                             NO.    92-039
           IN THE SUPREME COURT OF THE STATE OF MONTANA
                                   1993



IN RE THE MARRIAGE OF
JEFFERY P. WELCH,
           Petitioner and Respondent,
     and
CAROLYN L. PHILLIPS,                                       . ,    <;       ?
                                                                           ,
f/k/a CAROLYN WELCH,                                             .~"pei&
                                                    CLERK OF SUPREME COUR'r
           Respondent and Appellant.                   STATE OF MONTANA




APPEAL FROM:    District Court of the First Judicial District,
                In and for the County of Lewis and Clark,
                The Honorable Jeffrey Sherlock, Judge presiding.


COUNSEL OF RECORD:
           For Appellant:
               John L. Hollow, Attorney at Law,
               Helena, Montana
           For Respondent:
                Gregory W. Duncan, Harrison, Loendorf
                & Poston, Helena, Montana



                              Submitted on Briefs:      August 27, 1 9 9 2
                                             Decided:   March 9, 1993
Filed:
Justice Terry N. Trieweiler delivered the opinion of the Court.
     On October 10, 1991, appellant Carolyn L. Phillips, formerly
known as Carolyn Welch, was named primary residential custodian of
the parties' three children by order of the First Judicial District
Court, Lewis and Clark County. However, the court denied Carolyn's
motion to amend the pleadings to conform to the evidence, and in a
second order issued on December 30, 1991, denied Carolyn's request
for attorney fees.       From these judgments, Carolyn appeals.   We
affirm.
     The following issues are before this Court:
     1.        Did the District Court abuse its discretion when it
denied Carolyn's motion to amend the pleadings to conform to the
evidence?
     2.        Did the District Court err when it did not award child
support after modifying the custody order?
     3.        Did the District Court abuse its discretion when it
denied Carolyn's request for attorney fees?
     When Carolyn and Jeffery were divorced on December 15, 1989,
after     19   years of marriage, the court approved      a property
settlement agreement which the parties had both signed.           The
agreement provided that Jeffery was to receive in excess of
$100,000 in marital assets and Carolyn was to receive assets worth

