No. 95-383

IN THE SUPREME COURT OF THE STATE OF MONTANA

1996

IN RE THE MARRIAGE OF

YANCY W. SHUPE,

Petitioner and Appellant,

and

PAMELA J. SHUPE,

Respondent and Respondent.

APPEAL FROM: District Court of the Thirteenth Judicial District,

In and for the County of Stillwater,

The Honorable Russell C. Fagg, Judge presiding.

COUNSEL OF RECORD:

For Appellant:

Robert Eddleman, Attorney at Law, Columbus,

Montana

For Respondent:

Jill Deann Miller, Attorney at Law, Billings,

Montana

Filed:

Submitted on Briefs: January 18, 1996

Decided: May 10, 1996
Justice Karla M. Gray delivered the Opinion of the Court.

Yancy W. Shupe (Yancy) appeals from the Findings of Fact,

Conclusions of Law and Order of the Thirteenth Judicial District

Court, Stillwater County, denying his petition for modification of

custody. The court based the denial on its conclusions that it did

not have subject matter jurisdiction to modify custody under the

Parental Kidnapping Prevention Act, 28 U.S.C. 5 1738A, and that

Yancy failed to satisfy the statutory requirements for

modification. We affirm.

The dispositive issues on appeal are:

1 . Is Yancy's appeal properly before us?

2 . Did the District Court err in concluding that it did not

have subject matter jurisdiction to modify custody under the

Parental Kidnapping Prevention Act?

Yancy and Pamela Shupe (Pamela) are the parents of a minor

child, Megan Shupe (Megan). Before the events at issue in this

case, the family resided in Utah. In October of 1993, Yancy moved

to Nye, Montana, to work at the Stillwater Mine; Pamela and Megan

remained in Utah. Yancy and Pamela's marriage was dissolved by a

Utah district court on January 12, 1994. In the decree of

dissolution, the court granted Pamela sole custody of Megan and

awarded Yancy liberal visitation rights.

Pamela and Megan remained in Utah immediately following the

dissolution of the parties' marriage. The record reflects that,

between April of 1994 and January of 1995, Pamela and Megan went

back and forth between Montana and Utah on numerous occasions.

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Yancy moved some of Pamela's belongings to Montana in July of 1994.

The parties agree that Pamela and Megan lived with Yancy in Montana

from January of 1995 until sometime in March of that year.

On March 9, 1995, Pamela and Megan were involved in a singlecar accident while returning to Nye from Dean, Montana; neither

Pamela nor Megan was injured. Pamela was cited for driving under

the influence of alcohol (DUI) and pleaded not guilty. Pamela and

Megan returned to Utah later that month and lived with Pamela's

mother.

In April of 1995, Yancy moved the District Court for a

temporary order changing Megan's custody to him. He also

petitioned for modification of custody pursuant to § 40-4-219, MCA.

The District Court concluded that it did not have subject matter

jurisdiction to modify custody under the Parental Kidnapping

Prevention Act (PKPA) and, further, that Yancy failed to satisfy

the statutory requirements for modification of custody. Yancy

appeals. Additional facts are set forth below where necessary to

our resolution of the issues.

1 . Is Yancy's appeal properly before us?

Pamela contends that the District Court's order merely denied

Yancy's motion for temporary custody and that such an order is not

appealable under Rule 1, M.R.App.P. While we agree with Pamela

that Rule 1, M.R.App.P., does not authorize an appeal from an order

denying a motion for temporary change of custody, we disagree that

the District Court's May 30, 1995, order was a mere denial of such

a motion.

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Yancy filed a motion for a temporary order changing custody

and a petition for modification of custody under 5 40-4-219, MCA,

on the same date. The District Court held a hearing on May 14,

1995. The record reflects that, at the beginning of the hearing,

the parties and the court were confused as to whether the hearing

was limited to Yancy's motion for temporary custody or whether his

petition for modification also was being heard. The District Court

first indicated that only Yancy's motion for temporary custody was

before it, then indicated that it also would hear Yancy's petition

for modification of custody and, finally, indicated again that only

the motion for temporary custody was being heard.

The District Court's findings of fact, conclusions of law and

order state at the outset, and without further clarification, that

" [tlhis matter" was heard on May 14, 1995. The court's findings

and conclusions address both jurisdiction and custody modification.

Regarding the latter, the court concluded that Yancy had not met

the requirements of § 40-4-219, MCA, and denied Yancy's "petition."

On the basis of the record before us, we cannot conclude that

the District Court's order was limited to denying Yancy's motion

for a temporary change of custody. We conclude that the order at

issue substantively denied Yancy's § 40-4-219, MCA, petition for

modification of custody on the bases of lack of subject matter

jurisdiction and failure to satisfy the statutory requirements for

custody modification. As a result, we hold that the District

Court's order is appealable under Rule 1, M.R.App.P., and that

Yancy's appeal is properly before us.

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2. Did the District Court err in concluding that it did

not have subject matter jurisdiction to modify custody

under the PKPA?

A. APPLICABILITY OF THE PKPA

All fifty states have adopted the Uniform Child Custody

Jurisdiction Act (UCCJA) in some form to address interstate custody

disputes. See Meade v. Meade (4th Cir. 1987), 812 F.2d 1473, 1475.

However, the UCCJA was found to be inadequate in addressing the

problems of forum shopping and "child snatching" because it

operated at the state level. Erler v. Erler (1993), 261 Mont. 65,

69, 862 P.2d 12, 15. Moreover, as the Utah Court of Appeals

observed in Curtis v. Curtis (Utah Ct. App. 1990), 789 P.2d 717,

721 n.9, the UCCJA creates the possibility of several states having

concurrent jurisdiction over child custody determinations.

Congress enacted the PKPA in 1980 to establish national

standards under which the courts of various states could determine

whether they had jurisdiction in a child custody proceeding and

what effect to give custody determinations by courts of other

jurisdictions. Erler, 862 P.2d at 15. Under the PKPA, full faith

and credit ordinarily must be given to a custody determination made

by a court of another state if that court appropriately exercised

jurisdiction under PKPA standards. See 28 U.S.C. § 1738A(a);

Erler, 862 P.2d at 15.

Two underlying purposes of the PKPA are to discourage

continuing interstate controversies over child custody and to

facilitate the enforcement of custody determinations of sister

states. Erler, 862 P.2d at 15 (citation omitted). In this regard,

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the PKPA prevents the issuance of competing decrees of sister

states. Erler, 862 P.2d at 16 (citing Nielsen v. Nielsen (La.

1985), 472 So. 2d 133, 136). Thus, the PKPA sets forth standards

for determining the one state with jurisdiction to modify an

existing custody order. & 28 U.S.C. 55 1738A(d) and (f); Curtis,

789 P.2d at 721.

The purposes of the PKPA are achieved through both 28 U.S.C.

§§ 1738A(d) and (f). 28 U.S.C. 5 1738A(d) provides for continuing

jurisdiction in the state in which the original child custody

determination was made so long as certain enumerated requirements

are satisfied (see Erler -I 862 P.2d at 15), while 28 U.S.C. §

1738A(f) allows a court of a different state to modify a custody

determination only when it has jurisdiction to make such a

determination under its own laws and the court which made the

original custody determination no longer has jurisdiction or has

declined to exercise such jurisdiction (see Meade, 812 F.2d at

1476-77). Thus, Congress' enactment of 28 U.S.C. §§ 1738A(d) and

(f) remedied the problem of possible concurrent jurisdiction

present in the UCCJA. Accordingly, where the PKPA applies,

necessary jurisdictional determinations must be made thereunder.

Yancy argues that, pursuant to Erler, the PKPA does not apply

to his petition for modification of custody. His reliance on

Erler, however, is misplaced.

In Erler, the parties' marriage was dissolved by a Montana

district court in Missoula County and the mother was granted sole

custody of the parties' minor children. The mother and children

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subsequently moved to Seattle, Washington and, thereafter, the

father moved to modify custody in the district court in Missoula

County. Erler, 862 P.2d at 13. On appeal, we affirmed the

district court's determination that it did not have subject matter

jurisdiction under the PKPA, concluding that the PKPA did not apply

because Montana was the only state involved in the custody dispute.

Erler, 862 P.2d at 16.

Here, Yancy petitioned a Montana court for modification of the

Utah court's child custody determination regarding Megan. Thus,

unlike in Erler, two states are involved in this custody dispute.

