NO. 84--223 

IN TBE SUPREME COURT OF THE STATE OF MONTANA 

1984 

IIJ THE MARRIAGE OF 

DALE ELLYS LANCE, 

Petitioner & Respondent, 

and 

JOHN FESLER LMJCE, 

Respondent and Appellant. 

IN RE THE CUSTODY OF 

BRADLEY JOHN LANCE AND CHRISTINA 

DALE LANCE. 

APPEAL FROM: District Court of the Fourth Judicial District, 

In and for the County of Missoula, 

The Honorable Michael Keedy, Judge presiding. 

COUNSEL OF RECORD: 

For Appellant: 

John F. Lance, pro se, Florence, Montana 

For Respondent : 

Harris & Harris; Mark W. Harris, Evanston, Wyoming 

Ferguson & Mitchell; Carol A. liIitchel1, Missoula, 

Montana 

-- 

Submitted on Briefs: August 30, 1984 

Decided: October 31, 1984 

Filed: 

OCT 3 1 1984 

-- - Clerk 
The Fourth Judicial District Court, County of 

Missoula, dismissed a custody modification petition and 

motion for placement of children in a foster home for lack 

of subject matter jurisdiction. The petitioner below, John 

Fesler Lance, appeals. We affirm the decision of the 

District Court. 

The marriage of Dale Ellys Lance (now Willavize) and 

John Fesler Lance, the father and appellant, was dissolved 

by dscree in the Fourth Judicial District on March 29, 1979. 

Custody of the minor children of the marriage, Bradley and 

Christina, was awarded to Dale Lance, the mother and 

respondent. In late June or early July of 1982, the mother, 

her new husband, and the two children moved to Wyoming, 

where the husband had secured a position as a high school 

principal. Since that time, the mother, her husband and the 

two children have continued to reside in Wyoming, where Brad 

and Christina attend school. 

On March 3, 1983, the father, a pro se litigant, filed 

a petition for modification of the custody provision of the 

1979 decree of dissolution. On June 30, 1983, the father 

filed a second document, captioned "Motion for Placement of 

Children in Foster Home," in which the father requested that 

Brad and Christina be removed from Wyoming and placed in a 

foster home near his residence in Florence, Montana. The 

motion asked that the children be kept in a foster home 

until the March, 1983 petition for modification had been 

ruled upon. Because the motion was brought under section 

40-4-219, MCA, Montana's custody modification statute, we 

will hereafter refer to it as a petition for custody 
modification. The petition to modify custody by placing the 

children in a foster home was heard on September 22, 1983. 

On that date, the mother moved the court to dismiss both 

custody modification petitions for lack of subject matter 

jurisdiction. The jurisdictional issue was argued by the 

parties at the hearing, and the court also set a briefing 

schedule on that issue. Briefs were submitted by both 

parties, and on February 14, 1984, the District Court issued 

its memorandum order dismissing both petitions for lack of 

jurisdiction. The father filed a "Motion for 

Reconsideration" of the District Court's order on February 

27, 1984, along with a supporting brief which was filed on 

March 5, 1984. The motion for reconsideration was denied by 

the court on March 16, 1984, and the father appeals. 

Succinctly stated, the father's first issue on appeal 

is whether the District Court erred in entertaining the 

mother's motion to dismiss, which was made on the same day 

as the hearing on the father's petitions for custody 

modification. 

The father argues that the mother's motion to dismiss 

for lack of subject matter jurisdiction was improperly made, 

and therefore should not have been considered by the court. 

According to the father, the motion was defective in that it 

was captioned as a "Response to Motion for Placement of 

Children in Foster Home," and contained no "formal" motion 

to the court. 

The mother's "Response" was filed in District Court on 

September 22, 1983, and stated in paragraph I, "[slaid 

motion must be dismissed because this Court lacks personal 

jurisdiction and jurisdiction of the subject matter of 
custody and visitation, much less foster care placement, 

pursuant to sections 42-4-211 and 42-2-108, Y.C.A." 

Paragraph IV concludes, "[w]herefore, Petitioner requests 

the Court dismiss Respondent's petition for modification and 

Motion for Placement in Foster Home. . . " The mother also 

raised her jurisdictional challenge orally at the September 

22, 1983 hearing on the father's custody modification 

petitions. 

Rule 12(h)(3), M.R.Civ.P., provides that "[wlhenever 

it appears by suggestion of the parties or otherwise that 

the court lacks jurisdiction of the subject matter, the 

court shall dismiss the action." (Emphasis provided. ) We 

find that the mother's allegations of lack of subject matter 

jurisdiction were entirely adequate under Rule 12(h)(3) to 

bring the issue before the District Court. 

