In Re the Marriage of Boyer , 50 State Rptr. 1277 ( 1993 )

No. 92-541 and 92-542
IN THE SUPREME COURT OF THE STATE OF MONTANA
1993
IN RE THE MARRIAGE OF
GAIL L. BOYER,
Petitioner and Appellant,
and
TIiOMAS N. BOYER,
Respondent and Respondent.
and
IN RE THE MARRIAGE OF
STANLEY SCOTT OVERMAN,
Co-Petitioner and Appellant,
and
KARLEEN GRANER OVERMAN,
Co-Petitioner and Respondent.
APPEAL FROM: District Court of the Eighth.Judicia1 District,
In and for the County of Cascade,
The Honorable Joel G. Roth, Judge presiding.
COUNSEL OF RECORD:
For Appellants:
Mark Bauer, Attorney at Law, Great Falls, Montana
For Respondents:
Daniel L. Falcon, Matteucci, Falcon,
Squires & Lester, Great Falls, Montana
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Submitted on Briefs: April 30, 1993
Decided: October 21, 1993
Filed:
Justice Terry N. Trieweiler delivered the opinion of the Court.
Gail Boyer, petitioner in Cascade County Cause No. CDR 87-264,
and Stanley Overman, petitioner in Cascade County Cause
NO, CDR 87-455, moved the District Court for the Eighth Judicial
District in Cascade County to modify visitation in their respective
dissolution proceedings. The motions were first consolidated and
then denied by the District Court. Petitioners appeal the denial
of their motions. We affirm the District Court.
There are three issues on appeal.
1. Did the District Court abuse its discretion when it
denied appellants' request to modify the existing visitation plans?
2. Did the District Court err when it adopted respondents'
proposed findings of fact, conclusions of law, and order?
3. Did the District Court err when it awarded attorney fees
to respondents?
Gail Boyer and Thomas Boyer were married on August 7, 1 9 8 1 .
They had two children together during their marriage. Their
marriage was dissolved on April 20, 1 9 8 8 . In the final dissolution
decree, the District Court granted joint custody of the Boyer
children to Gail and Tom. Gail was awarded primary physical
custody and Tom was allowed reasonable visitation at the times
specified in the parties' separation agreement.
According to the District Court order, Tom's visitation with
his children included six weeks in the summer, alternating
weekends, and alternating legal holidays. During Tom's summer
visitation, Gail was allowed to visit with the children on two
weekends.
Karleen Overman and Stanley Overman were married on
September 19, 1982. Karleen and Stanley also had two children
during their marriage. Their marriage was dissolved on
September 16, 1987. In the final dissolution decree, the District
Court awarded joint custody of the Overman children to Karleen and
Stanley, gave Karleen primary physical custody, and allowed Stanley
reasonable visitation. Pursuant to the District Court order,
Stanley's visitation included, but was not limited to, alternating
weekends of each month, alternating Christmas and Thanksgiving
holidays, and one month per summer (if both Karleen and Stanley
reside within the same state) or the entire summer (if Stanley
resides within a separate state or is stationed overseas).
After entry of the final dissolution decrees in each case,
Gail Boyer, now known as Gail Overman, married Stanley Overman.
Karleen Overman, now known as Karleen Boyer, married Tom Boyer.
Pursuant to the dissolution decrees in each case, the Boyer
children and the Overman children began residing with their mothers
during the week and visited with their fathers at the times
specified in the respective District Court orders. Eventually, the
parties worked out an arrangement whereby the four children would
spend the weekends together: one weekend the Overman children would
go to the Boyer home, and the next weekend all four children would
go back to the Overman home.
On May 8, 1992, five years after the existing visitation plans
had been implemented, Stanley and Gail each filed a motion and a
plan to modify visitation between the children of each family and
their fathers to provide similar and equal visitation. In
supporting affidavits, Stanley and Gail contended that the
variations in the fathers* visitation schedules were causing
problems with the Overman children. Specifically, Stanley and Gail
were concerned about the different summer visitation schedules.
They asserted that the Overman children could not understand why
they were not allowed to see their father as much as the Boyer
children were allowed to see theirs.
The District Court heard arguments on the motions to modify
visitation in both cases at a consolidated hearing on July 7, 1992.
At the hearing, Stanley and Gail proposed a modified three-year
visitation plan that differed from the plan that they suggested
when they filed their motion. Stanley testified that the primary
purpose behind the proposed plan was to equalize the amount of time
the children visited with their fathers, and to allow Stanley to
have time with his children independent from the Boyer children.
The proposed plan provided that each father would have four
weeks of summer visitation. At the hearing, Stanley admitted that
the proposed plan would reduce the six weeks of visitation time
that Tom was entitled to under his existing visitation schedule.
Tom and Karleen did not oppose equal visitation but objected to the
proposed plan because it required Tom to relinquish visitation
time.
Tom and Karleen testified that it would not be in the
children's best interests to modify the existing visitation plans.
They asserted that the current schedules, which had been in effect
for five years, worked well because they were stable plans and they
were understandable to the children. Tom and Karleen testified,
and Stanley and Gail conceded, that the parties have accommodated
in the past each other's requests to alter the existing summer
visitation schedules to meet their respective needs.
After the hearing, the District Court denied Stanley and
Gail's motion to modify visitation. The court adopted verbatim Tom
and Karleen's proposed findings of fact, conclusions of law, and
order, and made the findings and conclusions applicable to both
cases.
