NO. 93-087

IN THE SUPREME COURT OF THE STATE OF MONTANA

1993

IN RE THE MARRIAGE OF

KAREN PETERSON ERLER,

Petitioner/Respondent,

-vSCOTT ERLER,

Respondent/Appellant.

APPEAL FROM: District Court of the Fourth Judicial District,

In and for the County of Missoula,

The Honorable Jack L. Green, Judge presiding.

COUNSEL OF RECORD:

For Appellant:

P. Mars Scott, Mulroney, Delaney & Scott, Missoula,

Montana

For Respondent:

Darla Keck, Datsopoulos, MacDonald & Lind, Missoula,

Montana

Filed:

Submitted on Briefs: August 12, 1993

Decided: October 14, 1993

Cl/erk
Justice James C. Nelson delivered the Opinion of the Court.

This is an appeal from a Fourth Judicial District Court,

Missoula County, opinion, determining that the court did not have

jurisdiction over the custody matters at issue. We affirm.

We restate the issues on appeal:

I . Did the District Court err in concluding that under the

Federal Parental Kidnapping Prevention Act (PKPA) and the Montana

Uniform Child Custody Jurisdiction Act (MUCCJA), it did not have

subject matter jurisdiction?

II. Did the District Court err by failing to conduct an

evidentiary hearing before it concluded that it did not have

subject matter jurisdiction?

III. Should this Court strike a provision in the April 26,

1985 order, stating that "visitation rights herein are subject to

the Respondent being concurrent in his child support obligations?"

BACKGROUND

The parties, Karen Peterson Erler (Karen) and Scott Erler

(Scott), were married on December 22, 1979. Two children, twin

sons, Thomas and Mark, were born of the marriage on October 5,

1981. The marriage was terminated in Missoula, Montana, on

September 7, 1984 with Karen granted sole custody of the children

and Scott ordered to pay $400 per month per child for child

support.

The parties have spent numerous days in court on a variety of

issues since their dissolution in 1984, notably for Scott's failure

to pay monthly child support, Karen's $6,500 share of the equity in

their home, and $4000 for Karen's attorney's fees. In an attempt

to persuade Scott to pay child support for Thomas and Mark, the

Court provided in its April 26, 1985 order that visitation would be

contingent upon Scott's payment of child support to Karen. This

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order also states that Scott consented to Karen's move to Seattle,

Washington with the two boys, to establish a permanent residence

there. A petition for modification of amended decree of

dissolution states that a major reason for moving was to avoid

encountering Scott.

In an order dated December 12, 1985, the paternal grandparents

were granted limited visitation with Thomas and Mark, with certain

restrictions. The District Court noted that "the request of the

grandparents is in part an attempt to circumvent the Court's

earlier Order regarding... the reintroduction of the children to

their father and the payment of support."

The latest matter to come before the trial court involved

Scott's motion to quash the writ of execution issued by the court

on his Keogh retirement plan for failure to pay on his dissolution

obligations. Also involved was Scott's motion for an order of

investigation and a report concerning custody arrangements, his

motion to modify custody and child support and finally, Karen's

motion to dismiss Scott's petition to modify custody due to lack of

subject matter jurisdiction.

In its order, the trial court concluded that:

The Motion to Quash Writ of Execution is granted,

and

II.

The Motion to Dismiss Petition for Modification of

Custody for Lack of Jurisdiction is granted, and

III.

Having no jurisdiction to hear matters of custody,

the court takes no action on Respondent's Motion for

Investigation and Report Concerning Custody Arrangements

for the Children.

IV.

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Having no jurisdiction to hear matters of custody of

these children, the Court takes no action on Respondent's

Motion to Find Visitation Interference or Respondent's

Motion to Modify Child Support which was based on the

condition that he be granted custody.

The trial court stated that it did, however, retain

jurisdiction over child suvvort matters.

On December 18, 1992, the trial court denied Scott's combined

motion for a Rule 59(g) order to alter or amend, or in the

alternative, a Rule 60(b), order for relief of a judgment or order.

Scott's appeal of the court's denial brings this action before the

Montana Supreme Court.

Our standard of review is whether the lower court's

conclusions are correct. Steer, Inc. v. Department of Revenue

(1990) II 245 Mont. 470, 474, 803 P.2d 601, 603; In re Marriage of

Danelson (1992), 253 Mont. 310, 317, 833 P.2d 215, 220.

I. SUHJECT MATTER JURISDICTION

The primary issue on appeal is whether the trial court was

correct in concluding that it did not have subject matter

jurisdiction over child custody matters under the PKPA and/or the

MUCCJA. Scott argues that under the PKPA, "Montana must continue

as the jurisdictional forum to review all child care issues,

including custody," and that the PKPA supersedes the MUCCJA. Karen

counters that Scott is unable to meet the jurisdictional

requirements of the MUCCJA and also, the PKPA does not confer

subject matter jurisdiction in the instant case. We agree.

A. PARENTAL KIDNAPPING PROTECTION ACT (PKPA)

Scott argues that the PKPA supersedes the MUCCJA and "protects

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the rights of a custody state to exercise continuing jurisdiction

over child custody issues." However, Karen asserts that the PKPA

"was enacted by Congress so that there will be uniformity in

determining which states will have jurisdiction over child custody

proceedings when there is a conflict between two states attempting

to simultaneously assert jurisdiction." (Emphasis supplied.)

Since the PKPA has not previously been interpreted by this

Court, the entire statute is set forth at the end of this opinion.

' Additionally, we will briefly discuss the history and purposes

of the PKPA.

The PKPA was enacted by Congress in 1980 to address the

continuing problems of forum shopping and "child snatching." 28

USC 5 1738A; History: Ancillary Laws and Directives (a), page 228.

Because custody decisions were not thought to be final judgments,

State B would frequently fail to accord full faith and credit to a

decision from State A. Foster, Child Custody Jurisdiction: UCCJA

and PKPA, 27 NY L Sch L Rev 297, 297-298, (1981). This fact led to

a growing number of parents seizing their child or children, moving

to another jurisdiction, and bringing an action for custody in the

new jurisdiction to obtain a more favorable judgment. 27 NY L Sch

L Rev at 298. All too frequently, the end result was two

conflicting decisions from the two different jurisdictions.

The Uniform Child Custody Jurisdiction Act (UCCJA), which had

been adopted by most states to address interstate child custody

disputes, was found to be inadequate to address the problems of

forum shopping and "child snatching" because the UCCJA operated at

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the state level. Pettenati, The Effect of the Parental Kidnaping

Prevention Act of 1980 on Child Snatching, 17~2 New Eng 499, 506-

507, (1982). The individual states were unable to deal with

problems that were essentially interstate in nature. %7:2 New Eng

at 507. Additionally, the lack of perceived finality in child

custody issues continued to plague the state courts. 17~2 New Eng

at 506.

The PKPA established national standards under which

jurisdictions could determine whether they had jurisdiction and

what effect to give the decisions by courts of other jurisdictions.

The PKPA requires full faith and credit be accorded to decisions of

a jurisdiction if the court appropriately exercised jurisdiction

under the PKPA standards. 28 USC 5 1738A(a).

The statute's general purposes are to promote cooperation and

the exchange of information between state courts, facilitate the

enforcement of custody decisions of sister states and to discourage

continuing interstate controversies over child custody. 28 USC 5

1738A History; Ancillary Laws and Directives, page 228. These

purposes are achieved primarily through 28 USC § 1738A(d) which

provides as follows:

The jurisdiction of a court of a State which has made a

child custody determination consistently with the

provisions of this section continues as long as the

requirement of subsection (c)(l) of this section

continues to be met and such State remains the residence

of the child or of any contestant.

28 USC !j %738A(d) vests continuing jurisdiction in the

original state as long as the child or one of the contestants

continues to reside there. However, subsection (f) of 28 USC §

6
173819 permits a court of a state to modify a determination of

custody of the same child or children made by another court if it

has jurisdiction to make such a custody decision and the court of

the other state no longer has jurisdiction or declines to exercise

its jurisdiction.

As to the issue of whether the PKPA confers subject matter

jurisdiction in the instant case, we conclude that it does not

because Montana is the only state involved in the custody issue at

this time. "The purpose of the PKPA is to prevent the issuance of

comnetinq decrees in sister states." Nielsen v. Nielsen (La.

1985), 472 So.2d 133, 136. (Emphasis supplied.) See also:

Peterson v. Peterson (Me. 1983), 464 A.2d 202, 204. ("Both the

UCCJA and PKPA were enacted to prevent jurisdictional conflict and

competition over child custody....") (Emphasis added.) In the

instant case, there is no other state competing with Montana for

jurisdiction. Neither Karen nor Scott have sought to invoke the

jurisdictional powers of the Washington courts. Since the State of

Washington is not attempting to compete with the State of Montana

for jurisdiction in the matter of child custody, the PKPA is not

invoked. We conclude that the trial court correctly determined

that the PKPA does not apply in this case.

B. MONTANA UNIFORM CHILD CUSTODY JURISDICTION ACT (MUCCJA)

Next, we must determine whether Montana has subject matter

jurisdiction over the child custody issues under the MUCCJA, which

is found at Chapter 7 of Title 40. Scott argues that "Section 40-

4-211, MCA, is also pertinent to this case." He contends that

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Montana was the home state of the children when the proceedings

were commenced and further, jurisdiction is established in Montana

because the petition for dissolution was filed in Missoula,

Montana. Karen states that Montana is unable to meet any of the

jurisdictional requirements of the MUCCJA and therefore, it does

not have jurisdiction in the instant case.

Section 40-7-104, MCA, states that "[t]he jurisdictional

provisions of 40-4-211 apply to this chapter." Section 40-4-211,

MCA, is the *'premier jurisdictional hurdle which must be overcome

before a district court may modify a child custody decree with

interstate implications." In re Marriage of Lance (1984), 213

Mont. 182, 188, 690 P.2d 979, 982, citing In re the Marriage of

Bolton (1984), 212 Mont. 212, 218, 690 P.Zd 401, 404. Section 40-

4-211, MCA, provides:

Child custo&y jurisdiction - commencement of proceedings.

(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:

(a) this state:

(i) is the home of the child at the time of

commencement of the proceedings: or

(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: or

(b) it is in 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: or

(c) the child is physically present in this state

and:

(i) has been abandoned; or

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(ii) it is necessary in an emergency to protect him

because he has been subjected to or threatened with

mistreatment or abuse or is neglected or dependent: or

Cd) (i.) no other state has jurisdiction under

prerequisites substantially in accordance with

subsections (l)(a), (l)(b), or (l)(c) of this section or

another state has declined to exercise jurisdiction on

the ground that this state is the more appropriate forum

to determine custody of the child: and

(ii) it is in his best interest that the court

assume jurisdiction.

(2) Except under subsections (l)(c) and (l)(d) of

this section, physical presence in this state of the

child or of the child and one of the contestants is not

alone sufficient to confer jurisdiction on a court of

this state to make a child custody determination.

Section 40-4-211(1)(a), MCA, requires the trial court to

determine which state is the child's home state or his home state

within the past 6 months. "Home state" means "the state in which

the child, immediately preceding the time involved, lived with his

parents, [or] a parent... for at least 6 consecutive months...."

Section 40-7-103, MCA. In the instant case, Scott consented to

Karen's move to Washington with the boys in 1985. They have

consistently resided with her in the State of Washington since that

time with the exception of visitation with Scott and/or the

paternal grandparents. Washington is unquestionably the home

state, not Montana. Lance, 690 P.2d at 983. This determination

comports with one of the general purposes of the MUCCJA, which is

to:

(c) assure that litigation concerning the custody of a

child takes place ordinarily in the state with which the

child and his family have the closest connection and

where significant evidence concerning his care,

protection, training, and personal relationships is most

readily available and that courts of this state decline

the exercise of jurisdiction when the child and his

family have a closer connection with another state....

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Section 40-7-102(1)(c), MCA. Section 40-4-211(1)(a), MCA, does not

apply to the instant case.

Under 5 40-4-211(1)(b), MCA, Montana has jurisdiction if the

child and his parents, or at least one contestant have a

significant connection with Montana a& substantial evidence is

available here concerning the children's present or future care,

training, and personal relationships. Mark and Tom have lived in

Washington for the greater majority of their lives. Scott has

significant connections with Montana but the boy's connection stems

from visitation with their father. Even if the boys had

significant connections with Montana, there must also be available

in the state substantial evidence concerning their "present or

future care, protection, training, and personal relationships.'*

Section 40-4-211(l)(b)(ii), MCA. In this case, Mark and Tom's

friends, classmates, teachers and physicians reside in Washington

where the boys have resided for the last 7 years. Again, under 5

40-7-102(1)(c), MCA, above, the requirements of subsection (l)(b)

of 5 40-4-211, MCA, simply cannot be met in this case.

Subsection (l)(c) of 5 40-4-211, MCA, requires that the child

be physically present in this state & have been abandoned or that

an emergency situation necessitates the child's protection under

subsection (l)(c). In this case, the children are not physically

present in Montana nor are there any allegations of abandonment,

mistreatment, abuse or neglect. Thus, the requirements of 5 40-4-

211 (1) (cl I MCA, cannot be met.

Under § 40-4-211(1)(d), MCA, this state may assume

10
jurisdiction if no other state has jurisdiction under guidelines

comparable to those of subsections (l)(a), (b) and (c) or another

state has declined jurisdiction because this state is a more

appropriate forum and it is in the children's best interest that

this court assume jurisdiction. Since there has been no contact

with the courts in the State of Washington, it cannot be said that

Washington, the boys' home state, would not have jurisdiction nor

that it would decline jurisdiction. Neither can it be said that it

is in the best interest of the children for child custody to be

adjudicated in Montana. As stated earlier, the boys do not have a

significant connection with Montana nor would substantial evidence

be found in Montana regarding their present and future care and

training. Finally, the boys do not live in Montana, have not lived

here in years and there is no threat or emergency to necessitate

Montana's claim to jurisdiction. In conclusion, Montana cannot

claim jurisdiction over child custody matters in this case and the

trial court correctly concluded that Montana does not have subject

matter jurisdiction in this case.

II. EVIDENTIARY HEARING

Scott argues that under Pierce v. Pierce (1982), 197 Mont. 16,

640 P.2d 899, "when dealing with the children's best interests, an

evidentiary hearing is the only means of determining those best

interests as they relate to jurisdiction." However, Karen counters

that this issue is being raised for the first time on appeal and

therefore, should not be addressed. Scott does not discuss this

assertion in his reply brief; his silence and a review of the

11
record reveal that this is, indeed, the first time this issue has

been raised. It is a settled rule in Montana that we will not

review an issue raised for the first time on appeal. In re

Marriage of Starks (1993), 50 St. Rep. 719, 722, _ Mont. __, 855

P.2d 527, 532. Therefore, we decline to address this issue.

III. MOTION TO STRIKE

Scott's final issue on appeal concerns his request to strike

a provision in the April 26, 1985 order, stating that "visitation

rights herein are subject to the Respondent being concurrent in his

child support obligations." However, Karen argues that Scott

should have appealed this issue within 30 days of the 1985

judgment. Alternatively, if the issue is before the Court, she

contends that although the trial court erroneously used the word

V'concurrent'V instead of current, the trial court's intention was to

require child support payment before the exercise of visitation.

Given Scott's continuing, flagrant abuse of his support obligations

we will address this issue.

At the outset, we note that visitation and child support are

not interdependent. State ex rel. Dewyea v. Knapp (1984), 208

Mont. 19, 22-23, 674 P.2d 1104, 1105-1106; State ex rel. Blakeslee

v. Horton (1986), 222 Mont. 351, 355, 722 P.2d 1148, 1150.

However, in this case, a review of the record reveals a clear

intention by the trial court to ensure that child support would be

current before visitation could be exercised based on Karen's

continuing child support problems and the parties' stipulation on

the record to that provision.

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Karen had previously reported to the trial court that she was

not being paid child support. In her Petition for Modification of

Amended Decree of Dissolution, and affidavit, both signed on

January 31, 1985, she contended that Scott was in arrears in the

amount of $2,800.00. In her February 5, 1985 Motion for Temporary

Order, she again stated "[t]hat Respondent is in arrears for months

July, 1984, until January, 1985 in the amount of $2,800.00." These

documents indicate that Karen was concerned about the child support

arrearages, and that she made the court aware of Scott's noncompliance.

A simple reading of Finding of Fact 10 from the trial court's

order of April 26, 1985, makes it evident that the trial court

intended to require that the child support be current before Scott

exercised visitation. It states "[t]hat the visitation rights

herein are subiect the Respondent being concurrent [sic] in his

child support." (Emphasis added.) The visitation rights are

"subject to" the condition that the child support obligations be

met. That condition is an indisputable mandate, that child support

payments were to be current. The trial court made this requirement

a condition of Scott's exercise of visitation.

The following portion of the February 21, 1985 transcript

further clarifies this issue and provides as follows:

(By Mr. MacDonald): The visitation rights as set forth

herein are by stipulation subject to the Respondent being

concurrent in the child support obligations at the time

of the commencement of his child support obligations. I

realize, your Honor, that this is an unusual stipulation,

as some of these proceedings are, but I would remind the

court we have been through this. This is now our third

appearance in Court. No child support has been paid to

13
date, and this agreement is being made by stipulation of

the parties in view of those circumstances.

THE COURT: I did't quite understand what you said about

visitation current in child support. You used --

MR. MacDONALD: Excuse me.

THE COURT: I would like you to repeat it.

MR. MacDONALD: All visitation rights of the Respondent

are conditioned upon his being current in the payment of

child support at the date he is exercising his

visitation. That is, if he is not current, through the

Clerk of Court, then the visitation will not take place.

. . .

MR. MacDONALD: Could the Court have both the parties

stipulate on the record that they find the agreement

acceptable?

THE COURT: Dr. Erler?

MR. ERLER: Acceptable.

THE COURT: And you?

MRS. ERLER: Yes.

It is apparent that Scott is using a minor mistake in an

otherwise clear order to avoid his child support obligations. His

position is untenable. A review of the record and a careful

reading of the trial court's order make it clear that child support

is not dependent upon the exercise of visitation, but that

visitation is conditioned upon child support payments being current

at the time of visitation. His argument, wholly unsupported by the

record, leads us to deny his request to strike that portion of the

trial court's order. In so doing, we stress, however, that the

facts and stipulation of the parties in this case are unique. This

case shall not hereafter be cited for the proposition that

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visitation is dependent upon child support being current: the two

are not interdependent.

AFFIRMED.

1 . The PKPA provides as follows:

Full faith and credit given to child custody

determinations

(a) The appropriate authorities of every State shall

enforce according to its terms, and shall not modify

except as provided in subsection (f) of this section, any

child custody determination made consistently with the

provisions of this section by a court of another State.

(b) As used in this section, the term--

(1) sc:hild" means a person under the age of

eighteen:

(2) llcontestant" means a person, including a parent,

who claims a right to custody or visitation of a

child:

(3) "custody determination" means a judgment,

decree, or other order of a court providing for the

custody or visitation of a child, and includes

permanent and temporary orders, and initial orders

and modifications:

(4) "home State" means the State in which,

immediately preceding the time involved, the child

lived with his parents, a parent, or a person

acting as parent, for at least six consecutive

months, and in the case of a child less than six

months old, the State in which the child lived from

birth with any of such persons. Periods of

temporary absence of any of such persons are

counted as part of the six-month or other period:

(5) "modification" and "modify" refer to a custody

determination which modifies, replaces, supersedes,

or otherwise is made subsequent to, a prior custody

determination concerning the same child, whether

made by the same court or not;

(6) "person acting as a parent" means a person,

other than a parent, who has physical custody of a

child and who has either been awarded custody by a

court or claims a right to custody:

(7) lqphysical custody" means actual possession and

control of a child: and

(8) "State" means a State of the United States, the

District of Columbia, the Commonwealth of Puerto

Rico, or a territory or possession of the United

States.

(c) A child custody determination made by a court of a

State is consistent with the provisions of this section

15
only if--

(1) such court has jurisdiction under the law of

such State: and

(2) one of the following conditions is met:

(A) such State (i) is the home State of the

child on the date of the commencement of the

proceeding, or (ii) had been the child's home

State within six months before the date of the

commencement of the proceeding and the child

is absent from such State because of his

removal or retention by a contestant or for

other reasons, and a contestant continues to

live in such State;

(B) (i) it appears that no other State would

have jurisdiction under subparagraph (A),

and (ii) it is in the best interest of

the child that a court of such State

assume jurisdiction because (I) the child

and his parents, or the child and at

least one contestant, have a significant

connection with such State other than

mere physical presence in such State, and

(II) there is available in such State

substantial evidence concerning the

child's present or future care,

protection, training, and personal

relationships;

(C) the child is physically present in such

State and (i) the child has been abandoned, or

(ii) it is necessary in an emergency to

protect the child because he has been

subjected to or threatened with mistreatment

or abuse;

(U) (i) it appears that no other State would

have jurisdiction under subparagraph (A),

(W, CC), or (W, or another State has

declined to exercise jurisdiction on the

ground that the State whose jurisdiction

is in issue is the more appropriate forum

to determine the custody of the child,

and (ii) it is in the best interest of

the child that such court assume

jurisdiction: or

(E) the court has continuing jurisdiction

pursuant to subsection (d) of this section.

(d) The jurisdiction of a court of a State which has made

a child custody determination consistently with the

provisions of this section continues as long as the

requirement of subsection (c)(l) of this section

continues to be met and such State remains the residence

of the child or of any contestant.

(e) Before a child custody determination is made,

reasonable notice and opportunity to be heard shall be

given to the contestants, any parent whose parental

16
rights have not been previously terminated and any person

who has physical custody of a child.

(f) A court of a State may modify a determination of the

custody of the same child made by a court of another

State, if--

(1) it has jurisdiction to make such a child

custody determination: and

(2) the court of the other State no longer has

jurisdiction, or it has declined to exercise such

jurisdiction to modify such determination.

(g) A court of a State shall not exercise jurisdiction in

any proceeding for a custody determination commenced

during the pendency of a proceeding in a court of another

State where such court of that other State is exercising

jurisdiction consistently with the provisions of this

section to make a custody determination.

28 USA s 1738A.

We Concur:

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