Marriage of Berger

NO. 93-595
IN THE SUPREME COURT OF THE STATE OF MONTANA
1994
IN RE THE MARRIAGE OF
BARBARA L. BERGER,
Petitioner and Respondent,
and
DARRELL L. BERGER,
Respondent and Appellant.
APPEAL FROM: District Court of the Eighteenth Judicial District,
In and for the County of Gallatin,
The Honorable Frank M. Davis, Judge presiding.
COUNSEL OF RECORD:
For Appellant:
Darrell L. Berger, Pro Se, Bozeman, Montana
For Respondent:
Kent M. Kasting; Kommers, Kasting & Roth,
Bozeman, Montana
Submitted on Briefs: February 10, 1994
Decided: March 22, 1994
Filed:
Justice John Conway Harrison delivered the Opinion of the Court.
This is an appeal from an order of the Eighteenth Judicial
District Court, Gallatin County, denying appellant Darrell L.
Berger's (Darrell) motion to modify visitation and child support.
Barbara L. Bergerrs (Barbara) request for attorney's fees was also
denied. Darrell appeals. We affirm.
Darrell and Barbara divorced in April 1987. They have three
children: Matthew, 9; Jennifer; 12; and Jamie, 15. The court
awarded joint custody of the children, with Barbara as the primary
physical custodian. The record generated since the couple's
separation is substantial. For example, a full evidentiary hearing
was held on December 17, 1991, to address custody, visitation,
child support arrearage and contempt.
On August 24, 1993, Darrell filed a "Motion to Modify
Visitation and Child Support," which was essentially an effort to
modify custody. Darrell requested joint custody with equally
shared time and complete elimination of his child support
obligation. However, these issues had been settled in prior
litigation. In the motion, unaccompanied by affidavits, Darrell
claimed that the children would like to spend equal time with both
parents and Jamie would like to choose the parent with whom she
wished to reside--namely Darrell.
Barbara moved to dismiss Darrell's motion on the grounds that
it failed to allege any material change in circumstances which
would warrant a custody modification. She also sought attorney's
fees.
On October 5, 1993, the District Court denied Darrell's
motion, finding that it was insufficient under the modification
criteria set forth in 5 40-4-219, MCA. The court denied Barbara's
request for attorney's fees, noting that if Darrell had not brought
the motion pro se and in good faith, then an award of attorney's
fees to Barbara might have been justified. Darrell appeals. We
affirm.
The sole issue before this Court is whether the District Court
erred by denying Darrell's motion to modify visitation and child
support.
In his motion of August 24, 1993, Darrell attempted to modify
primary physical custody of Jamie. Because Darrell failed to
present any affidavits setting forth facts in support of his
request, as required by 9 40-4-220, MCA, his motion was correctly
denied.
We need not address the District Court's denial of Barbara's
request for attorney's fees because Barbara did not file a cross-
appeal. Accordingly, we are without jurisdiction to rule on the
merits of this issue. See Rule 14, M.R.App.P. ; see also Mydlarz v.
Palmer/Duncan Const. Co. (1984), 209 Mont. 325, 334, 682 P.zd 695,
700 (citations omitted).
Af finned.
Pursuant to Section I, Paragraph 3(c), Montana Supreme Court
1988 Internal Operating Rules, this decision shall not be cited as
precedent and shall be published by its filing as a public document
w i t h t h e C l e r k of t h e Supreme Court and by a r e p o r t of i t s r e s u l t
t o Montana Law Week, S t a t e R e p o r t e r and W e s t Publishing Company.
W concur:
e /-