about $2000.       The dissolution decree granted the parties joint
custody of their three children--Errin, born April 16, 1975; Emily,
                                              ,
born December 4, 1977; and Mary Ellen (Elleny) born June 22, 1981.
The residency of the children was to be shared as equally as
possible and neither party was required to pay child support.
        Shortly after the dissolution, when Carolyn remarried and
moved to Georgia, Jeffery petitioned for permanent custody of all
three children. On July 30, 1990, Jeffery and Carolyn entered into
a negotiated agreement which gave Jeffery custody of the children
during the school year and Carolyn custody during the summers and
school vacations.     The agreement provided for no child support
payments, but stipulated that Carolyn would pay all transportation
costs for the children to travel to and from Georgia during the
times they would be with their mother.
        Pursuant to this agreement, the children spent the remainder
of the summer with Carolyn, but at the end of the summer she
retained two of the girls in Georgia and repeatedly refused to
return them to Jeffery.     Finally, on September 13, 1990, Carolyn
was ordered to return the children to Montana and to pay a fine of
$500 a day.    She was also sentenced to, and served, three days in
jail.     Thereafter, Jeffery petitioned the court for an order to
show cause why Carolyn's future visitation should not be restricted
and sought payment of child support from Carolyn.     After several
hearings, continuances, and substitutions of counsel, the matter
went unresolved.
        On April 5, 1991, Carolyn petitioned to set aside the 1990
custody agreement on the basis of duress, fraud, undue influence,
and menace. Although Carolyn sought permanent custody of all three
children, no request was made for child support in the pleadings.
Hearings on this motion were held on May 23, 24, 28, 29, and
August 19, 20, and 21, 1991.   ~mmediatelyafter the hearings were
completed, Carolyn filed a motion to amend the pleadings to conform
to the evidence, and sought to have Jeffery held in contempt and to
have the original dissolution decree set aside on the grounds that
the property settlement agreement, on which the decree was based,
was unconscionable.
     During this same general time period, several events relating
to the children transpired.     The oldest daughter, Errin, was
experiencing serious emotional difficulties in Helena which experts
attributed partly to the people she was associating with, but also
to problems stemming fromthe divorce. After an attempted suicide,
she was hospitalized in a psychiatric care center in Helena for
several weeks and thereafter, although technically in the custody
of Jeffery, went to live with an aunt and uncle in Arkansas and
began attending school there.    Under the terms of the custody
agreement, Errin went to visit her mother in Georgia during spring
break in 1991.   In direct violation of court orders, Carolyn has
kept Errin in Georgia since that time and has never returned her to
Jeffery.   Apparently, when Jeffery realized Carolyn would not
return Errin to Arkansas, he delayed sending the other girls to
Georgia for the summer.     In an order issued on June 7, 1991,
Jeffery was required to send Emily and Elleny to Georgia, but the
order specified that they were to be returned to Montana no later
than August 15, 1991. Carolyn again violated this court order, and
the two girls did not return to Montana until later in August.
    On October 10, 1991, the District Court issued its findings of
fact and conclusions of law in response to Carolyn's motions, and
judgment was entered on November 20, 1991.    The District Court
modified the custody order and awarded residential custody to
Carolyn during the school year, and to Jeffery during summers and
school vacations.   This decision was reached after the court
considered the ages and wishes of the children, the evidence of
each party's performance as a parent, and the importance of not
separating the children. The court found that Jeffery was a caring
and capable parent who provided a healthy and clean environment,
but that Carolyn, when she was not manipulating the children, was
a good mother and was more apt to be involved in the children's
activities on a regular basis.
     Prior to the change of custody, however, Carolyn was required
to pay $3000 to the court for fines, Jeffery's attorney fees of
$3040, and another $1500 as attorney fees for the children.   The
court further ordered that if Carolyn failed to return any of the
children to Jeffery at the established vacation times, or during
the summer, sole custody would immediately revert to Jeffery.
Jeffery was ordered to assume all transportation costs to and from
Montana in lieu of child support.
     The court also denied Carolyn's motion to amend the pleadings
to conform to the evidence, and therefore, did not set aside the
1989 separation agreement.   Although the motion to set aside the
July 30, 1990, custody agreement was now irrelevant, the court
stated that it found no credible evidence to show that Carolyn did
not enter into the agreement voluntarily while represented by an
attorney.
     Finally, the court specifically stated that it was retaining
jurisdiction over the matter to insure that Carolyn attempted no
further     manipulations   which    would   interfere   with   Jefferyls
relationship with his children, and to insure that the visitation
schedule was complied with.
     In response to the court's denial of her motion to amend the
pleadings to conform to the evidence and             to set aside the
separation agreement as unconscionable, Carolyn filed a notice of
appeal on December 18, 1991.        On appeal, Carolyn also raised the
issue of the court's failure to make an award of child support
after granting her primary residential custody.             Carolyn had
previously filed a bill of costs on October 17, 1991, in which she
argued that she was entitled to her attorney fees because she had
prevailed on the custody issue.           This request was denied in a
December 30, 1991, order, which required each party to bear his and
her own attorney fees.        From this, and the October 10, 1991,
orders, Carolyn appeals.
                                     I.
     Did the District Court abuse its discretion when it denied
Carolyn's motion     to amend       the pleadings   to   conform to the
evidence?
     Carolyn contends the court erred when it denied her motion to
amend the pleadings to conform to the evidence in regard to the
original property distribution agreement because the original

                                      6
agreement should have been declared unconscionable as a matter of
law and was induced by fraud.      In its order, the court concluded
that the issue of whether the separation agreement was invalid
should have been addressed prior to the hearings to allow all
parties an opportunity to submit evidence, and that it would be
unfair to permit Carolyn to raise such serious allegations at this
point.
     Whether a party is permitted to amend the pleadings to conform
to the evidence pursuant to rule 15(b), M.R.Civ.P., is within the
discretion of the trial court and this Court will not disturb that
decision absent an abuse of discretion.     Glacier Natiorzal Bank v Clzallirlor
                                                                   .

(1992), 253 Mont. 412, 833 P.2d 1046; Keasterv. Bozik (l98l), 191 Mont.