The father also maintains that the mother's "Response" 

was defective because it contained two miscited statutes. 

This argument lacks merit because correct statutory 

citations were given in the mother's supporting brief which 

was filed with her "Response." It is also clear that the 

mother filed a document entitled "Notice of Corrections of 

'Response to Motion for Placement of Children in Foster 

Home, I" on October 7, 1983, a copy of which was mailed to 

the father. The "Notice of Corrections" absolved the 

clerical errors in the original document. 

The father further contends that under section 

40-4-216 (I), MCA, which states that I' [c] ustody proceedings 

shall receive priority in being set for hearing," the trial 

court should have ruled on the custody matter before 

deciding the issue of whether it had subject matter 
jurisdiction. Similarly, the father argues that because the 

court assumed jurisdiction in presiding over the September 

22, 1983 hearing on the custody modification petitions, it 

was precluded from dismissing the case for lack of subject 

matter jurisdiction. Regarding both of these arguments, we 

simply note that it is a fundamental axiom of our legal 

system that the issue of subject matter jurisdiction may be 

invoked at any time in the course of a proceeding. Larrivee 

v. Norigeau (1979), 184 Mont. 187, 192, 602 P.2d 563, 566, 

cert. den. 445 U.S. 964, 100 S.Ct. 1653, 64 L.Ed.2d 240; 

Corban v. Corban (1972), 161 Mont. 93, 96, 504 P.2d 985, 

987. Furthermore, once the issue is raised and a court 

determines that there is a lack of subject matter 

jurisdiction, it can take no further action in the case 

other than to dismiss it. Rule 12 (h)(3), P4.R.Civ.P. 

Because the mother challenged the District Court's 

jurisdiction on September 22, 1983, the same day as the 

hearing on the father's petitition for custody modification, 

the father maintains that he had neither notice nor an 

opportunity to be heard on the jurisdictional issue, as 

required by section 40-7-105, MCA. Yet the record reveals 

that not to be the case, for the father was provided with an 

opportunity to respond to the jurisdictional challenge at 

the hearing, and did respond at length. Furthermore, the 

court refused to rule on the issue of jurisdiction until 

both parties were given a mutually satisfactory amount of 

time in which to brief the court. Indeed, the court was 

obviously concerned with the father's pro se status and 

repeatedly addressed the father's time constraints in 

setting a briefing schedule, as the following exchange from 
the transcript reveals: 

"THE COURT: Well, Mr. Lance, yes, it's 

apparent to the Court that you have done 

a tremendous amount of work here and I 

will do everything I can to accommodate 

your needs and your schedule. Do you 

feel that I have given you enough time to 

file your responsive brief on the 

jurisdictional issue? 

"MR. LANCE: Yes, there is no problem with 

that at all." 

The father then briefed the court extensively on the 

jurisdictional issue, filing over 140 pages of discussion 

and over forty exhibits with the District Court. We rule 

that the father had ample notice and opportunity to be heard 

to satisfy his rights under both the Fourteenth Amendment to 

the United States Constitution, and section 40-7-105, MCA. 

The father's second principal issue on appeal is 

whether the District Court committed reversible error in 

dismissing the father's petition for custody modifica.tion 

for lack of subject matter jurisdiction. In its carefully 

drafted memorandum order of February 14, 1984, the District 

Court analyzed the jurisdictional. issue by reviewing the 

requirements of section 40-4-211, MCA. 

Section 40-4-211 is incorporated into the Montana 

Uniform Child Custody Jurisdiction Act (MUCCJA) by section 

40-7-104, MCA, and is the "premier jurisdictional hurdle 

which must be overcome before a district court may modify a 

child custody decree with interstate implications." In re 

the Marriage of Bolton (Mont. 1984), P.2d I I 

41 St.Rep. 1698, 1701. See also Wenz v. Schwartze (1979), 

183 Mont. 166, 178, 598 P.2d 1086, 1093. 

In pertinent part, section 40-4-211, MCA provides as 

follows: 
"(1) R 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 state 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 

"(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 

"(d)(i) no other state has jurisdiction 

under prerequisites substantially in 

accordance with subsections (l)(a), 

(l)(b), or (l)(c) or 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." 

A district court must first determine that "one of the 
four disjunctive requirements of section 40-4-211 [l] , MCA, 

be satisfied" before assuming jurisdiction to make a custody 

determination by modification decree. Bolton, P.2d at 

, 41 St.Rep. at 1700. 

In the case at bar, the District Court found that it 

could not take jurisdiction under section 40-4-211(1)(a) 

because, according to uncontradicted evidence, when the 

father filed his first petition for modification on February 

28, 1983, the children had lived in Wyoming with their 

mother for over seven months. Thus, under the statute, 

Wyoming was the children's home state. 

