No




                                                               No. 98-461

                          IN THE SUPREME COURT OF THE STATE OF MONTANA

                                                            1999 MT 208N




                                                  IN RE THE MARRIAGE OF

                                                        ANNETTE L. EFTA,

                                                    Petitioner and Respondent,

                                                                     and

                                                         RONALD S. EFTA,

                                                    Respondent and Appellant.




                           APPEAL FROM: District Court of the Seventh Judicial District,

                                                In and for the County of Wibaux,

                                     The Honorable David Cybulski, Judge presiding.




                                                    COUNSEL OF RECORD:

                                                             For Appellant:

                       Lorraine A. Schneider, Schneider & Howe, P.C.; Glendive, Montana


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                                                             For Respondent:

                            W. Corbin Howard, Attorney at Law; Billings, MT 59103-7177




                                               Submitted on Briefs: April 22, 1999

                                                    Decided: September 9, 1999

                                                                    Filed:




                                    __________________________________________

                                                                    Clerk

Justice Terry N. Trieweiler delivered the opinion of the Court.

¶1 Pursuant to Section I, Paragraph 3(c), Montana Supreme Court 1996 Internal Operating
Rules, the following decision shall not be cited as precedent but shall be filed as a public
document with the Clerk of the Supreme Court and shall be reported by case title,
Supreme Court cause number, and result to the State Reporter Publishing Company and to
West Group in the quarterly table of noncitable cases issued by this Court.

¶2 Annette Efta filed a petition for dissolution of her marriage to Ron Efta in the District
Court for the Seventh Judicial District in Wibaux County. The District Court entered a
decree which divided the marital estate, awarded custody of the couple's minor child, and
decided the issue of child support. Ron Efta now appeals the District Court's Findings of
Fact, Conclusions of Law, Property Distribution, and Final Decree of Dissolution. We
affirm the final decree of the District Court.

¶3 The following issues are presented on appeal:

¶4 1. Did the District Court err when it valued the marital estate at the time of trial rather
than at the time of the parties' separation?

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¶5 2. Did the District Court err by its allocation of the parties' assets and debts?

¶6 3. Did the District Court err when it awarded attorney's fees and costs to Annette?

¶7 4. Did the District Court err when it did not award Ron child support and medical
expenses for the couple's minor child, and when it adopted the terms of the final parenting
plan?

                                                FACTUAL BACKGROUND

¶8 Annette and Ron Efta were married in 1975. Annette had completed college and was a
teacher at Billings Senior High School at the time of the marriage. Several days after the
wedding, Annette and Ron moved to Missoula so that Ron could attend law school.
Annette quit her job and converted her retirement funds to cash, so that she could
accompany Ron. During their marriage, the couple had three children. Annette taught
school for one year after returning to Wibaux, but stayed home to care for the children
after their second child was born. Throughout their marriage, Annette was the primary
care giver for the three children. Annette helped out on the farm when asked, but her
primary responsibilities were raising the children and caring for the family home. Annette
eventually returned to teaching and at the time of trial was a tenured teacher with 12 to 13
years' experience.

¶9 When Ron and Annette moved back to Wibaux from Missoula in 1978, they purchased
a home with a $30,000 loan from Annette's parents. They paid back all but $7000 of the
home loan. Annette's parents forgave the remaining $7000.

¶10 Ron's mother died in 1989, and in 1990 Ron bought his mother's farm. Annette's
mother loaned Ron $50,000 to help him purchase the farm. Ron paid back all but $10,000
of the loan. Annette's parents forgave the remaining amount.

¶11 During the course of their marriage, Annette's parents were very generous to both
Ron, Annette, and their children. Annette's parents established a mineral trust for Annette
and her siblings, and investment accounts for Annette and her three children. Annette used
gift money from her parents and borrowed money from her children's investment accounts
to purchase an apartment building in Billings with her sister. None of the money for the
apartment building came from Ron, and he was not in any way involved in the purchase.


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Annette's parents managed the apartment building. The apartment building losses were
used to reduce Annette's and Ron's joint tax liability.

