                                  No. 3 3 - 4 6 4
                IN THE SUPREME COURT OF THE STATE OF NONTANA
                                        1984




IN RE THE blARRIAGE OF
PATRICIA APJN PICKERING, f /k/a
PATRICIA A J SCHELL ,
          IN
                        Petitioner and Appellant,

    and!
JILWLIEROGER SCHELL,

                        Respondent and Respondent.




APPEAL FROM:     District Court of the Thirteenth Judicial District,
                 In and for the County of Yellowstone,
                 The Honorable William J. Speare, Judge presiding.

COUNSEL OF RECORD:

      For Appellant r
                 Larry G. Grubbs, Billings, Montana

      For Respondent:
                 Ralph Herriott, Billings, Montana



                                  Submitted on Briefs:       January 25, 1 9 S 4
                                                    Decided: April 5, 1384


Filed: APR   5 . {984



                                  Clerk
Mr. Justice John Conway Harrison delivered the Opinion of
the Court.

      Appellant     brings    this appeal   from    an    order        dated
August 5, 1983, made by the Thirteenth Judicial District
Court, Yellowstone County, dismissing              a     petition       for
modification of decree and ordering the parties to bear
their own costs.
         The parties dissolved      their marriage       by    decree     on
August    16, 1979, in the state of Wyoming.              That decree
granted custody of the parties' two children to respondent.
On August 7, 1981, the Thirteenth Judicial District court
entered    an order modifying        said decree pursuant              to a
stipulation    by   the parties.       That modification          granted
custody to appellant, provided no child support payments and
set forth visitation rights of respondent.
      Appellant     moved    to   Denver, Colorado with          her    new
husband.      Apparently problems      arose between          the parties
regarding visitation        and   comments made    to    the     children
regarding the lack of virtues of the other party.                  In any
event, a bitter dispute arose over the visitation rights of
respondent.
      On April 25, 1983, appellant filed               a petition        for
modification of decree.           In late June, 1983, respondent
attempted to enforce his visitation rights for the fourth of
July holiday.       The court held a hearing on June 29, 1983,
regarding the enforcement of the visitation rights of
respondent.     Following the hearing the court ordered the
enforcement of respondent's visitation rights and in essence
ordered    the parties      to be   reasonable and       civil    in     the
matter.    The court also set a hearing date for the petition
t o modify t h e d e c r e e .

          The      respondent           countered           appellant's            petition            by

r e q u e s t i n g c u s t o d y o f t h e c h i l d r e n and r e q u e s t e d a n a t t o r n e y

and p s y c h i a t r i c e v a l u a t i o n f o r t h e       children.            Following a

s t i p u l a t i o n continuance f o r the hearing the court entered an

opinion         and     order       dated        August        5,     1983.          Said           order

d i s m i s s e d a l l pending a c t i o n b e f o r e t h e c o u r t and p r o v i d e d

that     the parties            bear     their      own c o s t s .         Appellant           brings

t h i s a p p e a l from t h a t o r d e r .

          A p p e l l a n t c o n t e n d s t h e c o u r t abused i t s d i s c r e t i o n by

dismissing          the petition            f o r modification of                decree.             Also

t h a t t h e court erred i n ordering t h a t t h e p a r t i e s bear t h e i r

own c o s t s w i t h o u t m a k i n g a s p e c i f i c f i n d i n g t o t h a t e f f e c t .

          W e s t a t e d i n O v e r t o n v . O v e r t o n (Mont. 1 9 8 3 ) , 674 P.2d

1 0 8 9 , 40 S t . R e p .   2047 a l o n g s t a n d i n g s t a n d a r d o f r e v i e w :

                   "'We w i l l n o t s u b s t i t u t e o u r j u d g m e n t f o r
                   t h a t of t h e t r i e r of f a c t , b u t r a t h e r
                   w i l l o n l y c o n s i d e r whe t h e r s u b s t a n t i a l
                   credible evidence supports t h e findings
                   and c o n c l u s i o n s .    These f i n d i n g s w i l l n o t
                   be o v e r t u r n e d by t h i s C o u r t u n l e s s t h e r e
                   is a c l e a r p r e p o n d e r a n c e o f t h e e v i d e n c e
                   a g a i n s t them.        W e w i l l view t h e evidence
                   in a          l i g h t most        favorable t o              the
                   prevailing             party,         recognizing            that
                   s u b s t a n t i a l e v i d e n c e may be w e a k o r
                   conflicting with other evidence, y e t
                   still support the findings.                       N i c o l a i v.
                   Nico1a.i (Mont. 1 9 8 1 ) , 6 3 1 P.2d 3 0 0 , 3 0 3 ,
                   38 S t . R e p .       1100, 1103.              Cameron v.
                   Cameron ( 1 9 7 8 ) , 1 7 9 Mont. 2 1 9 , 587 P.2d
                   939. "'

          In     the     instant         case      the      court       set      forth         in     its

o p i n i o n and o r d e r t h e f a c t s and c i r c u m s t a n c e s t h a t l e d u p t o

t h e d i s m i s s a l of t h e action.             While t h e o r d e r is l i m i t e d a s

to    the      reasoning       of     the court,          we find the court did not

a b u s e i t s d i s c r e t i o n by d e n y i n g a p p e l l a n t ' s p e t i t i o n .

          Appellant            argues         that       the        court      erred           by     not
explaining why it denied attorney fees.                      Appellant cites
Kronovich v. Kronovich (1978), 179 Mont. 335, 588 P.2d 510.
In both of these cases, this Court stated that the district
court     erred    by    not making      a    finding and        conclusion      to
support its judgment denying attorney fees.                        In both of
these cases, the court made either                   a modification         or    a
judgment in a dissolution proceeding.                  In the instant case
the court merely dismissed the petition and motions made by
both appellant and respondent.                  Because all matters were
dismissed it appears self evident that the parties should
bear their own costs.         We do express some displeasure in the
trial court's insufficient findings in this area but fail to
find this as reversible error.
        Appellant objects to the court's failure to provide
her   a hearing         to present her         evidence    in favor of her
petition.        The record shows a hearing on a related matter
approximately one month prior                  to the district court's
action.         That hearing focused on the enforcement of the
visitation provision of the parties' modified decree.                       Only
the respondent appeared at that hearing.                     The court then
entered     a     judgment enforcing          the   visitation     rights     and
ordering    in essence       that    the parties          "(1)   refrain    from
making derogatory remarks about each other to the children;
(2) that arrangements relative to the transfer of physical
custody of the children be accomplished by the parties and
not the children; and (3) cease forcing the children to make
decisions relative to their physical custody."                      Such order
addressed         the   concern     of       appellant     and    rendered       a
modification of the visitation.
        W hereby a f f i r m t h e D i s t r i c t Court.
         e




W concur:
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