We agree with the District Court's findings. Section 

40-4-211(1)(a), MCA provides that jurisdiction exists if 

Nontana is the child's home state when a custody proceeding 

is first initiated, or had been the child's home state 

within six months before the custody proceedings commenced. 

Section 40-7-103, MCA, defines "hone state" as: "[Tlhe state 

in which the child, immediately preceeding the time 

involved, lived with his parents, a parent, or a person 

acting as parent, for at least G consecutive months. . . " 

The record indicates that both parties agree that the 

mother and two children moved from Montana to Wyoming 

sometime in late June or early July of 1983, at least seven 

months before the father's first petition was filed. By 

definition, Wyoming rather than Montana, was the home state 

of Brad and Christina Lance on the date that their father 

filed his first custody modification petition. 

The father, however, urges us to toll the six month 

period used to determine "home state" status in this case 

because: (1) no notice was given the District Court by the 
mother of her move to Wyoming, as required by an August 27, 

1981 order of the District Court; and (2) the father was 

incarcerated for most of the period from May 27, 1982, 

through August 30, 1982, and was thus unable to locate his 

children's new residence. 

'In Pierce v. Pierce (1982), 197 Mont. 16, 640 ~.2d 

899, we rejected the argument that the six month "home 

state" period should be tolled where a non-custodial parent 

violated a custody decree by refusing to return a child from 

Montana to the decree state of Kentucky: 

"This Court is not persuaded by 

respondent's contention that during the 

time a child is present in a state as a 

result of acts in violation of an 

existing custody decree, calculation of 

the six month period needed to establish 

'home state' jurisdiction should be 

tolled. Cf. Freeman v. Freeman (Ky. 

1977), 547 S.W.2d 437. Neither the 

language nor the legislative history of 

the 'home state' definitional subsection 

support such a conclusion. See 

Commissioner's Note, 9 U.L.A. 123 (master 

ed. 1979)." Pierce, 197 Mont. at 28, 

f.n. 2, 640 P.2d at 904, f.n. 2. 

Under Pierce, it would have been erroneous for the court in 

the instant case to toll the six month "home state" period, 

where the custodial parent removed the children from the 

decree state. And we will not apply the equitable remedy of 

tolling the six month period required to establish 

jurisdiction under the "home state" provision merely beta-use 

the father was p- --- - k? incarcerated a 

S&4. c9-l&eFL &&*,/wcG. /< Jb g./ HA- - The father has not been prevented in an 4 wayb f* 

from bringing his cause of action (petition for custody 

modification) as a result of his incarceration. But he must 

establish the six month "home state" period without benefit 

of tolling. To rule otherwise would defeat the legislative 
purpose of MUCCJA. See section 40-7-102, MCA. We find that 

the court correctly refused to assume jurisdiction under 

section 40-4-211(1)(a), MCA. 

The trial court also declined jurisdiction under 

section 40-4-211(1)(b), MCA. Under that section, a court 

may not take jurisdiction unless it finds that the child and 

at least one contestant maintain a significant connection 

with Montana, - and that there exists substantial evidence in 

Montana of the child's present or future care, protection, 

training and personal relationships. Although granting that 

the father and arguably the two children had significant 

connections with Montana, the District Court found that 

substantial evidence of Brad and Christina's present or 

future care, etc. did not exist in Montana. 

The father argues that because the children spent most 

of their lives prior to June of 1982 in Montana, the 

substantial evidence requirement has been satisfied. This 

assertion ignores the plain meaning of section 

40-4-211(1)(b)(i), which explicitly focuses on "present or 

future care, protection, training and personal 

relationships. " (Emphasis provided. ) As of the date the 

District Court signed its memorandum order, Brad and 

Christina had lived in Wyoming for at least a year and 

one-half. During this time they attended school in Wyoming. 

Their teachers reside in Wyoming. They live with their 

mother and her new husband in Wyoming, where he is principal 

of a local high school. The trial court found no evidence 

on the record to indicate that this situation will not 

continue. We agree, and find that the court correctly 

refused to assume jurisdiction under section 40-4-211(1)(b), 
MCA. 

The court then found that it lacked jurisdiction under 

section 40-4-211(1)(c), MCA, based on the uncontested fact 

that neither of the two children were physically present in 

Montana, as required by the statute. In addition, the court 

found that the children had not been threatened with 

mistreatment, neglect or abuse, a further requirement of 

section 40-4-211(1)(c). The father apparently believes that 

section 40-4-211(1)(c) should apply as a basis for extending 

jurisdiction because the children have allegedly been 

subjected to mistreatment as a result of this long and 

onerous litigation. We simply note that section 

40-4-211(1)(c) requires that the child or children must be 

physically present in Montana at the time in order for a 

Montana district court to assume jurisdiction. That was not 

the case here, and we affirm the trial court's conclusion 

regarding section 40-4-211(1)(c). 