¶12 In 1995, Ron moved out of the family home and into the farm house. At that time,
Ron had completely paid off the debt related to the purchase of the farm. Annette
continued to care for the children, and from time to time washed and ironed Ron's clothes.
Annette also returned to teaching full-time.

¶13 The District Court valued the marital estate at the time of trial in March 1998. The
District Court set aside the gifts that Annette had received from her parents and the
apartment building as Annette's separate property. The District Court also set aside as
Ron's separate property the amount of the inheritance from his mother that he used to
purchase the farm, and found that the remaining value of the farm had been acquired with
marital assets. The District Court, therefore, found that the remaining value of the farm
was marital property. Additionally, the District Court found that both parties contributed
substantially to the marriage, and that Annette's care for the home and children allowed
Ron to aggressively pursue his law practice.

¶14 The District Court divided the marital estate, and ordered Ron to pay to Annette the
sum of $261,797 to equalize the distribution, plus the $35,000 agreed upon for the marital
home. The District Court also found that Ron's earning potential was substantially greater
than Annette's, and that Ron, therefore, should pay more of their daughter Meghan's
expenses. Neither parent was ordered to pay child support to the other, and Ron was not
required to pay child support to Annette for the care of Aaron and Meghan during the two
years of separation while the children resided with Annette. The District Court further
found that the voluntary direct payment of expenses by Ron during that time did not
qualify as child support. Finally, the court held that it was appropriate to award Annette
attorney's fees and costs due to Ron's "refusal to comply with the rules of discovery
voluntarily," due to his three motions to continue trial dates, and due to the disparity in
income earning ability of the parties. The court stated that if the parties were unable to
agree on an appropriate amount of reimbursement for attorney's fees and costs, then a
hearing would be held.

                                                  STANDARD OF REVIEW

¶15 This Court reviews a district court's division of marital property to determine whether
the court's factual findings are clearly erroneous. See In re Marriage of Robinson (1994),


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269 Mont. 293, 297, 888 P.2d 895, 897 (citing In re Marriage of Maedje (1994), 263
Mont. 262, 265-66, 868 P.2d 580, 583). If the findings are not clearly erroneous, we will
affirm the District Court's distribution unless we conclude that it has abused its discretion.
See In re Marriage of Stufft (1996), 276 Mont. 454, 459, 916 P.2d 767, 770 (1996).

¶16 Our standard of review of a district court's order granting or denying attorney's fees
and costs is whether the district court abused its discretion. See In re Marriage of
Gingerich (1994), 269 Mont. 161, 167-68, 887 P.2d 714, 718. Our standard of review of a
district court's grant or denial of Rule 37, M.R.Civ.P., sanctions for discovery abuses is
also an abuse of discretion standard. See In re Marriage of Rada (1994), 263 Mont. 402,
406, 869 P.2d 254, 256.

¶17 Finally, this Court also reviews district court child support determinations for an abuse
of discretion. See In re Marriage of Craib (1994), 266 Mont. 483, 490, 880 P.2d 1379,
1383.

¶18 The standard of review of a district court's conclusions of law is whether its
conclusions of law are correct. See in Re Marriage of Brown (1994), 263 Mont. 184, 187,
867 P.2d 381, 382 (citing In re Marriage of Burris (1993), 258 Mont. 265, 269, 852 P.2d
616, 619).

                                                                 ISSUE 1

¶19 Did the District Court err when it valued the marital estate at the time of trial rather
than at the time of the parties' separation?

¶20 This Court has stated that as a general rule marital property must be valued at or near
the time of dissolution. See In re Marriage of Walls (1996), 278 Mont. 413, 417, 925 P.2d
483, 485. The policy underlying the general rule is that determining past values of
property and assets is difficult, if not impossible, in many instances.

¶21 However, Ron asserts that the parties had separated their financial affairs long before
their physical separation; that neither participated in the other's separate business affairs;
and, that their separate business properties were held solely in their own names. Ron also
argues that he purchased additional farmland and equipment after the separation and that it
was acquired solely in his name. The thrust of his argument is that these items should not
have been included as marital property because he purchased them after he and Annette


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had separated, and because he put them solely in his name. However, we have held that
regardless who holds title, the court must take into consideration both spouses'
contributions to the property's maintenance and preservation. See In re Marriage of Engen,
1998 MT 153, ¶ 29, 289 Mont. 299, ¶ 29, 961 P.2d 738, ¶ 29.