The PKPA was enacted by Congress to address such a situation and to

prevent the issuance of conflicting and competing custody decrees

in sister states. Erler, 862 P.2d at 16. We conclude, therefore,

that the PKPA is applicable here. Accordingly, we turn to the

issue of whether the District Court erred in concluding that it did

not have subject matter jurisdiction to modify custody under the

PKPA.

B. SUBJECT MATTER JURISDICTION UNDER THE PKPA

The PKPA generally requires the courts of a state to enforce--

and decline to modify--child custody determinations made by the

courts of other states. 28 U.S.C. 5 1738A(a). A specific

exception to the general rule authorizes a court to modify a child

custody determination made by a court in another state when two

requirements are satisfied: (1) the court has jurisdiction to make

a child custody determination; and (2) the court of the other state

n o longer has jurisdiction or has declined to exercise

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jurisdiction. 28 U.S.C. § 1738A(f).

(1) Analysis of Montana Jurisdiction

Under the first requirement of 28 U.S.C. § 1738A(f), a Montana

district court must have jurisdiction to make the child custody

determination pursuant to Montana law. & 28 U.S.C. §

1738A(f) (1). Since the custody dispute in this case has interstate

ramifications, Montana's version of the UCCJA governs whether a

Montana district court has jurisdiction to make a custody

determination under Montana law. & §§ 40-7-101through 40-7-125,

MCA. Section 40-7-104, MCA, provides that " [tl he jurisdictional

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

Section 40-4-211(l), MCA, sets forth four alternative bases

under which a Montana district court has jurisdiction to "make a

child custody determination by initial or modification decree."

Because the statute is written in the disjunctive, only one of the

stated bases need exist in order for a Montana court to have

jurisdiction under Montana law. The District Court addressed each

alternative and concluded that it did not have jurisdiction to make

a custody determination under § 40-4-211(l), MCA. Given the facts

of this case, it is appropriate to limit our review to the District

Court's findings and conclusion under the § 40-4-211(1)(b), MCA,

basis for jurisdiction.

Section 40-4-211, MCA, provides in pertinent part:

(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:

(bj it.is in the best interest of the child that a court

of this state assume jurisdiction because:

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(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 . . . .

The District Court found that neither the "significant connection"

factor referenced in § 40-4-211(l) (b) (i), MCA, nor the "substantial

evidence" factor referenced in § 40-4-211(1)(b) (ii), MCA, was

satisfied in this case. Based on those findings, the District

Court concluded that it did not have jurisdiction pursuant to § 40-

4-211(1) (b), MCA, to make a custody determination.

We review a district court's findings of fact to determine

whether the findings are clearly erroneous. In re Marriage of

Brownell (1993), 263 Mont. 78, 81, 865 P.2d 307, 309 (citation

omitted). A court's findings are clearly erroneous if they are not

supported by substantial evidence, the court misapprehends the

effect of the evidence, or our review of the record convinces us

that a mistake has been committed. Marriage of Brownell, 865 P.2d

at 309 (citation omitted). We review a district court's

conclusions of law to determine if the court's interpretation of

the law is correct. In re Marriage of Kovash (1995), 270 Mont.

517, 521, 893 P.2d 860, 863 (citation omitted).

The District Court found that "[tlhere are not significant

contacts with Montana I1 and did not further elucidate. Although the

District Court used the language "significant contacts," it

apparently was referring to the "significant connection" factor

contained in 5 40-4-211(l) (b) (i), MCA; as set forth above, that

statutory subsection, as it pertains to this case, requires that

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Megan and either Yancy or Pamela have a significant connection with

Montana.

Here, Yancy lives and works in Montana and, as a result,

clearly has a significant connection with this state. Indeed,

Pamela does not dispute Yancy's significant connection with Montana

and the court did not find otherwise. With regard to Megan's

connection to Montana, the record reflects that she resided in

Montana for nearly three months almost immediately preceding

Yancy's petition. In addition, she has visited Montana on numerous

occasions and for varying periods of time since the parties'

divorce. Moreover, the record indicates that Megan's paternal

grandmother lives in Montana.

Pamela argues that "[tlhere is clearly sufficient evidence in

the record to support the District Court's determination" and, in

support of her argument, sets forth facts of record indicating that

Megan has a significant connection with Utah. However, evidence

that Megan has a significant connection with Utah does not equate

to a lack of a significant connection with Montana.

