                             No.    93-441

           IN THE SUPREME COURT OF THE STATE OF MONTANA
                                   1994



IN RE THE MARRIAGE OF




     and
ROBERT LEO WILSON,
           Respondent and Appellant.



APPEAL FROM:    District Court of the Fifteenth Judicial District,
                In and for the County of Roosevelt,
                The Honorable M. James Sorte, Judge presiding.


COUNSEL OF RECORD:
           For Appellant:
                David L. Irving, Attorney at Law,
                Glasgow, Montana
           For Respondent:
                Carol C. Johns, Attorney at Law,
                Wolf Point, Montana


                                    submitted on Briefs:   May 5, 1994
                                                Decided: June 9, 1994
Filed:
Justice Terry N. Trieweiler delivered the opinion of the Court.
     Robert Leo Wilson appeals the order of the District Court for
the Fifteenth Judicial District in Roosevelt County awarding
attorney fees and costs to his former wife, Lana Kay Wilson.    We
affirm the District Court.
     The parties present three issues for review:
     1.    Did the District Court abuse its discretion when it
awarded Lana attorney fees and costs?
     2.    Did the District Court abuse its discretion when it
allowed Lana to testify and present evidence at a hearing noticed
for oral argument on the issue of payment of attorney fees?
     3.    Should this Court order damages to Lana based on a
finding that the appeal was taken without substantial or reasonable
grounds?
     The District Court issued its decree dissolving Lana and
Robert's marriage on May 5, 1981. In 1990, Lana moved the District
Court to increase Robert's child support obligation for their minor
child. Robert filed a counterclaim in which he requested specified
visitation and the tax exemption attributable to the child.    Lana
did not file an answer to Robert's counterclaim and the District
Court entered a default judgment against her.   The order increased
Robert's child support obligation, awarded him visitation rights,
and allowed him to claim his daughter as a dependent. The District
Court denied Lana's motion to have the default entry set aside.
She appealed to this Court and we affirmed the award of child
support, reversed the District Court's failure to set aside the
default, and remanded for a determination of the issues in the
counterclaim and to recalculate the amount of child support owed.
See InreManiageofFronk& W i h n (1991), 2 5 0 Mont. 291, 819 P.2d 1275.

     On remand from this Court, and after an evidentiary hearing on
August 20, 1992, the District Court issued a modified decree on
June 21, 1993, denying Robert's requests for the tax exemption and
for unsupervised visitation.    The court awarded Lana the right to
claim the child as her dependent and ordered Robert to pay all
costs associated with psychological evaluations and therapy.       The
order was silent regarding attorney fees.      The parties submitted
briefs and scheduled a hearing for June 16, 1993, to present oral
argument on that issue.      On July 15, 1993, the District Court
awarded attorney fees and costs to Lana in the total amount of
$18,512.67.

                               ISSUE 1

     Did the District Court abuse its discretion when it awarded
Lana attorney fees and costs?
     The District Court ordered Robert to pay Lana's attorney fees
and costs pursuant to H 40-4-110, MCA, which allows the court to
order a party to pay a reasonable amount of the other party's
attorney fees and costs after the court considers the financial
resources of both parties. An award of fees under this statute is
within a district court's discretion and is subject to an abuse of
discretion standard of review, In re Maniage of Bumk (1993), 258 Mont.

265, 272, 852 P.2d 616, 620.       We will not disturb a district
court's findings on appeal if there is substantial evidence to
support those findings. In re Mam'age of Zander (Mont. 1993) 864 P.2d

1225, 1229, 50 St. Rep. 1522, 1524.
      The Commission Comment to 5 40-4-110, MCA, states that the
purpose of the section is to authorize payment of a reasonable fee
"if the court, after considering the financial resources available
to both parties, determines the order to be necessarv.rr (Emphasis
added. )    Thus, many    of our recent cases assert that "the
petitioning party must make a showing of necessity.         See, eg., In re

Mam'uge o Laster
         f         (l982), 197 Mont. 470, 479, 643 P.2d 597, 602.

Necessity, of course, is shown in a variety of ways.            We have
affirmed awards of attorney fees based on a lack of sufficient
funds to pay fees, InreMam'ugeofLoegering (1984), 212 Mont. 499, 689

P.2d 260, or a significant disparity between the partiesr salaries,
1 2 re Mamkge of Skinner (1989), 240 Mont. 299, 783 P.2d 1350.
 1                                                                  When

neither party is better able to pay fees than the other, it is
proper to hold each responsible for his or her own fees.             In re

Mam'age of Hall (1987), 228 Mont. 36, 740 P.2d 684.   "Necessity" does

not exclusively refer to financial necessity.         We have affirmed
awards where a substantial amount of the fees were attributable to
one party Is lack of cooperation and misconduct.         In re Marriage of

Syljuberget (1988), 234 Mont. 178, 763 P.2d 323.       Because of the

diverse facts and circumstances in each case, we have determined
that the district court's discretion, based on its discernment of
the case as a whole, should control absent an abuse of discretion.
ZnreMam'ageofBaer (1982), 199 Mont. 21, 647 P.2d 835.

     The District Court concluded that:
          1.   [Lana] was unable to pay the fees and costs
     incurred by her in this proceeding.
          2.   The disparity in the parties1 income and
     resources supports an award of fees and costs to [Lana].
          3.   The fees and costs incurred by [Lana] in the
     amount of $18,512.67 are reasonable considering the
     complexity and duration of the litigation.
          4.   The prolonged litigation was necessitated by
     [Robert's] counterclaims and by the nature of his past
     actions.
          5.   The necessity of the fees and         costs   is
     justified by [Lana's] success in this case.
     From our review of the record, we conclude that the District
Court had   substantial evidence to support its findings and
conclusion that Lana's ability to pay and the disparity in the
parties1 incomes and resources rendered an award of attorney fees
to Lana 'necessary. I
                    '
     The preferred method to determine the reasonableness of an
award of attorney fees is by nmeans of a hearing allowing for oral
testimony, the introduction of exhibits, and the opportunity to
cross-examine."   Laster 643 P.2d at 602.   Although the hearing in

this case was noticed as one for oral argument, when the District
Court allowed Lana to give testimony, and Robert's           counsel
consented to proceed with the hearing, it became an evidentiary
hearing. The only evidence about the 'lreasonablenessll attorney
                                                     of
fees and costs before the court was the total amount requested.
    MISS JOHNS:    The total number of attorney's fees and
     costs incurred in this case by my client is $16,007.67.
     That's at the hourly rate of $60.00 an hour, Your Honor.
     THE COURT:       $16,007.00.
     MISS JOHTJS:  Yes, and sixty-seven cents.          There was a
     total of 271 hours.
     Prior to the hearing, Lana submitted an affidavit stating that
she owed $16,007.67 in attorney fees and costs; that she spent
$1,505 to travel from Utah to appear at two hearings; and that she
had been required to hire a psychologist to testify and that his
fee was $1,000; for a total of $18,512.67--the amount awarded by
the ~istrictCourt.
     The proper time for Robert to argue that the attorney fees
were unreasonable was at the hearing.            Although he objected to
Lana's testimony based on "unfair surprise,*I he chose to proceed
even when given the opportunity to continue the hearing and present
his own witnesses. After that point, Robert raised no objection to
the foundational basis for Lana's attorney fee evidence.         Neither
did he make any effort to refute, contradict, or impeach the
evidence of the amount of attorney fees and costs requested by
Lana,        During     cross-examination   he     merely   elicited   an
acknowledgement from Lana that $16,007.67 was the total amount of
attorney fees she had incurred as of May 31, 1993.
     We conclude that under these circumstances, Robert waived any
objection to the reasonableness of the fees being claimed or the
manner in which they were proven, and conclude that the District
Court did not abuse its discretion by its award of attorney fees
and costs.
                                    6
                                ISSUE 2

     Did the District Court abuse its discretion when it allowed
Lana to testify and present evidence at a hearing noticed for oral
argument on the issue of payment of attorney fees?
     Robert argues that we should apply the rule in Bink v FirstBank
                                                         .

West, GreatFalls, inc. (1991), 246 Mont. 414, 804 P.2d 384, where we held

that it is error for a district court to make an award without an
evidentiary hearing and without the appropriate motion and notice
required by Rule 5(a), M.R.Civ.P.          Bink,   804   P.2d at 385.   As

previously noted, the hearing became an evidentiary hearing when
Robert gave his consent to proceed.        The District Court mitigated
any possible prejudice to Robert from lack of notice by offering to
continue the matter.
     We, therefore, find that the District Court did not abuse its
discretion when it allowed Lana to take the witness stand and
testify about her notice of job termination and future job
prospects.
                                 ISSUE 3
     Should this Court order damages to Lana based on a finding
that the appeal was taken without substantial or reasonable
grounds?
     Lana requests that we award fees and costs incurred by her on
appeal pursuant to Rule 32, M.R.App.P.         Requesting damages under
this rule is not a matter of course:        "[Wle will find a frivolous
appeal in only the most limited circumstances.I* In re Marriage of Bier v.
Slzerrard   (L981), 191 Mont.   215, 223, 6 2 3 P,2d 550, 554.    In this

case, \fe are not satisfied from the presentation of the appeal that
it was taken without        substantial    or   reasonable   grounds,   and
therefore, deny Lana's request for damages.
       We affirm the judgment of the District Court.

       Pursuant to Section I, Paragraph 3 ( c ) , Montana Supreme Court
1988 Internal Operating Rules, this 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 Montana Law Week, State Reporter and West Publishing Company.




We concur:
                                          June 9, 1994

                                  CERTIFICATE OF SERVICE

I hereby c r i y that the following certified order was sent by United States mail, prepaid, to the
          etf
following named:


DAVID L. IRVING
Attorney at Law
110 5th Street South, Suite 110
Drawer B
Glasgow, MT 59230

CAROL JOHNS
Attorney at Law
P.O. Box 995
Wolf Point, MT 59201

                                                     ED SMITH
                                                     CLERK OF THE SUPREME COURT
                                                     STATE OF MONTANA