¶22 Ron's argument fails in view of the record and the District Court's findings. Simply
because Ron acquired the tractor and land after he and Annette separated does not
necessarily mean that marital assets were not used to acquire them. As the District Court
found:

                  Since the parties separated in June of 1995, Husband had exclusive control
                  over virtually all of the income producing marital assets including his law
                  practice and the farm. Wife has not had practical control of any marital assets
                  other than the family home and her van. The assets and earnings accumulated
                  following their separation arose from the law practice and farm, and are
                  marital property.

....

                  Both parties contributed substantially to this marriage. Husband worked hard
                  on the farm and his law practice throughout the marriage. Wife raised the
                  children primarily and also resumed teaching when the children were older.

....

                  Because marital property under Husband's exclusive control was used to
                  produce the income that purchased the assets during the separation, there is no
                  equitable reason to value the marital estate at the time of separation.

¶23 The record demonstrates that Annette gave up her teaching job to move to Missoula
so that Ron could attend law school. She then spent many years raising their children and
taking care of the house, in addition to helping out on the farm when needed. Annette also
taught for 12 to 13 years thereby contributing to the family's income. Pursuant to § 40-4-
202(1)(a), MCA, the court was required to consider the nonmonetary contributions of
Annette in her homemaking capacity.

¶24 Additionally, the court took into account and credited Ron with the fact that the


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livestock had gained weight, that Ron had advanced the farm operation, and that the grain
proceeds had been used to pay expenses since the time of separation. Therefore, the
District Court did not include as marital property grain sold after November 21, 1997,
which had a value of $62,060.25.

¶25 After carefully reviewing the record, we conclude that the District Court did not abuse
its discretion when it valued the marital estate at the time of dissolution rather than at the
time of separation.

                                                                 ISSUE 2

¶26 Did the District Court err by its allocation of the parties' assets and debts?

¶27 Ron raises numerous issues regarding the District Court's allocation of assets and
debts. He asserts that the District Court erred when it failed to include Annette's interest in
a Billings apartment building in the marital estate; when it found that Annette was going
to sell stock in order to buy a house in Billings; when it considered Annette's tax
consequences for the unsold stock, and did not consider the tax consequences to Ron of
paying Annette $261,797 for equalization; when it included grain harvested in 1997 and
used to pay debt prior to trial and then used the amount of debt Ron owed at the time of
trial to value the marital estate; when it included debt incurred by Annette for her legal
expenses, college expenses, and apartment building expenses; when it did not include
Annette's interest in the H&V Mineral Trust established for Annette by her parents; and
when it excluded the 20 cattle Ron owned prior to their marriage.

        ¶28 A. Did the District Court err when it did not include Annette's interest in the
        Billings apartment building as marital property?

¶29 Ron asserts that Annette's interest in the Billings apartment building should be
included as marital property. The District Court, however, did not include Annette's
interest in the apartment building because it found that:

                  Her interest was a gift from her parents and her sister, Pat Emerson, made
                  with certain tax advantages in mind. There has never been any marital
                  investment of any kind in the apartment building. Husband has never seen the
                  building. Wife has never rented an apartment to a tenant, mopped a floor or
                  invested a penny of her own earnings in this asset. Wife's ownership interest


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                  should be separately set over to her.

The District Court likewise set aside a portion of the farm, totaling approximately
$108,224 as Ron's separate property, because that was the amount of money Ron inherited
from his mother and used to partly fund the purchase of the farm. Pursuant to § 40-4-202,
MCA, when dividing marital property acquired prior to the marriage or by gift or bequest,
the District Court was required to:

                  [C]onsider those contributions of the other spouse to the marriage, including:

                  (a) the nonmonetary contribution of a homemaker;

                  (b) the extent to which such contributions have facilitated the maintenance of
                  this property. . . .

See also In re Marriage of Binsfield (1994), 269 Mont. 336, 343, 888 P.2d 889, 893.