We note that the District Court's ultimate finding that

‘I [tl here are not significant contacts with Montana" is

irreconcilable with its underlying findings regarding Megan's, and

even Pamela's, connection with Montana. For example, the court

found that Yancy and Pamela "both agree that [Pamela and Meganl

resided in Montana from January, 1995 until March, 1995." The

court further found that Pamela opened a bank account in Montana in

January of 1995 and that Pamela and Megan spent "periods of 1994"

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in Montana. Thus, the District Court's finding that there are not

significant "contacts" with Montana is not supported by substantial

evidence and is clearly erroneous.

In light of the District Court's multiple findings regarding

Pamela and Megan's connection with Montana and the evidence of

record as set forth above, it is clear that Megan had a significant

connection with Montana as required by § 40-4-211(l) (b) (i), MCA.

As previously stated, the parties do not dispute that Yancy has a

significant connection with Montana and the District Court did not

find otherwise. Thus, the additional § 40-4-211(l) (b) (i), MCA,

requirement that one of the contestants also have a significant

connection with Montana is satisfied in this case.

The District Court also found that there is not substantial

evidence in Montana concerning Megan's present or future care,

protection, training and personal relationships. Pamela argues

that the District Court's finding in this regard is supported by

substantial evidence because she and Megan "were only in Montana

for a short period of time.” However, evidence that Megan and

Pamela were only in Montana for a "short period of time" does not

necessarily mean that substantial evidence regarding Megan's

present and future care, protection, training and personal

relationships does not exist in Montana. Moreover, § 40-4-

211(1) (b) (i), MCA, which contains the foregoing "substantial

evidence" prerequisite to jurisdiction, is not time-related.

The record contains the following evidence which exists in

Montana and which the District Court did not address in ultimately

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finding that there is not substantial evidence in Montana regarding

Megan's present and future care, protection, training and personal

relationships. Officer Silk It Wak Rivera, the highway patrol

officer who investigated Pamela and Megan's accident, testified

about the details of the accident and Pamela's DUI citation.

Marilyn Kober, the Stillwater County Justice of the Peace,

testified that Pamela had alcohol on her breath when she appeared

on her DUI charge. Moreover, the record reflects that Pamela and

Yancy's neighbors and friends in Nye, Montana, have information

about the parties' roles in caring for Megan. For example, Cleo

Eberhart (Cleo) testified that she did not have any concerns about

Pamela's capabilities as a mother and that she thought Pamela was

a good mother. Cleo further testified that Pamela was Megan's

primary caregiver. Finally, as previously stated, Yancy and his

mother--who is Megan's paternal grandmother--live in Montana. In

light of the foregoing evidence, we conclude that the District

Court's finding that there is not substantial evidence in Montana

regarding Megan's present or future care, protection, training and

personal relationships for jurisdictional purposes under § 40-4-

211(1) (b) (ii), MCA, is not supported by substantial evidence and,

therefore, is clearly erroneous.

Based on our conclusions that the District Court's

jurisdictional findings under § 40-4-211(l) (b), MCA, are clearly

erroneous, we hold that the District Court erred in concluding that

it did not have jurisdiction under § 40-4-211(l), MCA, to make a

custody determination.

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(2) Analysis of Utah Jurisdiction

The fact that Montana has jurisdiction under its own laws to

make a custody determination does not, however, resolve the issue

of whether the District Court has jurisdiction under the PKPA to

modify the original Utah custody determination. In order to do so,

the second requirement of 28 U.S.C. 5 1738A(f) also must be met;

namely, that Utah no longer has jurisdiction or has declined to

exercise such jurisdiction to modify its earlier custody

determination. See 28 U.S.C. § 1738A(f) (2). Yancy did not file a

motion or petition for modification of custody in Utah and the

parties agree that Utah has not declined to exercise jurisdiction.

Therefore, our review is limited to the District Court's conclusion

that Utah did not lose jurisdiction over matters relating to

Megan's custody.

Utah's version of the UCCJA, set forth at Title 78, Chapter

45c of the Utah Code Annotated, governs whether Utah district

courts have jurisdiction. Section 78-45c-3, Utah Code Ann., like

§ 40-4-211(l), MCA, sets forth four alternative bases under which

a Utah district court would have jurisdiction to "make a child

custody determination by initial or modification decree." The

District Court found that, when this proceeding was commenced in

April of 1995, Utah was Megan's home state. Based on that finding,

the court concluded that "Utah did not lose its jurisdiction."

Under § 78-45c-3(l) (a) (i), Utah Code Ann., Utah has

jurisdiction if Utah was, in fact, Megan's home state at the time

Yancy commenced these proceedings. Section 78-45c-2(5), Utah Code

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Ann., defines "home state" as "the state in which the child

immediately preceding the time involved lived with his parents [or]

parent . . for at least six consecutive months. . . .'I Yancy and

Pamela agree that Megan lived in Montana with them from January

until sometime in March of 1995. Therefore, the District Court's

finding that Utah was Megan's home state is not supported by

substantial evidence and is clearly erroneous.

Notwithstanding the District Court's erroneous finding,

however, the court's conclusion that Utah has jurisdiction over

matters involving Megan's custody is not necessarily incorrect. It

is well-established that we will affirm a district court's decision

which reaches the right result, regardless of the court's

reasoning. See Farmer's Union Cent. Exch. v. Department of Revenue

(1995) I 272 Mont. 471, 475, 901 P.2d 561, 563; Bohmer v. Uninsured

Employers' Fund (1994), 266 Mont. 289, 291, 880 P.2d 816, 817.

Under Utah law, as in Montana, another basis for jurisdiction

over custody determinations is that it is in the child's best

interests for Utah to assume jurisdiction because the child and at

least one contestant have a significant connection with Utah and

there exists in Utah substantial evidence regarding the child's

present and future care, protection, training and personal

relationships. & § 78-45c-3(l) (b), Utah Code Ann. We note that

the District Court did not address this basis for Utah

jurisdiction, presumably because it concluded that Utah was Megan's

home state.

The record contains the following evidence regarding Pamela

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and Megan's connection with Utah. Megan was born in Utah and has

lived there most of her life, with the exception of approximately

three months in which she lived in Montana and periods of time in

1994 when she visited Montana. After leaving Montana in March of

1995, Pamela and Megan returned to Utah and lived with Pamela's

mother and Megan's maternal grandmother, Ivy Northlander.

Additionally, Pamela's other children, who are Megan's halfsiblings, live in Utah. Thus, the record reflects that both Pamela

and Megan have a significant connection with Utah.

The record also reflects that substantial evidence exists in

Utah concerning Megan's present and future care, protection,

training and personal relationships. For example, Lonni Watson, a

friend of Pamela's in Utah, testified that she did not have any

concerns about Pamela's ability to care for Megan and that Pamela

"spoils [Meganl rotten." Additionally, Pamela's mother, Ivy,

testified regarding Pamela's relationship with Megan. IVY

testified that Pamela and Megan were living with her in Utah and

that Megan was well cared for by Pamela.

In light of the foregoing evidence, we conclude that, at the

time Yancy petitioned the District Court for modification of Utah's

custody determination, Utah had jurisdiction to make a child

custody determination under § 78-45c-3(l) (b), Utah Code Ann. Thus,

we hold that the District Court's conclusion that Utah did not lose

jurisdiction is correct. We observe, in this regard, that our

conclusions that Montana and that Utah both have jurisdiction under

their respective laws to make a child custody determination

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illustrate the problems regarding concurrent jurisdiction which can

arise under the UCCJA and which were remedied by enactment of the

PKPA.

Since Utah has jurisdiction to make a custody determination,

the requirement of 28 U.S.C. § 1738A(f) (2)--that Utah no longer has

jurisdiction to make a child custody determination or declined to

exercise such jurisdiction--is not satisfied. Thus, notwithstanding that the requirement of 28 U.S.C. § 1738A(f)(i)--that

Montana has jurisdiction to make a custody determination under

Montana law--is satisfied, the District Court was not authorized to

modify the original Utah custody determination regarding Megan

under 28 U.S.C. § 1738A(f). Accordingly, we hold that the District

Court correctly concluded that it did not have subject matter

jurisdiction under the PKPA to modify Utah's original custody

determination in this case.

Affirmed. i

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