                      No. 13310
       IN THE SUPREME COURT OF THE STATE OF MONTANA
                          1977


MURIEL R. SOLIE,
                   Plaintiff and Respondent,
      -vs-
ROBERT L. SOLIE,
                   Defendant and Appellant.


Appeal from:   District Court of the Fourteenth Judicial
                District,
               Honorable Nat Allen, Judge presiding.
Counsel of Record:
    For Appellant:
        ~ibbs,Sweeney and Colburg, Billings, Montana

    For Respondent:
        Jones, Olsen and Christensen, Billi.ngs, Montana
        Paul G. Olsen argued, Billings, Montana
       The matter is deemed submitted on briefs.


                             Submitted:      January 26, 1977

                                 Decided :
                                             MAR 10 1971
M r . J u s t i c e Gene B. Daly d e l i v e r e d t h e Opinion of t h e Court.


             T h i s i s an appeal by Robert L. S o l i e , t h e f a t h e r , from

a f i n a l modified judgment of t h e d i s t r i c t c n u r t , Musselshell County,

denying h i s r e q u e s t f o r i n c r e a s e d v i s i t a t i o n r i g h t s w i t h h i s minor

c h i l d P e t e r and g r a n t i n g t h e c r o s s - p e t i t i o n of Muriel S o l i e , t h e

mother, f o r r e d u c t i o n of R o b e r t ' s v i s i t a t i o n r i g h t s , i n c r e a s e of

support and a t t o r n e y f e e s .

            Muriel was g r a n t e d a d i v o r c e from Robert on February 3 , 1969.

The d e c r e e i n c o r p o r a t e d a p r o p e r t y s e t t l e m e n t agreement whereby

Muriel r e c e i v e d R o b e r t ' s i n t e r e s t i n t h e family home, s u b j e c t t o a

mortgage, alimony i n t h e amount of $250 p e r month through September

1, 1971, support of $100 p e r month f o r each o f t h e two minor c h i l d r e n ,

Suzanne age 9 y e a r s and P e t e r age 2 y e a r s , a t t o r n e y f e e s , t h e family

c a r and s a t i s f a c t i o n of a l l o t h e r o b l i g a t i o n s of t h e p a r t i e s .

I n a d d i t i o n , Robert agreed t o maintain a p o l i c y of l i f e i n s u r a n c e

of $50,000 upon h i s l i f e w i t h t h e c h i l d r e n a s b e n e f i c i a r i e s .

            Robert S o l i e i s a 39 year o l d i n s u r a n c e man w i t h s u p e r v i s o r y

d u t i e s t h a t r e q u i r e h i s absence from home s e v e r a l days a week. His

new w i f e Ann i s a school t e a c h e r and t o g e t h e r they have a n income

of $33,270.          They have a 4 bedroom, 2 s t o r y home on 10 a c r e s of

ground i n Emerald H i l l s n e a r B i l l i n g s , Montana and can provide

horseback r i d i n g , s l e d d i n g , swimming and o t h e r a c t i v i t i e s a s s o c i a t e d

with r u r a l l i v i n g .    Residing i n t h e home a r e Suzanne, now age 15

(daughter of p a r t i e s h e r e t o ) ; J e f f r e y age 7 (Ann's by previous

m a r r i a g e ) ; and J e n n i f e r , age 4 , t h e daughter of Robert and h i s new

w i f e Ann.

            Muriel i s a 36 y e a r o l d school t e a c h e r w i t h h e r M a s t e r ' s

degree and working on a D o c t o r ' s by t a k i n g s e v e r a l c l a s s e s a q u a r t e r
at Eastern Montana College, BLllings, Montana.   She has not
remarried and lives in the small home she obtained in the divorce
property settlement, with son Peter, now aged 9 years, the subject
of this litigation. Her income is a gross of $11,500 per year,
or $680 take home per month for 10 months.   She has $400 in the
Teacher's Credit Union saved for expenses during the two months
she receives no salary and a bank balance of $70.   She drives a
1967 Pontiac automobile. She purchased a TV for the children just
last year for $1.00.
        Since the divorce in 1969 Robert has failed to meet his
financial obligation in regard to support and has been delinquent most
of the time.   This has created a stormy and hostile atmosphere with
several contempt proceedings, numerous execution writs, etc. from
1970 until the present.
        On June 21, 1971, the district court found it necessary to
limit the visitation rights of %bert   after hearing his petition
for increased visitation. In its order the court stated:
        "* * * the Court deems it necessary that some firm
        direction be gi'ven to petitioner---defendant's
        visitation privileges * * *."
In December 1978, the court agreed to again approve increased
visitation for Robert which was rewarded in 1975 with a less than
straightf6mrd maneuver by Robert to gain full custody of daughter
Suzanne. The record further reveals a serious alienation has
developed between Muriel and her daughter since custody went to
Robert, which was evidencing itself during the custodial change.
        On January 2, 1976, Robert filed a petition to increase his
temporary custody rights with the minor son Peter to include 7
alternate holidays, 6 weeks during the summer in addition to alter-
nate weekends from Friday to Sunday.
          Muriel filed her cross-petition January 9, 1976 asking for

