                                    NO.      96-039
               IN THE SUPREMECOURT OF THE STATE OF MONTANA
                                          1996


IN RE THE MARRIAGE OF
SHIRLEY A. HERBST,
               Petitioner    and Respondent,
         and
RANDALL L. HERBST,
               Respondent    and Appellant.



APPEAL FROM:          District  Court of the Eighteenth  Judicial District,
                      In and for the County of Gallatin,
                      The Honorable Larry W. Moran, Judge presiding.


COUNSEL OF RECORD:
               For Appellant:
                      Marcelle   C. Quist;       Quist   & Bowen, Bozeman,
                      Montana
               For Respondent:
                      Daniel J. Roth;     Kommers & Roth,        Bozeman,
                      Montana


                                  Submitted       on Briefs:     September   12, 1996
                                                      Decided:   September   19, 1996
Filed:



                                          Cl&k
Justice      Karla          M. Gray delivered               the Opinion            of the Court.

          Pursuant          to Section       I,    Paragraph             3(c),     Montana         Supreme Court
1995 Internal              Operating       Rules,         the following             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.
          Randall         L. Herbst      (Randy) appeals             from the judgment                  entered        by
the      Eighteenth          Judicial       District            Court,         Gallatin      County,           denying
his      motion       for     modification             of       custody          and awarding              costs      and
attorney          fees.       We affirm.
         We address           the following            issues       on appeal:
       1.  Did the District                       Court     abuse its             discretion          in      awarding
witness   costs?
       2.         Did the District                Court     abuse its             discretion          in      awarding
attorney          fees?
      3. Did the District     Court                             abuse its          discretion           in     denying
Randy's motion for modification?
          The marriage           of     Randy and Shirley                      Herbst      was dissolved                in
1989.         The Amended Decree                     provided            for      joint      custody           of     the
parties'          three      minor      sons;       Shirley         was designated                 as the           boys'
primary      physical          custodian,          subject        to visitation              rights          in Randy.
Both Randy and Shirley                   subsequently              remarried.
          In the      summer of 1994,               the parties'                 son Casey,        then        age 14,
lived      with      Randy and his           wife         Celeste        pursuant         to the previously
ordered      visitation.              At the end of the summer, Casey asked to stay
with     Randy and Celeste               on a permanent              basis.          Randy did not return

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Casey to Shirley                  at that          time;      instead,          he filed            a motion          pursuant
to     § 40-4-219(l)              (c)       and     cd),      MCA, to modify                   Casey's         custody          by
changing          primary         physical          custody           to Randy.            Shirley      responded,             and
also      filed        motions              requesting          orders         directing             Randy to              return
Casey to her               custody           and holding            Randy in contempt.
          The District                Court       ordered       Randy to return                    Casey to Shirley's
custody        and set a hearing                    on Shirley's               motion        for     contempt.              Casey
did     not       return         to Shirley's               home; he "ran                  away"      to     the          home of
Leroy      Arneson,              Randy's          neighbor,            who employed                 Casey to              perform
chores        during       the summer months and after                               school.         After      a hearing,
the District               Court        found Randy in contempt                        of its         Amended Decree.
          The court          subsequently                 ordered       that    Shirley's            custody          of Casey
continue,           with     visitation              in Randy, pending                     resolution           of Randy's
motion        to modify           custody.           It     also ordered             a custody         evaluation              and
recommendation                   by     counselor            Suzie       Saltiel,             who previously                   had
interviewed            Casey at Randy's                     behest       regarding            Casey's         reasons          for
wanting         to remain              in     Randy's        custody.            The parties                 later         agreed
that      Zan Hoxsey would perform                             the custody             evaluation             on a shared
cost      basis.
          Both      Randy and Shirley                       testified           at     the     hearing          on Randy's
motion        for modification                   of custody,            as did Randy's               wife      Celeste         and
Leroy         Arneson.                 Ms.       Saltiel          and     Ms.        Hoxsey          also       testified.
Thereafter,                the        District            Court        filed         its       findings              of     fact,
conclusions            of        law        and order          denying         Randy's             motion       to        modify,
setting        forth        a revised             visitation            schedule,            and awarding                 Shirley
costs      and attorney                  fees.        After           a subsequent             hearing,            the      court

