MARRIAGE OF BOLTON
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No. 84-83 I N THE SUPREME COURT O F THE S T A T E O F MONTANA I N RE THE MARRIAGE O F J E F F F E Y LAWRENCE BOLTON, P e t i t i o n e r and R e s p o n d e n t , and KATHLEEN E D I T H BOLTON, R e s p o n d e n t and A p p e l l a n t . A P P E A L FROM: T h e D i s t r i c t C o u r t of t h e E i g h t e e n t h J u d i c i a l D i s t r i c t , I n and f o r t h e C o u n t y of G a l l a t i n , T h e H o n o r a b l e T h o m a s O l s o n , Judge p r e s i d i n g . COUNSEL O F RECORD: For Appellant: Scully, L i l l y & Andriolo; M i c h a e l J. L i l l y , Bozeman, Montana F o r Respondent: W e l l c o m e & F r o s t ; A l b e r t A. Frost, Bozeman, Montana - S u b m i t t e d on B r i e f s : Decided: Filed: 8 &fu, C g " ! . ! . .. .. g Clerk May 31, 1984 August 30, 1984 Mr. J u s t i c e L . Court. Gulbrandson d e l i v e r e d t h e Opinion of C. the K a t h l e e n B o l t o n a p p e a l s f r o m a n o r d e r of t h e D i s t r i c t C o u r t g r a n t i n g a p e t i t i o n f o r m o d i f i c a t i o n of c u s t o d y of h e r minor daughter. W e affirm the decision of the District Court. The Bolton marriage was of Kathleen dissolved by a Solton E. decree issued and Jeffrey the by Fourth J u d i c i a l D i s t r i c t , C o u n t y o f M i s s o u l a , on O c t o b e r 3 0 , C u s t o d y of the parties' minor was g r a n t e d t o t h e m o t h e r . child, L. 1979. J a i m e Brooke B o l t o n , The decree provided the father r e a s o n a b l e v i s i t a t i o n w i t h t h e c h i l d , i n c l u d i n g o n e month i n t h e summer and t h e C h r i s t m a s h o l i d a y s . Following t h e d i s s o l u t i o n of t h e m a r r i a g e , and J a i m e moved t o S a n t a B a r b a r a , C a l i f o r n i a . 26, 1981, by a g r e e m e n t of the parties, t h e mother On December J a i m e was s e n t t o l i v e w i t h h e r f a t h e r i n M i s s o u l a , Montana f o r t h e b a l a n c e o f her kindergarten school year. T h i s arrangement a r o s e due t o an unexpected d e a t h i n t h e m o t h e r ' s f a m i l y i n Santa Barbara. During t h e c h i l d ' s r e s i d e n c e w i t h t h e f a t h e r f r o m December 26, 1981 u n t i l J u l y 4 , 1982, Jaime a t t e n d e d kindergarten i n Missoula. She neighbor, Rose daughters. also became Reed, Mrs. and acquainted with Mrs. the Reed's father's two young Reed b a b y s a t f o r J a i m e when t h e f a t h e r ' s work s c h e d u l e r e q u i r e d him t o be away. returned with t o her mother A s a g r e e d , J a i m e was i n Santa Barbara e a r l y i n J u l y of 1982. On December 2 7 , 1 9 8 2 , J a i m e was a g a i n s e n t t o Montana to l i v e with Gateway, her Montana. father The who had parties transferred agreed that t o Gallatin Jaime could complete Gateway the latter Public half School. of first grade According to at the the Gallatin agreement Jaime would be r e t u r n e d t o t h e m o t h e r ' s c u s t o d y a t t h e end o f 1982-83 school year. During g r a d e i n G a l l a t i n Gateway, in both her social and time the she attended J a i m e showed marked academic the first improvement development. She also became q u i t e a t t a c h e d t o Mrs. Reed, a s w e l l a s c l o s e f r i e n d s w i t h Mrs. Reed's daughters, a l l of whom by t h e n l i v e d w i t h I n J u l y of 1983 t h e f a t h e r t h e f a t h e r i n G a l l a t i n Gateway. m a r r i e d Rose Reed. I n J u n e of 1983, t h e mother c o n t a c t e d t h e f a t h e r a b o u t Jaime's return and the father indicated he would return J a i m e a t t h e end o f t h e f i r s t w e e k o f J u l y , 1 9 8 3 . On J u n e 23, 1983, t h e f a t h e r f i l e d a p e t i t i o n i n t h e Eighteenth J u d i c i a l D i s t r i c t , G a l l a t i n County, modify t h e o r i g i n a l custody d e c r e e . t h e D i s t r i c t Court granted the minor child. Montana, to Based on t h e p e t i t i o n , t h e f a t h e r temporary custody of Custody was restored to the mother f o l l o w i n g a show c a u s e h e a r i n g on A u g u s t 5 , 1 9 8 3 . Following a decree hearing August 25, November 8 , on the 1983, petition to c u s t o d y was modify the returned prior to the father. on On 1983, t h e D i s t r i c t Court i s s u e d its f i n d i n g s of f a c t , c o n c l u s i o n s o f l a w , and a n o r d e r g r a n t i n g t h e f a t h e r ' s p e t i t i o n f o r m o d i f i c a t i o n of t h e c u s t o d y d e c r e e . awarded permanent custody of Jaime l i b e r a l and r e a s o n a b l e r i g h t s of to the The o r d e r father, v i s i t a t i o n granted with to the mother. The m o t h e r raises two i s s u e s i n h e r a p p e a l from t h e D i s t r i c t Court o r d e r : ( 1 ) Did the District Court have subject matter jurisdiction to hear father's petition to modify the the prior custody decree? (2) Did the District Court err in concluding that the mother consented to the integration of the minor child into the home of the father? The mother's jurisdictional challenge is based upon section 40-4-211, MCA, which is incorporated into the Montana Uniform Child Custody Jurisdiction Act at section 40-7-104, MCA. The mother contends that under section 40-4-211, MCA the facts of this case required the District Court to forum. decline jurisdiction in favor of a California It is the father's position that section 40-4-211, MCA is not controlling, but that jurisdiction was conferred on the court under the common law doctrine of "continuing jurisdiction" in custody cases. In Wenz v. Schwartze (1979), 183 Mont. 166, 598 P.2d 1086, cert. denied 444 U.S. 1071, (1980), this Court defined the scope of district court jurisdiction to modify a prior custody decree with interstate interpreting the Uniform Child section 40-7-101, MCA, et. implications. In Custody Jurisdiction Act, seq., we stated, "The Act establishes a two-tiered jurisdictional test which a court must find satisfied before it makes even an initial custody decree. .. " Wenz, supra at 178, 598 P.2d at 1093. The first tier of the Wenz test mandates that one of the four disjunctive requirements of section 40-4-211, MCA be satisfied before a district court may take jurisdiction to make a child custody determination. Wenz, supra at 178-79, 598 P.2d at 1093. The second tier is found in section 40-7-108, MCA, which grants the trial court discretionary authority to "decline to exercise its jurisdiction" upon a determination that it is an "inconvenient forum" and another is state a "more appropriate that a court of forum." Further jurisdictional requirements arise when a decree of another state is already in force, which is not the case here. See Wenz, supra at 180-86, 598 P.2d at 1094-97. The father's reliance on the doctrine of "continuing jurisdiction" interstate as being custody the sole disputes enactment of the Uniform jurisdictional is misplaced. Marriage and test Since Divorce Act in the in Montana, the doctrine of continuing jurisdiction has been linked to section 40-4-219, MCA. Mont. 97, 100, 550 P.2d (1976), 171 Mont. Foss v. Leifer (1976), 170 1309, 1311; Erhardt v. 49, 50-51, 554 P.2d Erhardt 758, 759. Section 40-4-219, MCA merely limits the authority of district courts to modify prior custody decrees, the statute unless is the factual threshold demanded by first established. According to the Commissioners' Note, that statute is "designed to maximize finality (and thus assure continuity for the child) without jeopardizing the child's interest." 