a $50 per month increase in support for Peter and alleging Peter

does not enjoy visitation at Robert's residence and asked for a
decrease in visitation rights to Robert to one weekend a month,

rather than the two now in effect and attorney fees in the amount



          The matter was heard on January 12, 1976 and the court

filed its modified decree on March 3, 1976. After extensive findings
of fact, the court made conclusions of law that the best interest

of the minor child Peter Solie, so that there would be no mental

or emotional detriment,would be best served by reduction ofthe

visitation right to one weekend per month; granted the increase in
child support to Muriel and awarded her $250 attorney fees. From
this modified decree Robert appeals.
          The issue presented for review is the application of the

facts of this case to the Uniform Marriage and Divorce Act, section

48-337, R.C.M. 1947, which establishes the statutory standard for
limitation of noncustodial parent's visitation.
          The Uniform Marriage and Divorce Act does apply to this

matter.    Section 48-341(3),       R.C.M.    1947; Richard W. Holm v. Allena

V. Holm,         Mont   .       2            P.2d        , 34 St.   Rep. 118,

decided March 2, 1977.

          Section 48-337, R.C.M.       1947, provides in pertinent part:

          "(2)  The Court may modify an order granting or denying
          visitation rights whenever modification would serve the
          best interest of the child; but the court shall not restrict
          a parent's visitation rights unless it finds that the
          visitation would endanger seriously the child's physical,
          mental, moral, or emotional health."
            Here Robert argues t h a t "The c o u r t d i d n o t f i n d , nor

could i t f i n d on t h e evidence presented, t h a t t h e c u r r e n t v i s i t a -

t i o n schedule would endanger s e r i o u s l y P e t e r S o l i e ' s p h y s i c a l ,

mental, moral o r emotional h e a l t h .             Rather t h e c o u r t i n Conclusion

o f Law No. 1 applied t h e ' b e s t i n t e r e s t of c h i l d ' r a t i o n a l e i n       .

concluding t h a t v i s i t a t i o n should be reduced.             That t e s t i s c l e a r l y

not a p p l i c a b l e t o a reduction i n v i s i t a t i o n . "

           He f u r t h e r argues t h i s Court has n o t previously considered

o r i n t e r p r e t e d t h e language contained i n s e c t i o n 48-337, R.C.M.

1947, and c i t e s t h e Court t o a Colorado d e c i s i o n t h a t very b r i e f l y

alluded t o t h e problem, b u t does n o t d i s c l o s e any evidence i n t h a t

case.     He f u r t h e r quotes from t h e Commissioners' Note d i r e c t e d

t o t h e "Act" under $407, 9 U.L.A.               p. -509, which i s t h e same a s

s e c t i o n 48-337, R.C.M.      1947:

           "* * *        Although t h e standard i s n e c e s s a r i l y somewhat
           vague, i t was d e l i b e r a t e l y chosen t o i n d i c a t e i t s
           stringency when compared t o t h e ' b e s t i n t e r e s t ' standard
           t r a d i t i o n a l l y applied t o t h i s problem. The s p e c i a l
           standard was chosen t o prevent t h e d e n i a l of v i s i t a , t i o n
           t o noncustodial parent on t h e b a s i s of moral judgments
           about p a r e n t a l behavior which have no relevance t o t h e
           p a r e n t ' s i n t e r e s t i n o r capacity t o maintain a c l o s e
           and benign r e l a t i o n s h i p t o t h e c h i l d . The same onerous
           standard i s a p p l i c a b l e when c u s t o d i a l parent t r i e s t o
           have t h e noncustodial p a r e n t ' s v i s i t a t i o n p r i v i l e g e s
           r e s t r i c t e d o r eliminated." (Emphasis suppli-ed. )

           The reference t o p a r e n t a l behavior i n t h e Commissioners'

Note i s pointed a t t h e Uniform Marriage and Divorce Act $402 which

was n o t adopted by Montana.              The exact p e r t i n e n t language i n 6402

is:

           "The Court s h a l l n o t consider conduct of a proposed
           custodian t h a t does n o t a f f e c t h i s r e l a t i o n s h i p t o
           t h e child."