293, 623 P.2d 1376.     In this case, after considering the fact that
Carolyn could have raised these issues and submitted evidence prior
to the hearings, and in light of certain representations that were
made to the court during the hearings, we hold that the court did
not abuse its discretion when it denied Carolyn's motion.
     The record reveals that, during the hearings, when Carolyn's
attorney   raised   a   line of   questions which      referred      to    the
circumstances surrounding the parties' agreement, the judge stopped
the proceedings and asked the attorney specifically whether he was
attempting to overturn the original decree.       The response was no.
We also note that, during the 1991 hearings, Carolyn reaffirmed
statements made in 1989, at the time the divorce decree was
entered, to the effect that she was fully apprised of the effect of
the agreement and wanted no assets from the marriage.   In light of
these facts, we find no abuse of discretion in the court's refusal
to entertain consideration of this issue, particularly at a time
when Jeffery would have been denied the opportunity to respond to
Carolyn's allegations.
                               11.

     Did the District Court err when it did not award child support
after modifying the custody order?
     Carolyn also contends that the court erred by failing to award
her child support when it completely modified the 1990 custody
agreement.   Carolyn argues that the provision in the order
requiring Jeffery to pay transportation costs constituted an order
"concerning child support."     Relying on   §   40-4-204, MCA, she
maintains that the court was required to apply the uniform child
support guidelines and establish an appropriate amount of child
support in view of the new custody arrangement.
     Section 40-4-204(3), MCA, provides that when a court issues or
modifies an order concerning child support, the standards outlined
in   40-4-204(2), MCA, and the uniform child support guidelines,
must be considered, and if no support order is made, the court must
state its reasons for not doing so.   We note, however, that this
statute only applies when the issue of support is before the court.
     In this instance, the issue of child support was not before
the court--there was no request for support raised by either party
in the pleadings that were being considered by the court, no
testimony was adduced establishing a need for support, and no
evidence was offered concerning child support. Furthermore, in the
proposed findings of fact and conclusions of law submitted by the
parties after the trial, neither party addressed child support.
     Because the issue of child support was not before the cour
we find no error in the court's failure to make such an award.
                                111.

     Did the District Court abuse its discretion when it deni
Carolyn's request for attorney fees?
     Finally,   Carolyn   maintains    that   the   court   abused     its
discretion when it refused to order Jeffery to pay her attorney
fees after she was named as primary residential custodian.
     Section 40-4-110, MCA, provides that a court may, after
considering the financial resources of both parties, order a party
to pay reasonable costs and attorney fees to the other party in any
dissolution or custody proceeding.     When reviewing the discretion
vested in the district court under this statute, this Court will
not disturb a district court's findings on appeal if there is
substantial evidence to support those findings.       In re Mam'age of Hall

(1990), 244 Mont. 428, 798 P.2d 117.
     In this instance, the court first noted that Carolyn failed to
satisfy a showing of necessity which is a condition precedent to an
award of attorney fees.   I reMam'age ofForsman (1987),
                          n                               2 2 9 Mont. 411,

747 P.2d 861.   Carolyn failed to testify concerning her inability
to pay the fees in question on numerous occasions when testimony
would have been appropriate, and never demonstrated Jeffery's
ability to pay the fees requested.      The court also noted that both
Jeffery and Carolyn were responsible for the fact that excessive
attorney fees had been incurred during this prolonged litigation,
and as such, neither party should be responsible for paying the
other's costs.
     We have previously held that when a trial court refuses to
award attorney fees, the underlying reasoning must be indicated in
the findings of fact. Forsmaiz, 7 4 7 P.2d at 8 6 4 .   In this instance,

the court clearly set forth and substantiated its reasoning for not
granting Carolyn's request.       We hold that the District Court did
not abuse its discretion when it refused to award attorney fees to
Carolyn.
     The decision of the District Court is affirmed.




We concur:
                                     March 9, 1993

                             CERTIFICATE O F SERVICE

I hereby certify that the following order was sent by United States mail, prepaid, to the
following named:


John L. Hollow
Attorney at Law
44 W. 6th St.
Helena, MT 59601

Greg W. Duncan and John P. Poston
Harrison, Loendorf & Poston
2225-11th Ave., Ste. 21
Helena, MT 59601

Randi Hood, Esq.
L & C County Courthouse
228 Broadway
Helena, MT 59623

                                                ED SMITH
                                                CLERK OF THE SUPREME COURT
                                                STATE O F MONTANA