We conclude that the District Court did take the lack of such contributions into account
when it found there has never been any kind of marital investment in the apartment
building. The record demonstrates that neither Ron nor Annette invested money or time in
the apartment building. We have construed § 40-4-202, MCA, to mean that regardless who
holds the title, gifted property need not be included as a marital asset unless the
nonacquiring party contributed to its preservation or appreciation. See Marriage of Engen,
¶ 29. Where the nonacquiring spouse contributes to the appreciation or preservation of
gifted or preacquired property, she or he is entitled to an equitable share of the preserved
or appreciated value. See Marriage of Engen, ¶ 29.

¶30 Our review of the record confirms that there was substantial evidence to support the
District Court's finding that Annette acquired the apartment building interest with gift
money from her parents, and that no marital assets were contributed for the purchase or
maintenance of the building. We hold that the District Court's finding that it was Annette's
separate property was not clearly erroneous.

        ¶31 B. Did the District Court err when it considered the tax consequences to Annette
        for unsold stock, and when it did not consider the tax consequences to Ron for
        paying Annette the equalizing payment?

¶32 At trial, Annette's sister, who is a CPA, testified that at the direction of Annette's
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attorney, she computed the probable tax consequences of the sale of certain stocks so that
Annette could reduce her debt and purchase a house in Billings.

¶33 Ron presented no evidence of adverse tax consequences that might result from having
to pay Annette any money. The only testimony Ron offered regarding any payments to
Annette was that he would have to borrow money to purchase Annette's share of the house
in Wibaux.

¶34 This Court has held that:

                  [W]here a property distribution ordered by a court includes a taxable event
                  precipitating a concrete and immediate tax liability, such tax liability should
                  be considered by the court before entering its final judgment.

See In re Marriage of Beck (1981), 193 Mont. 166, 171, 631 P.2d 282, 285. We have also
held that:

                  [A] District Court does not abuse its discretion by refusing to consider
                  theoretical tax consequences when the court-ordered property distribution
                  does not contemplate any taxable event which triggers present tax liability.
                  But where a present tax liability will be triggered by the court-ordered
                  distribution, the court must make allowance for such tax impact. . . . We hold,
                  therefore, that at a new hearing, the trial court must consider any concrete and
                  immediate adverse tax impact that a division of marital property might have
                  on the parties.

See Marriage of Beck, 193 Mont. at 173, 631 P.2d at 285.

¶35 Although the District Court's finding of tax consequences to Annette was supported
by substantial evidence, Ron failed to produce any evidence upon which the District Court
could have determined whether and to what extent he would suffer any tax consequences.
We have held that where only theoretical contentions are the basis for asserting tax
consequences, that the District Court does not err by declining to consider them. See In re
Marriage of Turbes (1988), 234 Mont. 152, 160, 762 P.2d 237, 241.

¶36 In this case, the District Court ordered that Ron pay Annette the equalizing payment in
either property or cash. There was no evidence of tax consequences presented. Absent any

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evidence of adverse tax impacts, Ron's claims are purely theoretical. Accordingly, we hold
that the District Court did not err by its treatment of the parties' respective tax obligations.

        ¶37 C. Did the District Court err when it included grain harvested in 1997 and used
        to pay debt prior to trial and then used the amount of debt Ron owed at the time of
        trial in valuing the marital estate?

¶38 In Issue 1, we discussed the valuation of the grain. We held that the District Court did
not err when it included grain inventoried on November 21, 1997, but excluded from
marital assets the sale of grain after that date which had a value of $62,060. Ron presented
no evidence that the proceeds from the sale of grain were used solely to pay debts.
Moreover, the District Court found that Ron's cash flow in 1997 was $303,462, not
including borrowed funds, and that:

                  All of these funds arose from his exclusive control of marital assets. Husband
                  used these assets not only to purchase other marital assets, but also for his
                  own personal benefit and enjoyment. For example, he took an expensive
                  vacation to Ireland, bought expensive tickets to the Minnesota Vikings
                  football games, went to a bowling tournament in Nevada and so forth.

Ron presented no evidence that the grain money was used solely to pay down debt. The
money could just as easily have been used to pay for the expenses that the court noted in
its findings.