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awarded Shirley                 $2,494.29              as reasonable               attorney          fees     and costs.
         Randy appeals.
       1. Did the District                          Court           abuse its            discretion           in awarding
Shirley   certain witness                         costs?
         Randy does not                   dispute            that       the parties              generally         agreed      to
share the costs                associated              with      Ms. Hoxsey's              evaluation          and report.
He contends,               however,             that      the District                  Court      erred      in     awarding
Shirley         $70 witness               costs        for      Ms. Hoxsey to appear                      and testify          at
the hearing            on his motion               to modify.                  He points          out that         Ms. Hoxsey
was subpoenaed by Shirley                          and argues that                      costs     awarded under          § 40-
4-110,       MCA, are               constrained                by § 25-10-201,                   MCA.        According         to
Randy,       § 25-10-201,                MCA, and Goodover v. Lindey's                                Inc.     (1992),        255
Mont.       430,       843 P.2d            765,        limit        expert         witness         fees      awardable         as
costs       to the statutory                    rate      of $10.00              per day.
         We need not                 address           the       merits          of      this      issue.          As stated
above,       the parties                 generally             agreed          to share         the costs       associated
with      Ms.      Hoxsey's              custody         evaluations                  and report.              Ms.     Hoxsey
testified          that        she understood                her involvement                    to include      performing
the     custody           evaluations,                 offering               opinions          and observations              and
providing             testimony            at     the        hearing            on those           matters.           Randy's
counsel         did     not      cross-examine                  her      in      the latter          regard        and Randy
did not testify                 to the contrary                  at either              the hearing          on his motion
to modify           or the subsequent                     hearing              on costs         and attorney          fees.
         Section          40-4-110,             MCA, authorizes                   a court,         in its      discretion,
to     "order       a party          to pay a reasonable                          amount for          the cost         to the
other       party         of    .    .          defending               [al     proceeding"           such as Randy's
motion       to modify.                  Given     the record                  before      us with        regard      to each
                                                                    4
party's          responsibility                  for         one-half           of      Ms.        Hoxsey's                costs,       we
conclude           that         the District            Court           did     not     abuse its                discretion             in
awarding           the $70 in witness                    fees.
       2.          Did the District                Court            abuse its           discretion                   in awarding
attorney           fees?
           Randy does not                contend             that       the amount of                   the attorney                fees
the District               Court ultimately                   awarded in this                  case was unreasonable
or        unsupported.                  Rather,           he        argues           that          the         court         did     not
sufficiently               consider        the financial                      resources            of both            parties,          as
required           by § 40-4-110,              MCA, prior                to exercising                   its     discretion             to
award attorney                   fees    to Shirley              under         that      statute.                We disagree.
            As      part          of     her       response                to        Randy's             motion,              Shirley
specifically               requested         an award of attorney                            fees.         She testified                at
the hearing           on the motion               that         she works regular                        hours        at a grocery
store        from     Monday through                    Friday           and occasionally                        works        weekend
fill-in          shifts.           Shirley        also         testified              that        she did not have the
financial           ability            to obtain         counseling              she had sought.                           According
to    Shirley,             it     was a financial                       hardship            for      her        to     attend        the
hearing          and she was unable                     to continue                  to take            time         off     work and
pay counsel.                She stated           that         she had to borrow                      the money to defend
the       action      and mentioned                that          her husband had been sick                                   and that
there       were related                medical         bills.
           Notwithstanding                 his          knowledge               that          Shirley                was      seeking
attorney           fees,         Randy did             not       cross-examine                    her     in     an effort              to
undermine           her testimony              regarding                her lack         of financial                      resources.
Nor did          he present             testimony             through           himself            or his            wife     Celeste
which       would         indicate        that         his     financial              situation                was precarious.
                                                                    5
The record             does not reflect                     that     he was prevented                 from doing               so by
any action              of      the District                Court.          The testimony                 from         which     the
court         could         obtain      a perspective                about      Randy's         financial              resources
included            his       testimony           that        he worked              construction             and had the
"winters            off,"       that       Celeste         owned her own barbershop                        and that            Randy
and Celeste                 were in the process                     of purchasing               a plot        of land.
         It        is against           this     backdrop            and this          record       that      Randy argues
that     the District                  Court         did     not      consider         the parties'                   respective
financial             resources,               as required               by     5 40-4-110,                MCA, prior              to
awarding            attorney            fees     to        Shirley.           While       the       relevant            evidence
before         the court             with      regard        to either          party's         financial              situation
was      not          overly           substantial,                  and       while         the       District                Court

mischaracterized                     some of that              evidence           in minor          ways,        it     is clear
that      the         court          did       consider            the      evidence          of      record           prior       to
exercising              its     discretion.
         Randy relies                  primarily            on In re Marriage                 of Rager            (1994),        263
Mont.         361,      868 P.2d 625,                 in arguing              that     the    record         in        this     case
contains            insufficient               evidence            of the parties'              financial              resources
to support             an award of attorney                         fees.       His reliance               on Marriase             of
Raqer         is     misplaced.                 In     addressing              whether          the       district             court
abused its              discretion             in awarding               attorney         fees      under        § 40-4-110,
MCA, we observed                     that      the district               court       found        that     the husband's
earning            capacity          exceeded his              wife's         by $5,000;            on that            basis,      we
determined              that         the court             "considered           the     financial            resources            of
the parties"                  before        awarding          attorney          fees      to the wife.                  Marriase
of Raqer,             868 P.2d at 628.                     We did not hold--or                     even suggest--that