9A Uniform Laws Annotated 212 (master edition 1979) (hereinafter ULA). The function of section 40-4-211, MCA, on the other hand, is to actually confer subject matter jurisdiction upon a district court to hear custody matters with implications. section As 40-4-211, interstate the Commissioners explicitly MCA "governs jurisdiction to initial decree as well as a modification decree." (masters edition 1979). state, make an 9 ULA 125 In those custody cases where a state other than Montana a has possible interest, MCA m u s t b e j u r i s d i c t i o n a l r e q u i r e m e n t s of s e c t i o n 40-4-211, met before a court may u n d e r s e c t i o n 40-4-219, assert "continuing the jurisdiction" T h i s p o s i t i o n is c o r r o b o r a t e d MCA. by t h e C o m m i s s i o n e r s t Note t o s e c t i o n 40-4-211, MCA: "The p r o v i s i o n s o f t h e [ U n i f o r m M a r r i a g e amd D i v o r c e ] A c t c o n c e r n i n g c u s t o d y adjudication are integrated with the p r o v i s i o n s of t h e Uniform C h i l d Custody J u r i s d i c t i o n Act The l a t t e r A c t deals with judicial jurisdiction to a d j u d i c a t e a c u s t o d y c a s e when more t h a n one s t a t e h a s an interest in the litigation. The U n i f o r m M a r r i a g e a n d D i v o r c e A c t g o v e r n s t h e s u b s t a n t i v e and procedural aspects of custody a d j u d i c a t i o n once t h e c o u r t has decided t h a t i t c a n and s h o u l d h e a r t h e c a s e o n t h e m e r i t s . " 9A ULA 1 9 4 ( m a s t e r e d i t i o n 1979 ) . . . . We find that section jurisdictional hurdle district may court 40-4-211, which modify must a MCA be child is the overcome custody premier before decree a with interstate implications. In test the instant established Jurisdiction was s e c t i o n s 40-4-211 Of the jurisdiction, in case, the Wenz conferred has on and 40-7-108, several two-tiered the fully District satisfied. Court under MCA. alternative subsection been jurisdictional bases 40-4-211(1)(b) for is conferring the pertinent t o t h i s matter: " ( 1 ) A c o u r t of t h i s s t a t e competent t o decide child custody matters has j u r i s d i c t i o n t o make a c h i l d c u s t o d y d e t e r m i n a t i o n by i n i t a l o r m o d i f i c a t i o n decree i f : " ( b ) i t is i n t h e b e s t i n t e r e s t o f t h e c h i l d t h a t a c o u r t o f t h i s s t a t e assume j u r i s d i c t i o n because: most "(i) the child and his parents or the child and at least one contestant have a significant connection with this state; and "(ii) there is available in this state substantial evidence concerning the child's present or future care, protection, training, and personal " relationships ... The parties agree that the father had a significant connection with Montana. However, appellant argues that Jaime lacked a significant connection with Montana due to the fact that she had spent all of her time from the date of her parents' divorce in October of 1979 through December of 1981 with her mother in California. We note that section MCA 40-4-211(1)(b), does not require that the child's only significant connection be with Montana in order jurisdiction. for The a district statute court to assume - significant a requires connection. Here, the affidavit filed by the father provided the district court significant with ample connection with evidence Montana. that Jaime had At the time a the petition was filed on June 23, 1983, Jaime had spent over twelve months out of the previous eighteen with her father From December of 1981 through July 4, 1982, in Montana. Jaime resided with her kindergarten there. father in Missoula and attended From December of 1982 to the time the petition was filed, she resided with her father in Gallatin Gateway, Montana and attended first grade there. The father's affidavit indicates that Jaime had adjusted well to her school favorable in Gallatin progress Gateway, both and that academically she had and made socially. Furthermore, the father's affidavit states that Jamie had clearly expressed her desire to remain in school at Gallatin Gateway, as well as her desire to remain with the father's new family there. Jaime's preference in this regard was conclusively established at