Marriage of McCurdy ( 1995 )

No. 94-55-i
IN THE SUPREME COURT OF THE STATE OF MONTANA
1995
IN RE THE MARRIAGE OF
ROBERT E. McCURDY,
Petitioner, Counter-
Respondent and Appellant,
and
CONTANA S. McCURDY, ta &gp;.;&
a&F?y OF SUPR&?/jE J&EIR'II
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Respondent, Counter-
Petitioner and Respondent.
APPEAL FROM: District Court of the Eighth Judicial District,
In and for the County of Cascade,
The Honorable John M. McCarvel, Judge presiding.
COUNSEL OF RECORD:
For Appellant:
K. Dale Schwanke, Jardine, Stephenson, Blewett
and Weaver, P.C., Great Falls, Montana
For Respondent:
M. Gene Allison, Law Offices of Joan Cook,
Great Falls, Montana
Submitted on Briefs: August 10, 1995
Decided: September 21; 1995
Filed:
Chief Justice J. A. Turnage 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 State Reporter Publishing Company and West Publishing
Company.
Robert McCurdy appeals the decision of the Eighth Judicial
District Court, Cascade County, awarding Robert and Contana McCurdy
joint custody of their preschool son and awarding Contana $2500 in
attorney fees. We affirm.
We find the following issues dispositive on appeal:
1. Did the District Court err in awarding the McCurdys joint
custody of Collin with Contana being the primary residential
custodian?
2. Did the District Court err in awarding Contana attorney
fees?
Robert and Contana were married on August 29, 1992. Their
son, Collin, had been born on January 2, 1992. After two years of
marriage, Contana took Collin and left Robert. Robert petitioned
the District Court for dissolution of their marriage on January 14,
1994. Robert received temporary custody of Collin following their
separation until April 12, 1994, at which time the court ordered
temporary joint custody to Robert and Contana.
On July 29, 1994, the District Court heard the respective
parties' arguments concerning their desire to have custody of
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Collin. Robert sought sole custody of Collin, while Contana sought
joint custody but wanted to be Collin's primary residential
custodian in order to maintain eligibility for subsidized housing.
Following trial, the court entered its findings of fact, conclu-
sions of law and order granting the parties joint custody with
Contana being the primary residential custodian. The court also
awarded Contana attorney fees. Robert appeals the decision of the
District Court.
Issue 1
Did the District Court err in awarding the McCurdys joint
custody of Collin with Contana being the primary residential
custodian?
Robert argues that the District Court's findings concerning
the "best interest" of Collin are insufficiently comprehensive to
provide a basis for a decision. In Re the Marriage of Nikolaisen
(199X), 257 Mont. 1, 847 P.Zd 287. Robert also argues that the
court's findings are clearly erroneous because they are not
supported by substantial credible evidence. In Re the Marriage of
Johnson (1994), 266 Mont. 158, 879 P.2d 689.
This Court has held that a district court need not make
specific findings addressing every "best interest" factor set forth
in § 40-4-212, MCA. In Re the Marriage of Arrotta (1990), 244
Mont. 508, 797 P.2d 940. This Court has also recognized the
statutory presumption found in 5 40-4-224, MCA, that joint custody
is generally in the child's best interest. In Re the Marriage of
Syljuberget (19881, 234 Mont. 178, 763 P.2d 323.
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After reviewing the record we conclude that the court's
findings of fact are sufficiently comprehensive and are supported
by substantial credible evidence.
Issue 2
Did the District Court err in awarding Contana attorney fees?
Attorney fees in a dissolution action are governed by § 40-4-
110, MCA, which states:
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 of this title and for attorney's fees . . .
We review an award of attorney fees to determine if the court
abused its discretion. In Re the Marriage of Brownell (1993), 263
Mont. 78, 865 P.2d 307.
After reviewing the record, we conclude that the District
Court sufficiently considered the financial resources of the
parties and that both parties were provided with sufficient notice
of the attorney fees issue. We conclude that the District Court
did not abuse its discretion in awarding Contana attorney fees.
AFFIRMED.
Chief Justice
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