NO. 95-001 

IN THE SUPREME COURT OF THE STATE OF MONTANA 

1995 

IN RE THE MARRIAGE OF 

KIMMA FLAMMOND WHETHAM, 

Petitioner and Appellant, 

and 

JAMES LEROY WHETHAM, 

Respondent 

APPEAL FROM: District Court of the Ninth Judicial District, 

In and for the County of Pondera, 

The Honorable John M. McCarvel, Judge presiding. 

COUNSEL OF RECORD: 

For Appellant: 

Thane Johnson; Werner, Epstein & Johnson, 

Cut Bank, Montana 

For Respondent: 

Joan E. Cook, Attorney at Law, Great Falls, 

Montana 

Filed: 

Submitted on Briefs: April 27, 1995 

Decided: May 25, 1995 
Justice W. William Leaphart delivered the Opinion of the Court. 

Kimma Flammond Whetham (Kimma) appeals from the findings of 

fact, conclusions of law and order of the Ninth Judicial District 

Court, Pondera County, which modified Kimma's prior child custody 

arrangement with her former husband James Leroy Whetham (James). 

We affirm. 

Kimma presents three issues for review which we restate as 

follows: 

1. Did the District Court err in concluding that it had 

jurisdiction to determine the custody issue? 

2. Did the District Court err in concluding it had 

jurisdiction before entering findings of fact on the issue? 

3. Did the District Court err in modifying custody? 

Backsround 

One child, Jamie, was born to Kimma and James on August 3, 

1986. On October 10, 1989, Kimma and James' common law marriage 

was dissolved. The decree of dissolution provided for joint 

custody of Jamie with Kimma designated as the primary custodian. 

Prior to entry of the decree, Kimma moved to Oregon with Jamie. 

In mid-January of 1994, Kimma left Jamie and Kimma's other 

daughter from a previous marriage with friends in Washington state 

because she was forced to leave her housing. Kimma remained in 

Oregon. Jamie lived with Kimma's friends in Washington state until 

June of 1994. In June, Jamie went to Montana for her summer 

visitation with James. 

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On February 14, 1994, James petitioned the District Court to 

modify the custody arrangement. On August 24, 1994, the court held 

a hearing and on September 6, 1994, the court entered its findings 

of fact, conclusions of law and order. The court concluded that it 

had jurisdiction over the matter and ordered that the parties would 

have joint custody, but that James would be the primary custodian. 

On September 28, 1994, Kimma filed a motion to alter or amend 

the judgment but the court took no action on the motion within 45 

days, and it was deemed denied. Kimma appeals. 

Issue 1 

Did the District Court err in concluding that it had 

jurisdiction to determine the custody issue? 

The District Court concluded that it had jurisdiction to 

modify custody based on § 40-4-211, MCA. We review conclusions of 

law, such as jurisdictional conclusions, to determine whether the 

court's interpretation of the law was correct. In re Marriage of 

Barnard (1994), 264 Mont. 103, 106, 870 P.2d 91, 93. 

Section 40-4-211(l), MCA, lists the situations in which 

Montana courts may assume jurisdiction over child custody matters. 

There are four separate circumstances under which the court may 

assume jurisdiction, any one of which is sufficient. The District 

Court concluded, and we agree, that 5 40-4-211(l) (b), MCA, was 

sufficient to confer jurisdiction in this case. That section 

states: 

(1) 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: 

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ibj it'is i n the best interest of the child that a court 

of this state assume jurisdiction because: 

(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 . . . 

Section 40-4-211(l) (b), MCA. 

Here, there is no dispute that James has significant 

connection to this state. We hold that Jamie has a significant 

connection to Montana because she was born and lived in Montana for 

the first few years of her life, she has had summer visitation in 

Montana, and both of her parents have close relatives living in 

Montana. Additionally, Jamie's father or mother's relatives can 

provide substantial evidence regarding Jamie's care. There is also 

substantial evidence in Montana as to her protection, schooling and 

relationships with other family members. 

Kimma argues that Oregon is Jamie's home state and that the 

District Court did not sufficiently consider that Oregon may have 

jurisdiction over this matter. Kimma contends that In re Marriage 

of Miller (1993), 259 Mont. 424, 856 P.2d 1378, demonstrates that 

a district court must first consider whether another state is the 

child's home state before determining jurisdiction. We disagree. 

In Marriage of Miller, this Court determined that Pennsylvania was 

the child's home state as a necessary step in determining whether 

the Montana court had jurisdiction pursuant to § 40-4-211(l) (d), 

MCA. Marriase of Miller, 856 P.2d at 1381. This analysis was 

necessary as we determined that none of the other subsections of s 

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40-4-211(l), MCA, conferred jurisdiction upon the district court. 

However in this case, the District Court had jurisdiction pursuant 

to 5 40-4-211(1)(b), MCA, thus a home state analysis was 

unnecessary. 

Finally, once jurisdiction is established under § 40-4-211, 

MCA, the court may still decline jurisdiction if it finds that it 

is an inconvenient forum. Section 40-7-108(l), MCA. Here, given 

the parties' significant connections to Montana, it cannot be said 

that the District Court erred in failing to find that Montana was 

an inconvenient forum. We hold that the District Court did not err 

in concluding that it had jurisdiction to modify custody. 

Issue 2 

Did the District Court err in concluding it had jurisdiction 

before entering findings of fact on the issue? 

After the court questioned both parties, and before the 

attorneys questioned the parties, Kimma's counsel requested a 

ruling on jurisdiction. In response, Judge McCarvel stated that 

the court had jurisdiction. Several days after the hearing, the 

District Court entered its written findings of fact and conclusions 

of law. Kimma contends that the judge's oral statement before 

issuing findings of fact is contrary to the commands of Rule 52(a), 

M.R.Civ.P., and this Court's ruling in Marry v. Missoula County 

Sheriff's Dept. (1993), 263 Mont. 152, 866 P.2d 1129. 

Rule 52(a), M.R.Civ.P., requires the court to specially find 

the facts and separately state its conclusions based on the 

findings. In Marrv, the plaintiff brought a personal injury action 

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following an auto accident. Th,e trial court initially found that 

the parties were equally at fault and made a conclusion that 

because the parties were equally at fault, the plaintiff could not 

recover. The plaintiff moved the court to amend its findings and 

conclusions on the basis that, under Montana law, if the parties 

were equally at fault, she could recover 50% of her damages. The 

court amended its findings, but stated it was the court's intention 

to deny the plaintiff any recovery. Thus the court amended its 

findings to read that the plaintiff was more at fault than the 

other driver. Marrv, 866 P.2d at 1130-31. This Court reversed 

stating that it was apparent that the court did not review the 

record before amending its findings in violation of Rule 52(b), 

M.R.Civ.P., and that the trial court effectively made its legal 

conclusion before making supporting findings in violation of Rule 

52 (a), M.R.Civ.P. Marry, 866 P.2d at 1131. 

The present case is distinguishable. The District Court 

questioned the parties before counsel requested a ruling on 

jurisdiction. In response to the request, the judge made an oral 

ruling. The court also made written findings before making written 

conclusions which were supported by the findings. There is no 

indication, as there was in Marry, that the court skewed its 

findings to arrive at a desired conclusion. We hold that the 

District Court did not err in making its findings of fact and 

conclusions of law. 

Issue 3 

Did the District Court err in modifying custody? 

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We have stated that we will overturn a court ' s custody 

decision only when the court's findings and conclusions clearly 

demonstrate an abuse of discretion. In re Marriage of Hunt (1994), 

264 Mont. 159, 164, 870 P.2d 720, 723. We hold that the court did 

not abuse its discretion. 

Section 40-4-219(l), MCA, provides in relevant part: 

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: 

. . . 

(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 . . . 

Here, the District Court concluded that § 40-4-219(l) (c), MCA, 

permitted the modification of custody in this case. We agree. 

Kimma left Jamie in the care of friends in the state of 

Washington for approximately five months. Kimma testified that she 

did so because she did not have adequate housing for Jamie. Jamie 

testified that her mother did not visit her very often during this 

time period. Jamie was removed from her school in Oregon and 

registered in a Washington school. When James picked up Jamie for 

summer visitation, he discovered that Jamie was suffering from head 

lice. Jamie testified that she wanted to live with her father and 

that she had met friends in Montana 

The record supports the District Court's conclusion that the 

modification in custody was in Jamie's best interests and that the 

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requisites of 5 40-4-219(l) cc), MCA, were met in the present case. 

We hold that the District Court did not err in modifying the prior 

custody arrangement. 

Affirmed. 

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 

with the Clerk of the Supreme Court and by a report of its result 

to Montana Law Week, State Reporter and West Publishing Company. 

We concur: 

Chief Justice 

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