the August 5, 1983 hearing on the modification petition. Similarly, there was evidence concerning the before the court "substantial child's present or future care, protection, training and personal relationships." The record clearly indicated that during her visits to Montana Jaime developed strong familial bonds to the father's current family: Jaime's former babysitter and her two daughters. Evidence of a majority of Jaime's educational experience was located in Montana. Evidence relationships with her peers largely existed of her in Montana. Evidence of her care, treatment and home life in general for twelve of the eighteen months preceding the filing of the petition was available only in Montana. The mother objects that there was no evidence Jaime's environment in California present in Montana. of While this is a fact that a trial court must carefully consider in assuming jurisdiction, the statute requires only that substantial evidence exist in the state taking jurisdiction. The record clearly indicates that sufficient evidence of Jaime's present and future care, protection, training and personal relationships existed in Montana at the date of the petition to satisfy the "substantial evidence" requirement of section 40-4-211(1)(b), MCA. The second jurisdictional test required by Wenz demands that a court which has satisfied the prerequisites of section 40-4-211, MCR, then determine whether jurisdiction s h o u l d be e x e r c i s e d . S e c t i o n 40-7-108 states part that: " ( 1 ) A c o u r t which h a s j u r i s d i c t i o n under t h i s c h a p t e r t o make a n i n i t i a l o r m o d i f i c a t i o n d e c r e e may d e c l i n e t o e x e r c i s e i t s j u r i s d i c t i o n any t i m e b e f o r e making a d e c r e e i f i t f i n d s t h a t i t i s a n i n c o n v e n i e n t f o r u m t o make 3 c u s t o d y d e t e r m i n a t i o n under t h e c i r c u m s t a n c e s of t h e c a s e and t h a t a c o u r t o f a n o t h e r s t a t e i s a more a p p r o p r i a t e f o r u m . " C r i t e r i a f o r d e t e r m i n i n g w h e t h e r a c o u r t would c o n s t i t u t e a n i n c o n v e n i e n t forum is p r o v i d e d i n s u b s e c t i o n ( 3 ) o f s e c t i o n 40-7-108, However, MCA. the decision to decline j u r i s d i c t i o n is e n t i r e l y w i t h i n t h e d i s c r e t i o n o f t h e t r i a l Wenz, s u p r a a t 1 8 0 , 598 P.2d a t 1 0 9 4 . court. We f i n d no a b u s e of the t r i a l court's discretion in assuming j u r i s d i c t i o n t o h e a r t h i s c a s e . The s e c o n d i s s u e i s w h e t h e r t h e D i s t r i c t C o u r t e r r e d in ruling t h a t t h e mother the into child the home s t a t u t e is s e c t i o n 40-4-219 consented t o t h e i n t e g r a t i o n of of the father. The controlling (1) b ) , MCA: ( " ( 1 ) The c o u r t may i n i t s d i s c r e t i o n modify a p r i o r custody d e c r e e i f i t f i n d s , upon t h e b a s i s o f f a c t s t h a t h a v e arisen since the prior decree or t h a t w e r e unknown t o t h e c o u r t a t t h e t i m e o f e n t r y of t h e p r i o r d e c r e e , t h a t a c h a n g e h a s o c c u r r e d i n t h e c i r c u m s t a n c e s of t h e c h i l d o r h i s c u s t o d i a n and t h a t t h e m o d i f i c a t i o n is n e c e s s a r y t o s e r v e t h e b e s t i n t e r e s t o f t h e c h i l d and i f i t further finds that: " ( b ) The c h i l d h a s b e e n i n t e g r a t e d i n t o t h e f a m i l y of t h e p e t i t i o n e r w i t h c o n s e n t of t h e c u s t o d i a n . " The m o t h e r argues t h a t the District Court e r r e d in f a i l i n g t o f i n d a n e x p r e s s i n t e n t on h e r p a r t t o c o n s e n t t o t h e i n t e g r a t i o n of t h e c h i l d i n t o t h e f a t h e r ' s family. We disagree. The rationale for the consent requirement in the Uniform Act was to avoid non-custodial kidnapping. 9A ULA 212, Commissioners' Note (master edition 1979). We are persuaded by the opinion of the Appellate Court of Illinois in In Re Custody of Burnett (1979), 394 N.E.2d 58, 60, that: "[Tlhe consent requirement [in the Uniform Act] is intended to ensure that the custodian acquiesced in the transfer of physical custody (e.g. to discourage non-custodial kidnapping), and the integration into the family of the petitioner, and should be viewed in that narrow context. The consent requirement is satisfied where as in this case the custodian had placed the child with the non-custodial parent and willingly permitted the child to become integrated in the new family." The Burnett decision properly focuses on the elimination of a motive for noncustodial kidnapping as the heart of the consent requirement. We find that where, as here, there is a voluntary transfer of the child's physical custody from the custodial to the non-custodial parent, which results in the child's integration consent into the non-custodial parent's requirement of section 4Q-4-219(b) family, the is satisfied. Consent of the custodial parent to the child's integration may be implied from the voluntary transfer of physical custody. While the mother contends that the record does not support the court's conclusion regarding the consent requirement, the standard of review employed by this Court requires only that the findings and conclusions of the trial court be supported by substantial credible evidence. Marriage of Pickering (Mont. 1984), 678 P.2d In Re 1146, 41 "This Court w i l l not s u b s t i t u t e its judgment f o r t h a t of t h e t r i e r o f f a c t . W e w i l l c o n s i d e r o n l y whether s u b s t a n t i a l c r e d i b l e evidence supports t h e findings and c o n c l u s i o n s . Findings w i l l n o t be overturned unless there is a c l e a r p r e p o n d e r a n c e o f e v i d e n c e a g a i n s t them, r e c o g n i z i n g t h a t e v i d e n c e may b e weak o r conflicting, yet still support the findings." J e n s e n v. J e n s e n (Mont. 1 9 8 1 ) , 629 P.2d 7 6 5 , 7 6 8 , 3 8 S t . R e p . 9 2 7 , 938. The record contains substantial evidence of the m o t h e r ' s a c q u i e s c e n c e t o b o t h o f J a i m e ' s t r a n s f e r s from h e r home i n C a l i f o r n i a t o t h e f a t h e r ' s home i n Montana. first occasion, the mother sent Jaime to live On t h e with her f a t h e r i n Missoula s o t h a t Jaime could avoid t h e atmosphere of g r i e f i n t h e m o t h e r ' s home f o l l o w i n g a n u n e x p e c t e d f a m i l y death. J a i m e f i n i s h e d k i n d e r g r a r t e n i n M i s s o u l a and became aquainted w i t h Rose Reed h e r two young d a u g h t e r s . Jaime returned to (Jaime's California, interrupting and A f t e r a s i x month s t a y i n Montana, L e s s t h a n s i x months l a t e r , Montana, f u t u r e step-mother) as agreed by the parties. t h e mother a g a i n s e n t Jaime t o her first grade year in school. Again, t h e r e c o r d r e v e a l s t h a t t h e mother w i l l i n g l y conceded to this transfer attending school in custody. The m o t h e r i n Montana. S h e was knew J a i m e was a l s o aware of the f a t h e r ' s new d o m e s t i c s i t u a t i o n and J a i m e ' s r e a c t i o n t o i t . The D i s t r i c t into the having father's period education. child would t o Montana involving The circumstances, found that new f a m i l y a s a s e n t Jaime formative Court the become court her of was r e s u l t of the first also appellant part for Jaime better two found should the mother's part years that have petitioner's integrated of the that and the formal under known family of the home. The findings of the District s u b s t a n t i a l c r e d i b l e evidence. Court are The o r d e r of /' ' , J Justice /I , by the District H -/ . ,' 4 C o u r t is a f f i r m e d . W e concur: silpported
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