No. 86-169

IN THE SUPREME COURT OF THE STATE OF MONTANA
1987

IN RE THEMARRIAGE OF GARELD E. COX, Petitioner and Respondent, and

PENNY E. COX,Respondent and Appellant.

APPEAL FROM: District Court of the Tenth JudicialDistrict, Inand for the County of Fergus, TheHonorable Chan Ettien, Judgepresiding.
COUNSEL OF RECORD:
ForAppellant: 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 JudicialDistrict,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 DistrictCourt err in denying wife amodificationhearing? 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 apetition fordivorce 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 notpresent. In December 1984, the New Mexico court concluded that wife's affidavit for service by publication had been false and misleading, that wife had not exercised sufficient inquiry in attempting to locate husband, that the New Mexicoproceedings 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 theNew Mexico courtwas 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 theMontana decree. Wife moved to vacate theMontana 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 Courtdenied 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 amotion 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 issueshad 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 appealwas 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 jurisdictionmay be raised at any time. Rule 12(h)(3),M.R.Civ.P., and Corban

v. Corban (1972), 161Mont. 93, 504 P.2d 985. Therefore,the wife had 30 days from theMarch 10, 1986,effective dismissal of her subject matter jurisdiction motion to perfect her appeal. Her notice of appealwas 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 nothave 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 ofMontana when he filed for dissolution and that fraudwas committed on the courtby the husband when he filed hispetition fordissolution and stated:

Thatpetitioner has been a residentof 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 thatperiod of time

# . Wife maintains that this statement is falsedue 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 inNew Mexico during this 120 dayperiod. We point out that 5 40-4-104(a), MCA, only requires the court to find one of theparties was domiciled within Montana"for 90 days next preceding the making of the findings" 

## - -- (emphasisadded). Both sides agree that husband was domiciled in Montana for 90days 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 fraudupon the court. On the second issue,wife argues that theDistrictCourt 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 statebecause of his removal or retention by a person claiming his custody or for other reason and a parent orperson 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 beenmet and that theDistrict Courtproperly had jurisdiction over the child custody proceeding. After having lived in Montana for severalyears,wife and Kenneth went to New Mexico onAugust 27, 1981. Husband filed for the dissolutionof themarriage,asking for the custody ofKenneth,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 Kennethwas absent from the state because ofhis retentionby wife who was claiming his custody. Therefore, therequirements found in S 40-4-211, MCA, have been satisfied and the court had jurisdiction over the child custody proceedingpursuant to that statute. Finally, wife asserts that jurisdiction should be declinedpursuant 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 reprehensibleconduct,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 thebest 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 tobe caused by a change of environment is outweighed by its advantages to him; or (dl the child is 14years of age or older and desires the modification. Wife recognizes that the modification is discretionary with the District Court,but believesnew factshave 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 fromher 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. Inparticular 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 hasbeenmoved about a number of timesby his father, that he has had his school interrupted,and thathe 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 litigationover Kenneth is having an adverse affect on him. We note the
concerns of the psychologist with regard to Kenneth

## 's hyperactivity and his recommendationthatKennethbe reexamined at the Child Study Center. For their assistance,we call this to the attention ofboth parties. After careful consideration, we conclude the District Court has not abused its discretion in denying themotion for

amodificationhearing. / Affirmed.

We Concur:

JusticesIN THE SUPREME COURT OF THE STATE OF
No. 86-169
' ',+,; 

## 2'j.297

IN RE THEMARRIAGE OF GARELD E. COX* petitioner and Respondent, 1 and 1 ORDER
PENNY E. COX, Respondent and Appellant.

P,znny E. Cox, respo~dentand appellant, has petitioned for rehearing in thismatter. 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 thatmarriage. In January 1982,husband filed a dissolution petitionwith the DistrictCourt 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 wasnot present. In all other respecBthe petition for rehearing is denied. DATED this day of May, 1987.

Cl '--\ Chief Justice

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