¶39 Ron also asserts that it is unfair to establish the amount of debt at the time of trial.
Instead, he apparently argues that the debt should have been established at the same time
that the grain was inventoried by Mr. McFarland, Annette's expert witness. However, the
District Court valued all other assets at the time of trial. As Ron himself urges, the court
should value all assets and debts as of the same time. That is what the court did. What the
court also did, however, was to exclude from marital assets grain harvested and sold after
November 1997. The court set aside the $62,060 profit from the grain as Ron's separate
property. We conclude that the District Court did not err by its treatment of grain
harvested in 1997 and its treatment of debt at the time of trial.

        ¶40 D. Did the District Court err when it included debt incurred by Annette for her
        legal expenses, the children's college expenses, and apartment building expenses?



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¶41 As we have stated previously in this opinion, the District Court is granted broad
authority to equitably distribute the marital property. See Marriage of Robinson (1994),
269 Mont. at 297, 888 P.2d at 897 (citing Marriage of Maedje (1994), 263 Mont. at 265-
66, 868 P.2d at 583). Annette took out loans from her family to pay for her legal expenses
related to this lengthy divorce. The District Court found that these were marital debts, and
not separate debts chargeable to Annette. The court also found that Annette had taken out
loans for the children's college expenses, and that they too were marital debts. The court
included them as marital debts and credited them to Annette since she is the one who had
to take out the loans and who is ultimately responsible for their repayment.

¶42 However, we can find no evidence in the record supporting the contention that the
District Court counted any apartment building debts as marital debt. On the contrary, the
distribution chart prepared by the court shows that all apartment building debt was
credited to Annette as separate debt, not marital debt.

¶43 Our review of the record indicates that the District Court based its findings on
substantial evidence, and that its allocation of debt was not clearly erroneous.

        ¶44 E. Did the District Court err when it did not include Annette's interest in the
        H&V Mineral Trust established for Annette by her parents as part of the marital
        estate?

¶45 Ron asserts that the District Court erred when it failed to make any findings regarding
Annette's interest in the H&V Mineral Trust established for Annette by her parents.
However, our review of the record indicates that the District Court did make findings
regarding the H&V Mineral Trust. The court found that Annette's parents had created the
trust and transferred a beneficial interest to Annette and her siblings, and that she had
received $51,142 of income from the trust which she spent on her household and children.
The $51,142 figure is the total of trust distributions through 1996 as shown on Exhibit A
that Ron offered as evidence. The court made no further findings.

¶46 Ron urges that $27,000 of trust income should have been allocated to Annette. The
basis for this contention is that approximately two years prior to trial an offer was made to
lease 4150 mineral acres for $75 per acre. Annette has a vested one-quarter interest in the
trust, and her portion of the profits, had the lease been entered into, would have been
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¶47 However, nothing in the record indicates that such a lease was ever executed. In fact,
during cross-examination, Ron's attorney asked Annette:

Q. Have you been advised that he [the person who made the lease offer]

testified he offered $75 per acre for about 4,150 net mineral acres?

A. I know nothing about that.

Q. You would get one-fourth of that sum, would you not?

A. Yes.

Q. The trust is divided in four equal shares between your siblings, correct?

A. Yes.

Q. And one-fourth of that would be roughly $27,000. Have you ever asked your mother
why she didn't take that?

Ron and his attorney knew that the mineral lease had not been agreed upon. Nothing in the
record indicates that Annette actually received $27,000. The only evidence presented
shows that there was merely an offer, but no acceptance, of such a lease. Indeed, in Ron's
appellate brief he states that it was only an offer. Had the court attributed $27,000 to
Annette for this proposed lease it would have erred, because to do so would not have been
supported by the evidence. We affirm the District Court with respect to this issue.

                  ¶48 F. Did the District Court err when it refused to exclude from the marital
                  estate 20 cattle Ron owned prior to the marriage?

