                                      No.    92-237
               IN THE SUPREMECOURT OF THE STATE OF MONTANA
                                            1992


IN RE THE MARRIAGE OF
SHANNONK. HEBERT,
               Petitioner   and Appellant,
         and
THOMASP. HEBERT,
               Respondent   and Respondent.



APPEAL FROM:          District  Court of the Eighteenth  Judicial District,
                      In and for the County of Gallatin,
                      The Honorable Thomas A. Olson, Judge presiding.


COUNSEL OF RECORD:
               For Appellant:
                      Michael    V.    Sinclair,      Coil   & Sinclair,       Bozeman,
                      Montana
               For Respondent:
                      Mark L. Guenther,       Nash, Guenther,       Zimmer & Screnar,
                      Bozeman, Montana



                                        Submitted     on Briefs:     August    20, 1992
                                                         Decided:    October   29, 1992
Filed:



                                            Clerk
Justice       R. C. McDonough delivered                                the Opinion             of the Court.

        This      is     an appeal                 from      the        Eighteenth             Judicial        District,
Gallatin        County,           from           an order             denying         attorney's          fees      to     the
petitioner.             We affirm.
        There         is a sole             issue     on appeal:
          (1) Whether            the District                Court            erred     in denying          appellant's
requests        for     attorney's                fees.
        This          action           is         predicated                  upon      petitioner/appellant's
(petitioner)             motion             to      modify            child       support         and     enforce          the
dissolution            decree.              The decree             was issued             on June 20,            1984 and
incorporated            within          the decree            was Mr. and Mrs.                   Hebert's        Marriage
and Property            Settlement                Agreement.                  In the     agreement,           respondent
was to pay $200 for                    child        support        and one-half             of their        minor        son's
medical        expenses          which            were      not        covered         by petitioner's               health
insurance.            Respondent             was also         supposed to provide                   petitioner            with
a washer        and dryer              in good condition.                            A later      amendment to             the
decree       provided          that      the cost           of transporting                 the child         for    summer
visitation        was to be shared                        equally         by the parties.
        Petitioner             filed         a petition               to modify         child      support,         collect
arrearages        for child             support           and medical             expenses,         and for delivery
of   a washer           and dryer.                  In     respondent's                answer,       he stated            that
there      was not a sufficient                          increase         in his        financial         resources           to
warrant       a modification                     in child         support.             He also      stated       that      the
petitioner            did not provide                 him with            adequate         information           to allow
him to        determine          his        share         of the medical                 expenses.           He further
contended        that      he did              provide        a washer               and dryer       to     petitioner.
                                                                  2
Finally,         he alleged            that     the petitioner             owed him one-half                the cost
of visitation              travel        expenses.
        A hearing            was held          on the petition.                At the conclusion              of the
hearing      the judge            requested         proposed         findings         of fact,         conclusions
of law and an order                    from both          parties.
         Pursuant          thereto        petitioner             proposed      that     the respondent               pay
$646       per     month         in     child      support,           $553.14          in     overdue        medical
expenses,          child        support        arrearages         and that        he deliver         a washer and
dryer      in good condition.                    She also proposed              that        the respondent           pay
attorney's           fees       for    each party.
         Respondent             proposed        in his      order      that     he should           indeed pay an
increase          in child          support       and he calculated                the payment             due to be
$350 per month.                  He stated        that     the issues           of medical           expenses        and
child      support         arrearages,           as well      as visitation             travel       expenses had
been resolved.                   He also        contended           that    the     washer         and dryer         had
been previously                  delivered.              Finally,          he contended             that     neither
party      was the          "prevailing           party"          so each should               pay his/her           own
attorney's           fees.
         In the court's                Findings        of Fact,       Conclusions            of Law and, Order
issued       on March             5,      1992,     it     concluded           that         petitioner        should
receive          child      support           in the      amount of           $416.91        per    month and an
extra      $75 per month until                   the arrearages            were paid.              Respondent        was
also     ordered           to    pay $553.13             in medical           expenses         previously           due.
The court          ordered          each party           to pay their          own attorney's               fees.
         The petitioner                filed     a motion        to amend the judgment                   concerning
attorney's           fees       on March 16, 1992.                   Petitioner's             motion       was based

                                                             3
on a provision               in     the      parties'           marital            and property             settlement
agreement        which had been incorporated                               into     the dissolution             decree.
This     provision          stated:
         In the event that either         party shall institute     legal
         proceedings to enforce, modify or interpret          any provision
         of this agreement, the Court shall award, in addition              to
         any other appropriate      relief,    a reasonable attorney's    fee
         to the prevailing     party.

         The     motion           was      heard         and       an      order      denying          petitioner's
attorney's        fees was issued.                     The court           denied the motion                 because of
its     conclusion          that      there       was no prevailing                   party        in the      action.
         The petitioner                  argued        that         she      was the             prevailing        party
because her request                  for     increased             child      support        and for        payment       of
medical        expense       arrearages            had been granted.                       The District          Court,
however,         concluded            that       the      respondent               prevailed          on the       child
support        increase       issue        because he had agreed to an increase                                 of $350
and the        petitioner           had calculated                  an increase             to     $646 per month.
The judge        noted       that       the final          child           support        order     to pay $416.91
was only        $66.91 above respondent's                           calculation            of $350 but $229.09
below the petitioner's                       calculation.
         The court        also       concluded           that       petitioner            had prevailed           on the
medical        expenses            arrearages            and the            visitation            travel       expenses
issues.         Respondent            prevailed           on the child               support         issue     and also
the washer and dryer                    issue.         Respondent            had presented            proof     that      he
had previously              delivered            a washer and dryer                   to the petitioner                  but
she sold        them.        The court             also       concluded            that     because         each party
had "won" on two issues,                         there     was no "prevailing                      party"      and each
party     should      pay their              own attorney's                 fees     and costs.
                                                               4
          Post-trial                   motions            will          be reviewed                 for         abuse         of     discretion.
Steer,         Inc.          v.       Department                  of    Revenue              (1990),            245 Mont.                 470,        475,

803 P.2d            601,          604.

          Several                 previous                cases           have          served             to        clarify               the        term
"prevailing                  party."                E.C.A.         Environ.             Management                v.     Toenyes                 (1984),

208 Mont.              336,            345,         679 P.2d             213,         217-218,             states           that          l'[n]o       one

factor        should              be considered                    in determining                    the        prevailing                 party       for
the      purpose             of       attorney             fees.              The party              that         is     awarded              a money
judgment               in         a     lawsuit              is         not      necessarily                     the           successful                  or
prevailing                  party."                 In    the          present          case,          even          though              petitioner
received           a "money               judgment",                   she is          not     necessarily                    the        prevailing

party.

           In Lauderdale                       v.    Grauman             (1986),             223 Mont.               357,          359,     725 P.2d
1199,        1200,           we stated,                   "[Tlhere              are      cases         where,            at        the      close          of

all      litigation,                   there         is    no actual                  'prevailing                party.'                  [Tlhere          is
no prevailing                         party         where          both         parties             gain         a victory                 but        also
suffer         a loss."                   In        the    present              case,         the         District             Court          did      not

abuse        its       discretion                    in    concluding                  that      there            was         no "prevailing

party"             and         that             each         party              shall          pay           his/her                 own          costs.
AFFIRMED.




We Concur:
