NO. 95-001 IN THESUPREME

COURTOFTHESTATEOFMONTANA 1995

IN RETHEMARRIAGEOF KIMMAFLAMMOND

WHETHAM, andAppellant, Petitioner and JAMESLEROYWHETHAM,

Respondent

APPEALFROM: District Court of the Ninth Judicial District,

In and for the County of Pondera, The Honorable John M. McCarvel, Judge presiding.

COUNSELOFRECORD:

For Appellant: ThaneJohnson; 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: May25, 1995Justice W.William Leaphart delivered the Opinion of the Court.

KimmaFlammondWhetham (Kimma) appeals from the findings of fact, conclusions of law andorder of the Ninth Judicial District Court, Pondera County, which modified Kimma's prior child custody arrangement with her former husband James Leroy Whetham (James). Weaffirm. Kimmapresents 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 Kimmaand James onAugust 3, 1986. OnOctober 10, 1989, Kimmaand James' commonlaw marriage
was dissolved. The decree of dissolution provided for joint custody of Jamie with Kimmadesignated as the primary custodian. Prior to entry of the decree, Kimmamovedto Oregon with Jamie. In mid-January of 1994, Kimmaleft Jamie and Kimma's other daughter from aprevious marriage with friends in Washington state because she was forced to leave her housing. Kimmaremained 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.
2OnFebruary 14, 1994, Jamespetitioned the District Court to

modify the custody arrangement. OnAugust 24, 1994, the court held
ahearing andonSeptember 6, 1994, the court entered its findings of fact, conclusions of law andorder. Thecourt concluded that it hadjurisdiction over the matter andordered that the parties would have joint custody, but that Jameswould bethe primary custodian. OnSeptember 28, 1994, Kimmafiled amotion to alter or amend the judgment but the court took noaction onthe motion within 45 days, and it wasdeemeddenied. Kimmaappeals. 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. Wereview 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), 264Mont. 103, 106, 870 P.2d 91, 93. Section 40-4-211(l), MCA, lists the situations in which Montana courts mayassumejurisdiction over child custody matters. There are four separate circumstances under which the court may assumejurisdiction, anyoneof which is sufficient. TheDistrict 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 makeachild custody determination by initial or modification decree if:
3ibj it'is inthe best interest of the child that acourt

of this state assumejurisdiction 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, andpersonal relationships

. . . Section 40-4-211(l) (b), MCA. Here, there is no dispute that James has significant connection to this state. Wehold that Jamie has a significant connection to Montana because shewasborn andlived in Montana for the first few years of her life, she has had summervisitation 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 asto her protection, schooling and relationships with other family members. Kimmaargues that Oregon is Jamie's homestate and that the District Court did not sufficiently consider that Oregon mayhave jurisdiction over this matter. Kimmacontends that In re Marriage of Miller (1993), 259 Mont. 424, 856 P.2d 1378, demonstrates that
adistrict court must first consider whether another state is the child's homestate before determining jurisdiction. Wedisagree. In Marriage of Miller, this Court determined that Pennsylvania was the child's homestate as anecessary 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 aswedetermined that noneof the other subsections of s
440-4-211(l), MCA,conferred jurisdiction upon the district court.

However in this case, the District Court hadjurisdiction 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 maystill 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 besaid that the District Court erred in failing to find that Montana was aninconvenient forum. Wehold that the District Court did not err in concluding that it hadjurisdiction to modify custody. Issue 2 Did the District Court err in concluding it had jurisdiction before entering findings of fact onthe 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 andconclusions of law. Kimmacontends that the judge's oral statement before issuing findings of fact is contrary to the commandsof Rule 52(a), M.R.Civ.P., and this Court's ruling in Marry v. Missoula County Sheriff's Dept. (1993), 263Mont. 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 apersonal injury action
5following anauto accident. Th,etrial 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. Theplaintiff movedthe court to amendits 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 amendedits findings, but stated it wasthe 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 madeanoral ruling. Thecourt also madewritten 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. Wehold 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?
6We have stated that we will overturn a court 's custody

decision only when the court's findings and conclusions clearly demonstrate anabuse of discretion. In re Marriage of Hunt (1994), 264 Mont. 159, 164, 870 P.2d 720, 723. Wehold 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 hasoccurred 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 andthe 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. Weagree. Kimma left Jamie in the care of friends in the state of Washington for approximately five months. Kimmatestified that she did so because shedid 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 aWashington school. WhenJamespicked upJamie for
summervisitation, hediscovered that Jamie wassuffering from head lice. Jamie testified that shewanted 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 andthat the
7requisites of 540-4-219(l) cc), MCA,were met in the present case.

Wehold 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 becited as precedent andshall bepublished by its filing asapublic document with the Clerk of the Supreme Court and by areport of its result to Montana LawWeek, State Reporter andWest Publishing Company.

Weconcur:

Chief Justice

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