                                                                    6
respective              earning           capacity                or any other              specific            financial            data
was a required               item of evidence                        without            which no attorney                    fee award
could       be made.
        On the basis                     of     the        record          before         us,    we conclude                 that       the
District           Court      did             not        abuse      its        discretion          in     awarding               Shirley
attorney           fees.
      3. Did the District     Court                                           abuse its         discretion              in    denying
Randy's motion for modification?
        Randy properly                    premised               his motion             for modification                   of Casey's
primary           physical          custody               on 5 40-4-219,                  MCA.          In     re Marriage                 of
Johnson           (1994),         266 Mont.               158, 879 P.2d 689.                      The law is clear                   that
a district                court      originally                    determines             custody            under         the      "best
interest"           standard;                 however,            the court            can modify            joint         custody         so
as to substantially                           change the child's                        primary         residential               living
arrangements                only         if         it     finds          the     existence          of        the      "change            of
circumstance"                requirement                    of      5 40-4-219(l),                MCA, and one of                       the
subsection              (1) (a) through                     (f)      factors            contained         in     that        statute.
See Marriaqe               of Johnson,                    879 P.2d at 694.
           On appeal,              Randy argues                      that         the     District             Court         erred         in
denying           his     motion.               The sole            bases he advances                     for        his     argument
are that           Casey's         desires,                together             with    Ms. Saltiel's                opinion         that
those           desires       had         valid            underpinnings,                   constitute               overwhelming
evidence           that     modification                    of custody             was in Casey's               best        interest.
           It    is true          that        Casey's             stated        desire      to live          with      Randy meets
the requirement                   of fi 40-4-219(1)(d),                           MCA, regarding                the desires                of
a child            14 years              of     age or             older.              However,         Randy ignores                   the
"change of circumstances"                                  requirement                 and points         to no evidence                   of
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record      under         which      the District             Court         could      properly          make such a
finding       in this         case,        much less be mandated to do so as a matter                                    of
law.       Indeed,         his briefs         do not contain                a single       reference          to § 40-
4-219,      MCA.          We observe,              in this        regard,       that     Randy contended                 in
the District             Court      that     Casey's        age constituted              a sufficient              change
in circumstance                   as a matter         of law.         He cited          to no authority                 for
this      proposition              and cites         to none here.
          The 5 40-4-219,             MCA, findings               are jurisdictional               prerequisites
to a modification                  of custody          which       substantially            changes a child's
residential              living      arrangements.                Marriase         of Johnson,            879 P.2d at
694.         When those              prerequisites                have       not     been       met,       the      "best
interest"       standard             does not arise.
          Moreover,          Randy has not established                        any error          in the District
Court's       determination                 that     Casey's         best      interests          were served            by
remaining           in      Shirley's          primary         physical            custody.              Neither        Ms.
Saltiel        nor         Ms.      Hoxsey         affirmatively             recommended               a change          in
custody.        Ms. Hoxsey opined                    that     Casey's         desires,          on a stand-alone
basis,      were an insufficient                     reason       to modify         custody.             In addition,
both      Shirley         and Ms. Hoxsey described                       conflicts          regarding            Randy's
failure       to cooperate                 in following           visitation           rules      established            by
the court.
          Randy relies              primarily          on Casey's            wishes        to     live      with     him.
However,        neither             the      § 40-4-219,              MCA, criteria                nor       the     best
interest       standard             contemplates            a district          court      being         bound by the
stated      desires          of a 14-year-old                child    regarding          his best          interests.
See §§ 40-4-219                    and 40-4-212,              MCA.           Indeed,       the      discretionary

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nature     of a district        court's       grant      or denial      of a § 40-4-219,         MCA,
motion     to modify       custody    is clear        in the statutory         language     stating
that     the   court   "may in         its     discretion"         modify      a prior      custody
decree       in the event      it    makes certain          findings.
         We conclude         that     the     District        Court      did     not     abuse    its
discretion       in denying         Randy's    motion       for   modification         of custody.
         Affirmed.




We concur:
