No. 86-169 

IN THE SUPREME COURT OF THE STATE OF MONTANA 

1987 

IN RE THE MARRIAGE OF 

GARELD E. COX, 

Petitioner and Respondent, 

and 

PENNY E. COX, 

Respondent and Appellant. 

APPEAL FROM: District Court of the Tenth Judicial District, 

In and for the County of Fergus, 

The Honorable Chan Ettien, Judge presiding. 

COUNSEL OF RECORD: 

For Appellant: 

Richard J. Carstensen, Billings, Montana 

For Respondent: 

Torger Oaas, Lewistown, Montana 

Submitted on Briefs: Jan. 22, 1987 

Decided: March 24, 1987' 
Mr. Justice Fred J. Weber delivered the Opinion of the Court. 

Penny Cox appeals from orders of the District Court of 

the Tenth Judicial District, Fergus County, raising jurisdiction and custody modification issues arising out of the 

marriage dissolution and child custody hearing below. We 

affirm. 

The issues are: 

1. Was wife's notice of appeal filed too late to have 

this Court review the jurisdiction issues raised? 

2. Did the District Court err in its jurisdiction 

rulings? 

3. Did the District Court err in denying wife a modification hearing? 

Gareld E. Cox (husband) and Penny E. Cox (wife) were 

married in 1978 and had one child named Kenneth Cox (Kenneth) 

of that marriage. In January 1982, husband and wife filed 

separate dissolution petitions with the District Court. The 

petitions were consolidated in the case below. In April 

1982, wife also filed a petition for divorce and an affidavit 

for the purpose of service by publication in a New Mexico 

court, neither of which mentioned the pending Montana case. 

In July 1982, the New Mexico court purported to dissolve the 

parties' marriage and grant custody of Kenneth to wife. 

Husband was not present or represented at that hearing. In 

June 1983, the Montana District Court dissolved the marriage 

between the parties and awarded custody of Kenneth to husband. Both parties were represented at that hearing, although wife was not present. 

In December 1984, the New Mexico court concluded that 

wife's af fidavit for service by publication had been false 

and misleading, that wife had not exercised sufficient inquiry in attempting to locate husband, that the New Mexico 
proceedings should have been stayed due to the pending Montana proceeding, that the New Mexico court had not obtained 

jurisdiction over husband prior to the entering of its decree, and that the New Mexico court was without authority to 

enter its decree. The New Mexico court then set aside its 

decree with directions to have Kenneth delivered to husband 

pursuant to the Montana decree. 

Wife moved to vacate the Montana District Court's findings, conclusions, and decree, essentially challenging jurisdiction of the District Court under SS 40-4-104 and 40-4-211, 

MCA, and requesting a child custody modification. The District Court denied wife's motion on all grounds in two orders 

filed in March and July of 1985. In September 1985, the 

District Court issued a subsequent order reaffirming its 

earlier orders. In December 1985, wife again filed a motion 

in the District Court challenging jurisdiction of the District Court and requesting a modification of the custody 

order. In a March 1986 minute entry, the District Court 

concluded that it would not take testimony on the modification or custody issues because those issues had already been 

decided. However, the court stated it would hear testimony 

regarding visitation. It is from this order that wife 

appeals. 

I 

Was wife's notice of appeal filed too late to have this 

Court review the jurisdiction issues raised? 

Husband maintains that wife filed her notice of appeal 

after the 30 day time limit for appeals found in Rule 5, 

M.R.App.Civ.P. Specifically, husband maintains that wife's 

jurisdiction challenges were denied by a District Court order 

on July 12, 1985 and her notice of appeal was filed on April 

10, 1986. Thus, the 30 day time limit had passed and her 

jurisdiction issues on appeal should be dismissed. 
Although the District Court decided the jurisdiction 

issues in its July 1985 order, wife again raised this issue 

in her motion of December 11, 1985. It is a well settled 

principle of law that lack of subject matter jurisdiction may 

be raised at any time. Rule 12(h) (3), M.R.Civ.P., and Corban 

v. Corban (1972), 161 Mont. 93, 504 P.2d 985. Therefore, the 

wife had 30 days from the March 10, 1986, effective dismissal 

of her subject matter jurisdiction motion to perfect her 

appeal. Her notice of appeal was filed on time and thus we 

will review the jurisdiction issues raised. 

Did the District Court err in its jurisdiction rulings? 

Wife maintains there were two jurisdictional rulings 

made in error in this case. First, wife argues that the 

court did not have jurisdiction over the dissolution proceeding pursuant to 5 40-4-104(a), MCA. Second, wife argues that 

the court did not have jurisdiction over Kenneth pursuant to 

§ 40-4-211, MCA. 

On the first issue, wife maintains that husband was not 

a resident of Montana when he filed for dissolution and that 

fraud was committed on the court by the husband when he filed 

his petition for dissolution and stated: 

That petitioner has been a resident of the State of 

Montana for more than 120 days next proceeding the 

filing of this petition, however, he has not been 

physically present in this State for that period of 

time . 

Wife maintains that this statement is false due to the amount 

of time husband had been in New Mexico prior to the filing of 

the petition. Apparently, husband had spent about a month 

and a half in New Mexico during this 120 day period. 

We point out that 5 40-4-104(a), MCA, only requires the 

court to find one of the parties was domiciled within Montana 
"for 90 days next preceding - the making -- of the findings" 

(emphasis added). Both sides agree that husband was domiciled in Montana for 90 days preceding the dissolution order 

and findings. Therefore, the District Court concluded that 

it had jurisdiction over the dissolution pursuant to 

§ 40-4-104 (a) , MCA. We affirm that conclusion. There is no 

evidence of fraud upon the court. 

On the second issue, wife argues that the District Court 

did not have jurisdiction over Kenneth pursuant to 

S 40-4-211 (1) (a) (ii) , MCA, which provides in pertinent part: 

A court of this state competent to decide child 

custody matters has jurisdiction to make a child 

custody determination by initial or modification 

decree if: 

(a) this state: . . . (ii) had been the child's home state within 6 

months before commencement of the proceeding and 

the child is absent from this state because of his 

removal or retention by a person claiming his 

custody or for other reason and a parent or person 

acting as parent continues to live in this state; 

Wife argues that under this statute New Mexico was the 

proper forum to decide Kenneth's custody. However, the 

record shows that the conditions found in § 40-4-211, MCA, 

have been met and that the District Court properly had jurisdiction over the child custody proceeding. After having 

lived in Montana for several years, wife and Kenneth went to 

New Mexico on August 27, 1981. Husband filed for the dissolution of the marriage, asking for the custody of Kenneth, on 

January 27, 1982. Thus, Montana was Kenneth's "home state 

within 6 months before commencement of the proceedings." 

Section 40-4-211, MCA. Second, there is no question that 

Kenneth was absent from the state because of his retention by 

wife who was claiming his custody. Therefore, the 
requirements found in S 40-4-211, MCA, have been satisfied 

and the court had jurisdiction over the child custody proceeding pursuant to that statute. 

Finally, wife asserts that jurisdiction should be declined pursuant to S 40-7-109(1), MCA, which provides: 

If the petitioner for an initial decree has wrongfully taken the child from another state or has 

engaged in similar reprehensible conduct, the court 

may decline to exercise jurisdiction if this is 

just and proper under the circumstances. 

Wife alleges that husband wrongfully took Kenneth from New 

Mexico and brought him to Montana. The record does not 

demonstrate a wrongful taking. The actions of the father 

taking Kenneth to Montana from New Mexico do not in and of 

themselves demonstrate a wrongful taking. Section 40-7-109, 

MCA, is discretionary. The District Court concluded there 

was not a wrongful taking and assumed jurisdiction. We 

cannot find an abuse of its discretionary power by the District Court. Accordingly, we affirm the District Court's 

conclusion that it had jurisdiction over the child custody 

proceeding. 

111 

Did the District Court err in denying wife a modification hearing? 

Wife argues she is entitled to another hearing to consider whether the custody decree should be modified pursuant 

to S 40-4-219(1), MCA, which provides: 

The court may in its discretion modify a prior 

custody decree if it finds, upon the basis of facts 

that have arisen since the prior decree or that 

were unknown to the court at the time of entry of 

the prior decree, that a change has occurred in the 

circumstances of the child or his custodian and 

that the modification is necessary to serve the 
best interest of the child and if it further finds 

that : 

(a) the custodian agrees to the modification; 

(b) the child has been integrated into the 

family of the petitioner with consent of the 

custodian; 

(c) the child's present environment endangers 

seriously his physical, mental, moral, or emotional 

health and the harm likely to be caused by a change 

of environment is outweighed by its advantages to 

him; or 

(dl the child is 14 years of age or older and 

desires the modification. 

Wife recognizes that the modification is discretionary with 

the District Court, but believes new facts have been presented that show Kenneth's "present environment endangers seriously his physical, mental, moral or emotional health." 

Although wife was represented by counsel in the dissolution 

hearing on June 20, 1983, wife was not present and no evidence was presented from her viewpoint as to the best interests of Kenneth. Wife maintains that various affidavits 

filed by her in 1985 and 1986 provide the necessary factual 

basis for the court to hold a hearing on the modification of 

custody. In particular she refers to a child psychologist's 

report. 

Section 40-4-220, MCA, provides that the court "shall 

deny the motion unless it finds adequate cause for hearing 

the motion is established by the affidavits . . . " The 

affidavits provided by wife essentially state that Kenneth 

has been moved about a number of times by his father, that he 

has had his school interrupted, and that he has spent extended periods of time with his grandmother. The husband countered with affidavits which indicate Kenneth is presently 

living in a healthy environment and is a "cheerful" child. 

The psychologist's report does not recommend a custody arrangement, but does clearly show that the custody litigation 
over Kenneth is having an adverse affect on him. We note the 

concerns of the psychologist with regard to Kenneth ' s hyperactivity and his recommendation that Kenneth be reexamined at 

the Child Study Center. For their assistance, we call this 

to the attention of both parties. 

After careful consideration, we conclude the District 

Court has not abused its discretion in denying the motion for 

a modification hearing. / 

Affirmed. 

We Concur: 

Justices 
IN THE SUPREME COURT OF THE STATE OF 

No. 86-169 

' ', +,; 2 'j.297 

IN RE THE MARRIAGE OF 

GARELD E. COX* 

petitioner and Respondent, 

1 

and 1 ORDER 

PENNY E. COX, 

Respondent and Appellant. 

P,znny E. Cox, respo~dent and appellant, has petitioned 

for rehearing in this matter. After careful consideration of 

each argument made, we conclude that our opinion dated March 

-7.1, 1987, should be amended by changing the first paragraph 

after the issues were stated. on page 1 of the opinion to 

- 

read: 

Gareld E. Cox (husband) and Penny E. Cox 

(wife) were married in 1978 and had one child named 

Kenneth Cox (Kenneth) of that marriage. In January 

1982, husband filed a dissolution petition with the 

District Court and wife filed a petition for custody of minor child with the District Court. The 

petitions were consolidated in the case below. In 

April 1982, wife also*- filed a petition for divorce 

and an affidavit for the purpose of service by 

publication in a New Mexico court, neither of which 

mentioned the pending Montana case. In July 1982, 

the New Mexico court purported to dissolve the 

parties' marriage and grant custody of Kenneth to 

wife. Husband was not present or represented at 

that hearing. In June 1983, the Montana District 

Court dissolved the rriarrjage between the parties 

and awarded custody of Kenneth to husband. Both 

parties were represented at that hearing, although 

wife was not present. 

In all other respecB the petition for rehearing is denied. 

DATED this day of May, 1987. 

Cl 

'--\ 

Chief Justice 

i t