See: 37 Montana Law Review, No. 1, p. 129.
            However, t h i s Court moved away from t h a t type of moral

judgment sometime ago.              Foss v. L e i f e r ,   - .
                                                             Mont             , 550   P.2d

1309, 33 S t . Rep. 528, 530.              The standard of p h y s i c a l , moral,

mental o r emotional h e a l t h used i n t h e Act does n o t introduce

any new concepts i n t o t h e law a s it has e x i s t e d i n Montana f o r

many years.        See: Section 91-4515, R.C.M.               1947 (repealed i n 1975

by t h e adoption of t h e Uniform Marriage and Divorce A c t ) ; Gilmore

v. Gilmore, 166 Mont. 47, 530 P.2d 480; G i l b e r t v. G i l b e r t , 166

Mont. 312, 316, 533 P.2d 1079; I n r e Adoption of Biery, 164 Mont.

353, 522 P.2d 1377 and c a s e s c i t e d t h e r e i n .

           Therefore, no i n t e r p r e t a t i o n of t h e new s t a t u t e i s required.

F u r t h e r , t h e standard announced i n t h e Montana c a s e s c i t e d above,

and most r e c e n t l y i n G i l b e r t i s :

           "This Court a l s o recognizes t h e s u p e r i o r p o s i t i o n
           of t h e t r i a l judge i n such m a t t e r s and w i l l n o t
           disturb the t r i a l c o u r t ' s findings unless there i s
           a mistake of law o r a f i n d i n g of f a c t n o t supported
           by c r e d i b l e evidence t h a t would amount t o a c l e a r
           abuse of d i s c r e t i o n . "

           Here, w e do n o t f i n d abuse of d i s c r e t i o n o r mistake of

law i n t h e record a s it s t a n d s , however, we do n o t have a v a i l a b l e

t o us t h e e n t i r e record.       Both p a r t i e s agree important d i s c u s s i o n s

were had by t h e t r i a l judge i n chambers with t h e p a r e n t s t o g e t h e r

and with counsel and then with t h e c h i l d r e n , w i t h counsel p r e s e n t .

There were no o b j e c t i o n s placed i n t h e record before us t o t h e

l a c k of a record of t h e s e proceedings.               Section 48-334(1), R.C.M.



           W f i n d s u b s t a n t i a l evidence i n t h e record t o support t h e
            e

i n c r e a s e i n c h i l d support i n t h e amount of $50 p e r month.           The

mother's testimony t h a t h e r c o s t s had increased $75 p e r month s i n c e

t h e f a t h e r took f u l l custody of Suzanne was n o t r e f u t e d .        The f a c t
     she has no funds except for Credit Union savings which must
     apply to expenses during the two months she receives no salary was
     not questioned. The lack of ability to pay attorney fees is not
     questioned.   Robert complains that Muriel's financial picture was
     not sufficiently explored yet we find no issue presented that this
     opportunity was denied to counsel. This Court is mindful of its
     holding on attorney fees in First Security Bank of Bozeman v.
     Tholkes,      Mont   .   , 547 P.2d   1328, 33 St. Rep. 341. Yet no
     useful purpose will be sewed to require a hearing on reasonable-
     ness when only a nominal fee of $250 was ordered paid for the
     contested custody proceehings.
            The judgment of the district court is ,affirmed.




     We concur:




L.    Justices.
Mr. Justice Daniel J. Shea dissenting in part and concurring in
part:

          I concur in the result reached as to visitation and
child support but not in all that is stated on these matters.

        However, I dissent to this Court allowing an attorney's
fee of $250 as entered by the trial court, without proof of the

value of the attorney's fee; I do not question that the fee set
by the trial court was a reasonable one, but if we are going to

follow the recent case of First Security Bank of Bozeman v. Tholkes,
   Mont   .      , 547   P.2d 1328, 33 St.Rep. 341 (decided March 30,

1976), then the district court should take evidence on the value
of the attorney's fee before determining the amount.     This would

be a relatively simple procedure.

        A fee that is considered nominal to one party to a lawsuit
could well be considered astronomical to the opposing party.

That is precisely why there should be a hearing.