¶49 The District Court found that there was no evidence that the current livestock could be
traced to the livestock Ron owned 23 years ago, and that all of the livestock was marital
property. The District Court had substantial evidence to support its finding. There was no
evidence presented that current livestock were traceable to original livestock. Moreover,
Ron did not present any evidence of the value of the original 20 cows. Ron correctly cites
to In re Marriage of Keedy (1991), 249 Mont. 47, 50, 813 P.2d 442, 444, for the
proposition that premarital property minus the contributions of the other spouse and the
increased value since the time of marriage, should be excluded from the marital estate. See
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also Marriage of Engen, ¶ 29. However, where no evidence of the value of property
acquired prior to marriage is presented, the court cannot properly make findings and
distributions regarding that property.

¶50 Furthermore, we have stated that where there is no evidence that any part of the
premarital property can be traced to marital property, such property need not be treated
separately by the court in making property distributions. See In re Marriage of Miller
(1989), 238 Mont. 197, 777 P.2d 319. We conclude that the District Court did not err by
including all of the couple's livestock in the marital estate.

                                                           CONCLUSION

¶51 The District Court had broad equitable powers to distribute the marital property. See
Marriage of Robinson (1994), 269 Mont. At 297, 888 P.2d at 897. This Court will not
overturn the District Court's findings unless they are not supported by substantial evidence
or are clearly erroneous. Our careful review of the record indicates that the District Court's
findings regarding property were not clearly erroneous and that its distribution of property
did not result from an abuse of discretion. Therefore, we affirm the District Court's
allocation of the parties' assets and debts.

                                                                 ISSUE 3

¶52 Did the District Court err when it awarded attorney's fees and costs to Annette?

¶53 The District Court awarded Annette attorney's fees and costs in part due to the
disparity in the earning potentials of the parties. The court also based its decision on Ron's
refusal to voluntarily comply with discovery requests, and his dilatory manner of dealing
with this lawsuit in general. As the District Court stated in its findings of fact:

                  There is substantial disparity in income earning ability of the parties.
                  Husband's refusal to comply with the rules of discovery voluntarily has
                  required three motions to compel and two orders of this Court. He refused to
                  comply with discovery rules and answer written discovery for over a year.
                  Some of the items requested, the deposit slips from his accounts, were not
                  delivered to Wife's counsel until less than a week prior to trial. Husband filed
                  a petition for conciliation in the fall of 1996. He has filed three motions to
                  continue trial settings. The last motion was based in part on his desire to

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                  attend a bowling tournament the week prior to trial. Under these
                  circumstances it is appropriate that Husband reimburse Wife her attorney's
                  fees and costs.

We agree with the District Court on this matter.

¶54 Rule 37(a)(4) of the Montana Rules of Civil Procedure provides that the trial court
may award the expense, including attorney's fees, of a successful motion to compel
discovery. Likewise, Rule 37(d), M.R.Civ.P., provides that attorney's fees and costs may
be awarded for failure to answer interrogatories or respond to a request for inspection.

¶55 Moreover, this Court generally defers to a district court's decision regarding discovery
sanctions "because the trial court is in the best position to know whether parties are
disregarding the rights of opposing parties in the course of litigation and which sanctions
for such conduct are most appropriate." See Delaware v. K-Decorators, 1999 MT 13, ¶ 86,
973 P.2d 818, ¶ 86. This Court has consistently held that discovery abuses should not be
dealt with lightly, and that they should be punished rather than encouraged. K-Decorators,
¶ 87. Furthermore, Rule 37(b)(2) requires that courts order payment of attorney's fees and
costs by the party, or the party's attorney, that fails to obey a court's discovery order,
unless the court finds that the circumstances would make such an award unjust. See Rule
37(b) M.R.Civ. P.; see also K-Decorators, ¶ 88. In this case, as demonstrated by the
court's findings, the circumstances did not make such an award unjust.

¶56 Beyond Rule 37 sanctions, the District Court had the power to award attorney's fees
and costs pursuant to § 40-4-110, MCA, which provides as follows:

                  Costs -- professional fees. (1) The court from time to time, after considering
                  the financial resources of both parties, may order a party to pay a reasonable
                  amount for the cost to the other party of maintaining or defending any
                  proceeding under chapters 1 and 4 and for professional fees, including sums
                  for legal and professional services rendered and costs incurred prior to the
                  commencement of the proceeding or after entry of judgment. The court may
                  order that the amount be paid directly to the professional, who may enforce
                  the order in the professional's name.

