigned to the matter, issued a temporary restraining order,
temporary custody order and order to show cause, directing
that Gerald Gahr should have temporary custody, and for both
to appear for a hearing on September 8, 1983.       The temporary
order included a provision, as provided for by the local
district court rules, that the petition for dissol-ution could
not be dismissed without permission of the court and also
directed the Flathead County Family Court Services to prepa.re
a report on custody, support, and other matters.
        The next day, September 1, Lucind.a Gahr filed a special
appearance motion contesting the court's jurisdiction, and
also filed affidavits alleging that she, Gerald and the three
children, had come to Montana on August 9, 1983, to visit
relatives in Flathead County, and had planned to return to
Canada at the end of the month.      She requested custody of the
children.
      At the time the action was initiated, Lucinda was 31
years old, and Gerald was 60 years old.           He was in poor
health.     Gerald, Lucinda, and the children are all United
States citizens.
      At a meeting with counsel in chambers         prior to the
September 8 hearing, Judge Keedy indicated that he was con-
cerned about the question of jurisdiction.         After hearing
both sides, he decided that he did not have jurisdiction.       He
then dismissed the portion of the petition pertaining to
custody, and ordered Gerald Gahr to deliver the children to
Lucinda so she could take them back to Canada.      Neither party
was given the opportunity to present any evidence of the
merits of temporary custody.        That same day, Gerald Gahr
filed a notice of dismissal without obtaining the permission
of the court.
      On September 9, Judge Keedy entered findings and con-
clusions, and    an    order   denying Gerald   Gahr's notice   of
dismissal, and pursuant to the interim report filed by the
Family Court Services, directed him to deliver the children
to their mother by 4 : 3 0 p.m. September 15.
      On September 12, Gerald Gahr filed a motion to substi-
tution of judge.      It was denied the next day as not timely.
Then, on September 15, just prior to the time delivery of the
children had been ordered to take place, Gerald Gahr filed,
in quick succession, a motion to amend and a motion to stay.
Judge Keedy indicated that he would deny both.          Finally,
just minutes before the children were to be delivered to
Lucinda Gahr, Gerald filed an affidavit of disqualification
for bias.   Judge Keedy honored the affidavit to the extent of
taking no further action on the case other than notifying the
Chief Justice of the Supreme Court, for the purpose of call-
ing in a judge to hear the disqualification for bias. None-
theless, the children were, pursuant to the earlier order,
delivered   to Lucinda Gahr, and were            promptly   removed to
Canada.
      Judge Holter heard the disqual.ification proceeding.          He
entered   findings and    conclusions to      the effect that the
affidavit was without merit and intended to delay, and grant-
ed attorneys fees of $500 to Lucinda Gahr, and damages of
$500 to Flathead County.
     Appellant   presents       the   following   issues on    appeal:
      (1) Under the rule on djsqualification, is the affiant
required to present evidence of actual prejudice or bias on
the part of the judge?
      (2) Was the affidavit in this case sufficient?