In its order, the court found that Stanley and Gail failed to
demonstrate that modification of the existing visitation plans was
in the children's best interests. The court found that adoption of
the proposed visitation schedule would require Tom to relinquish
time with his children, and that this would be detrimental to Tom's
children. The court also found that Tom and Karleen had
accommodated Gail and Stanley's requests to alter the visitation
plans in the past and a new visitation schedule would not make the
parties cooperate any more with one another than they have in the
past. The court determined that the visitation plans in existence
were workable and reasonable, even though there were minor
differences.
Finally, the court awarded attorney fees to Tom and Karleen
for successfully responding to the motions for modification. The
court based its decision upon a clause in Tom and Gail's separation
agreement. The court also indicated that it had the power to award
attorney fees pursuant to S S 40-4-110 and 37-61-421, MCA,
ail and Stanley filed a motion to reconsider the visitation
issue. When the District Court failed to rule on their motion,
Stanley and Gail filed a notice of appeal in both cases.
I
Did the District Court abuse its discretion when it denied
appellants' request to modify the existing visitation plans?
On appeal, Stanley and Gail (appellants) assert that the
District Court abused its discretion when it denied their motion to
modify and equalize the visitation schedules. They contend that it
is in the best interests of all four children involved to provide
a similar and equal visitation schedule between the fathers and
their children. Appellants assert that Tom and Karleen
(respondents) do not object to equalized visitation.
Respondents assert that the appellants' proposed visitation
plan is unacceptable for several reasons. First, they contend that
appellants' proposal would have forced Tom to give up time with his
children. Second, it would have altered a plan for upcoming
Christmas visitation that was previously agreed upon among the
parties. Third, it was more confusing than the existing plan, and
therefore, it would have been detrimental to the children.
Finally, it was not in the best interests of the children to alter
a stable plan that has worked well for five years.
The standard of review for custody and visitation is whether
substantial credible evidence supports the district court's
judgment. InreMarnmageojNaslz (1992), 254 Mont, 231, 234, 836 P.2d
598, 600. The findings will be sustained unless they are clearly
erroneous. In rehiammageof
Susetz (1990j, 242 Mont. 10, 13-14, 788 P.2d
332, 334. We will overturn a trial court's custody decision only
when there is a clear showing of an abuse of discretion. In re
hfarrkgeofRolfe (1985), 216 Mont. 39, 44, 699 P.2d 79, 82.
Section 40-4-217(3), MCA, provides that a court may modify a
visitation order "whenever modification would serve the best
interest of the child . . . ." Strongv. pveaver (l984), 211 Mont. 320,
683 p.2d 1330. in tnis case, tne District court determined that it
was not in the best interests of the children to modify the
existing visitation plans between the fathers and their children.
Our review of the record reveals that there is substantial
credible evidence to support the District Court's findings and
conclusions. The District Court established the visitation
schedules in the original decrees based on the children's best
interests. Appellants admitted at the hearing on their motion to
modify that their proposed plan to equalize visitation would
require Tom to relinquish summer visitation time that he has had
with his children for five years. The record reveals that
appellants failed to show how reducing Tom's time with his children
would serve the Boyer children's best interests. Accordingly, we
hold that the court did not abuse its discretion when it denied
appellants1 request to modify the existing visitation plans.
II
Did the District Court err when it adopted respondents1
proposed findings of fact, conclusions of law, and order?
Appellants assert that the District Court erred when it
adopted respondentst proposed findings, conclusions, and order
verbatim. They assert that the adopted findings and conclusions
are unsupported by the evidence.
A court's verbatim adoption ofthe prevailing party's proposed
findings, conclusions, and judgment is not prohibited. Wolfe v. Webb
(l992), 251 Mont. 217, 229, 824 P.2d 240, 247. It[W]e have approved
the verbatim adoption of findings and conclusions where they are
comprehensive and detailed and supported by the evidence." Wove,
824 P.2d at 247.
Upon review of the record in this case, and the trial court's
findings and conclusions, we hold that the District Court did not
err in adopting respondentst proposed findings, conclusions, and
order. The findings and conclusions are supported by the evidence.
I11
Did the District Court err when it awarded attorney fees to
respondents?
The separation agreement between Tom and Gail provided:
Should any action be commenced to enforce, modify or
interpret any provisions contained herein, the Court, as
a cost of suit, shall award a reasonable attorney fee to
the successful party.
We conclude that the attorney fee provision in Tom and Gail's
separation agreement is binding. The provision is clear that,
should any action be commenced to modify any provision in the
separation agreement, the prevailing party shall receive attorney
fees. Respondents are the successful parties in this case, and
therefore, they are entitled to attorney fees.
Both parties request attorney fees on appeal. This Court has
awarded attorney fees on appeal when the parties' separation
agreement provides for such. In re Marnkzge of BoLftad (1983), 203 Mont.
131, 660 P.2d 95. Pursuant to Tom and Gail's separation agreement,
the prevailing party is entitled to reasonable attorney fees.
Accordingly, since respondents are the successful parties in this
a
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to respond to this appeal.
We remand this case to the District Court to determine
reasonable costs and attorney fees incurred by respondents on
appeal.
The judgment of the District Court is affirmed.
We concur:
October 21, 1993
CERTIFICATE OF SERVICE
I hereby certify that the following order was sent by United States mail, prepaid, to the following
named:
Mark Bauer
Attorney at Law
P.O. Box 1423
Great Falls, MT 59401
Daniel L. Falcon
Matteucci, Falcon, Squires & Lester
P.O. Box 149
Great Falls, MT 59403-0149
ED SMITH
CLERK OF THE SUPREME COURT
STATE OF MONTANA