In the instant case, the District Court's findings of fact indicate that it took both the Rule
37 sanctions and § 40-4-110, MCA, into account when it awarded Annette attorney's fees


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and costs.

¶57 This Court has held that an award of attorney's fees under § 40-4-110, MCA, must be
reasonable and necessary, and supported by competent evidence. See Marriage of
Gingerich, 269 Mont. at 168, 887 P.2d at 718. Furthermore, the party requesting attorney's
fees has the burden of demonstrating the necessity of the award. See Gingerich, 269 Mont.
at 168, 887 P.2d at 718.

¶58 Here, there was sufficient evidence to support the District Court's award of attorney's
fees and costs to Annette pursuant to § 40-4-110, MCA. There was evidence that Annette
had to resort to borrowing money from her family to pay her attorney's fees during the
pendency of this case. Additionally, the court found that the parties' income earning
potential was substantially unequal. The court had detailed evidence before it regarding
the assets, income, and potential income of the parties.

¶59 Pursuant to both § 40-4-110, MCA, and Rule 37, the court had ample authority to
award Annette's attorney's fees and costs associated with this case. We, therefore, affirm
the decision of the District Court.

                                                                 ISSUE 4

¶60 Did the District Court err when it did not award Ron child support and medical
expenses for the couple's minor child, and when it adopted the terms of the final parenting
plan?

¶61 Ron urges that the District Court should have required Annette to pay child support
because their youngest child had decided to live primarily with him. Both parties
submitted child support guideline calculations to the court along with their proposed
findings of fact. Additionally, both parties supplied the court with proposed final parenting
plans. The court had the benefit of both parties' child support calculations, both of the
parties' proposed parenting plans, and the testimony provided at trial on which to base its
decision.

¶62 Ron's proposed parenting plan, like the plan adopted by the court, recognized that
Meghan was fully "capable of making her own decisions about where she wishes to live.
The parents should honor that decision but they should not try to influence where Meghan
lives . . . . The parents and Meghan should try to maximize the amount of time that


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Meghan spends with each parent." At the time the court issued the final parenting plan,
Meghan was 16. The court found that there was no evidence presented that indicated that
the parties and their daughter could not work out an appropriate time sharing schedule.
The final parenting plan provided that Meghan should spend substantial time living at
each parent's residence, and that she was old enough to be allowed to go freely between
Annette's and Ron's homes after consulting with them.

¶63 In its findings of fact, the court stated that:

                  Husband has considerably greater income earning ability than Wife. Husband
                  will spend more time with Meghan. Wife has far less income earning ability
                  than Husband. Wife will spend less time with Meghan. The natural
                  consequence of this parenting arrangement is that Husband, with his greater
                  income will directly provide more of Meghan's economic support and Wife
                  with her much small [sic] income will provide less. Under these
                  circumstances it is equitable and in Meghan's best interests that neither party
                  be required to pay child support to the other. By the same token, Husband
                  should not pay child support to Wife for the time she maintained the primary
                  residence for Aaron and Meghan following the separation of the parties . . . .

¶64 Because the final parenting plan provided that Meghan should have freedom in
deciding which parent to spend time with and when, it was unclear how much time she
will actually be spending with each parent. The only certainty provided for in the plan,
other than the holiday schedule, was that Meghan would spend "substantial amounts of
time" with both parents and that she would have a voice in where she stayed and for how
long. Under these circumstances, the court's determination that neither parent should pay
child support was not an abuse of discretion. The court's child support determination
reflected the terms of the final parenting plan and realistically reflected the living
arrangements and financial situations of the parties. See In re Marriage of Anderson
(1993), 260 Mont. 246, 255, 859 P.2d 451, 457.

¶65 We conclude that in arriving at its final parenting plan and child support
determination, the District Court did not abuse its discretion. Therefore, we affirm the
District Court's final parenting plan and child support determination.

¶66 We affirm the final decree of the District Court in all respects.



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/S/ TERRY N. TRIEWEILER

We Concur:

/S/ J. A. TURNAGE

/S/ JAMES C. NELSON

/S/ WILLIAM E. HUNT, SR.

/S/ W. WILLIAM LEAPHART




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