      (3) If   evidence    is    required   in    a   disqualification
proceeding, is it reversible error for the hearing judge to
make findings on material facts where there is no evidence to
support the findings made?
      (4) May the judge hearing a disqualification proceeding
award a specific amount of attorney's fees, or attorney's
fees at all, to a party or award damages in a specific amount
to a non-party without any supporting evidence?
     This Court, by order of June 29, 1981, superseded the
prior Montana rule on the disqualification of judges.              The
new order was adopted to remedy the confusion caused by the
prior rules.   See Supreme Court Order of December 29, 1976,
section 3-1-801, I I A (1979), and State ex re1 Amsterdam v.
                  'C
District Court (1973), 163 Mont 182, 516 P.2d 378; State ex
re1 Ross v. District Court (1967), 150 Mont. 233, 433 P.2d
778; State ex re1 Grogan v. District Court (1911), 44 Mont.
72, 119 P. 174    ;   State ex re1 Carleton v. District Court
(1905), 33 Mont. 138, 82 P. 789.
        The present scheme,    as set forth in section 3-1-802,
MCA (1983), is simple: (1)     No judge who is a party, related
to a party, or who has been an attorney or counsel in the
action, may preside over it.     (2) In District Court proceed-
ings, each party in a civil case has two, and the state and
the defendant in a criminal case each have one, peremptory
challenge(s).   The peremptory challenge is automatic if it is
made within 10 days of when a judge is assigned to a case.
The challenged judge then has no further power to act in the
action other than to call in another judge. (3) In all judi-
cial proceedings, a judge may be disqualified for actual bias
on the filing of an affidavit supporting that allegation.
Upon receipt of such an affidavit, the presiding judge may do
no more than to refer the matter to the Chief Justice, who,
if the affidavit warrants an inquiry, will appoint another
judge to hear the matter.     At the hearing the judge must hear
evidence supporting the allegation of bias.     The disqualifi-
cation for bias provision is not meant to be an additional
peremptory challenge.     It only applies when the moving party
meets its burden of raising a strong presumption of actual
bias.    46 Am.Jur.2d Judges, S219.
        Appellant, in his first specification of error, points
out the general rule under the former substitution provision:
that proof of facts showing actual bias and prejudice is not
required or permitted, citing Amsterdam, Ross, Grogan, and
Carleton.     These cases no longer apply under the present
version of section 3-1-802, MCA.
      Appellant next contends that the affidavit he filed was
sufficient to support the disqualification of Judge Keedy.
His counsel stated at the disqualification hearing that "[wle
had the feeling that the affidavit would have to stand by
itself, and we don't have any further evidence to present. "
Under the present rule, an affidavit alone cannot support a
disqualification for bias.    Again, this is different from the
old rule.     The purpose of the affidavit under the present
scheme is to (1) temporarily relieve the sitting judge of any
further jurisdiction over the matter; and (2) put the Chief
Justice on inquiry notice that a sitting judge may be biased
in a particular action.        If the Chief Justice feels the
affidavit warrants inquiry, he will appoint another judge to
hear evidence and look into the matter further.
     Appellant next asserts that, in any event, Judge Holter
based his ruling on evidence that was not presented in the
affidavit or at the hearing.     He particularly objects to the
judge's finding that: "[alpparently Judge Keedy determined
that false representations had been made to him," and that
Judge Keedy "took steps to restore the harm done by a tempo-
rary order gained by misrepresentations to him."
      It is axiomatic that a judge may take notice of all the
evidence properly before him, including that contained in the
record.     Rule 202 (h)(6), Mont.R.Evid.   We do not, however,
reach the issue of whether a judge sitting in a disqualifica-
tion hearing can consider the judicial acts committed by the
challenged judge.    We affirm Judge Holter on the ground that
petitioner failed to meet his burden of raising a strong
presumption of Judge Keedy's bias.      The whole gist of peti-
tioner's argument was that he felt he could not get fair
treatment from Judge Keedy because he had denied several of
petitioner's previous motions.    Beyond a. brief chronology of
the case and this conclusory a.rgument, petitioner failed to
present any evidence to meet his burden.    Judge Holter prop-
erly denied petitioner's request for the disqualification of
Judge Keedy.
      Judge Holter awarded $500 in attorney's fees to Lucinda
Gahr, and $500 to Flathead County for "damages" for the
Family Court Services report.       There is no provision in
section 3-1-802, MCA that allows a judge to award attorney's
fees to a party, or damages to a non-party, in a disqualifi-
cation action.    This Court has consistently held that unless
a statute provides explicitly for an award of attorney's fees
to the prevailing party, a court cannot make such an award.
Winer M.D. v. Jonal Co. (1976), 169 Mont. 247, 545 P.2d 1094;
Stalcup v. Montana Trailer Sales (1966), 146 Mont. 494, 409
P.2d 542.    Judge Holter's order, to the extent that it awa.rds
costs to Lucinda Gahr and damages to Flathead County, is
thereby reversed.
     Affirmed in part, reversed in part.




We concur:                            /



     44L2G.44
      Chief Justice