Finally, the trial court determined that it could not 

take jurisdiction under section 40-4-211(1)(d), the last of 

the alternative bases con£ er ring jurisdiction in child 

custody matters. Under section 40-4-211(1)(d), MCA, a 

Montana district court has jurisdiction upon a finding 

either that no other state had jurisdiction under a similar 

statutory scheme, or that another state had declined to 

exercise jurisdiction. Wyoming adopted the UCCJA in 1973, 

including Wyo. Stat. section 20-5-104, an identical statute 

to section 40-4-211, MCA. Wyoming had jurisdiction to hear 

this custody modification petition because, as discussed 

above, Wyoming was the "home state" of Brad and Christina at 

the time the father's first petition was filed. Wyo. Stat. 
section 20-5-104(a). And there is no indication that 

Wyoming "has declined to exercise jurisdiction on the ground 

that this state [Montana] is the more appropriate forum to 

determine custody of the child." Section 40-4-2ll(l)(d)(i), 

MCA. To the contrary, the father states that the Honorable 

John D. Troughton, Third Judicial District, Evanston, 

Wyoming, wrote a letter to the father on March 16, 1984, 

declining jurisdiction over this case. We first observe 

that the letter was never ma.de a part of the record, either 

at the September 22, 1983 hearing, or in the father's 

voluminous briefs submitted to the District Court 

thereafter. Nor do we find in the record any indication 

whatsoever that any district court of the State of Wyoming 

has formally declined jurisdiction for any reason in this 

matter. Finally, we note that there were - two letters sent 

to the father from Judge Troughton: one dated March 1, 1984, 

and the other March 16, 1984, both of which were included in 

the father's briefs to this Court. In order to provide an 

explanation for Judge Troughton's decision, we reprint below 

the text from both letters: 

March 1, 1984 

Dear Mr. Lance: 

I am a District Judge. The State of Wyoming pays the sole 

compensation I am to receive for being a Judge. I am not 

available to be hired for any other purpose. 

I am shocked and astounded beyond my abilities of 

expression. I cannot believe you would send a judge money 

for any reason. Because you have sent money to me, raising 

the appearance of an attempted payoff, you ha.ve left me no 

alternative. Your package, letter and money have been 

turned over to the Uinta County Sheriff and Uinta County 

Prosecuting Attorney for whatever action they deem 

appropriate. 

Sincerely, 
John D. Troughton 

District Judge 

March 16, 1984 

Mr. Mark Harris 

Attorney at Law 

P.O. Box 23 

Evanston, WY 82930 

Mr. John Lance 

Nighthawk Ranch, Box 403 

Florence, MT 59833 

Gentlemen : 

This is to advise you that I will not sit on any case 

involving controversies between John Pesler Lance and Dale 

Lance Willavize, or her husband. 

Sincerely, 

John D. Troughton 

District Judge 

It is evident from reading the two letters in conjunction 

that Judge Troughton removed himself from the case to avoid 

any appearance of impropriety, rather than in deference to 

Montana as a more appropriate state to assume jurisdiction. 

The father has an available forum in Wyoming, and Wyoming is 

the appropriate state to hear this custody modification 

petition. We conclude that the District Court properly 

declined to assume jurisdiction under section 40-4-211, MCA. 

The father also asserts that the District Court erred 

in failing to expeditiously set for hearing the father's 

March 3, 1983 petition for modification. That petition was 

addressed at the September 22, 1983 hearing, and was 

dismissed in the court's order of February 14, 1984. Citing 

section 40-4-216(1), "custody proceedings shall receive 

priority in being set for hearing," the father maintains 

that the court was dilatory in scheduling his petition for 
hearing. Yet a close examination of the record in this case 

indicates that if anyone has engaged in dilatory tactics, it 

has been the father. Between the time his first petition 

was filed on March 3, 1983, and the hearing date on 

September 22, 1983, the father inundated the District Court 

by filing documents such as "objections," "responses" and 

"notices" on an almost daily basis. Within that period he 

filed at least twenty motions demanding widely varying types 

of judicial action, many of which were wholly immaterial to 

the custody modification issue. Significantly, the father 

filed a motion to remove the judge who was in jurisdiction 

at the time his petition was filed. When that motion was 

set for hearing, the father moved to reset the hearing for a 

later date on three separate occasions. The mother opposed 

these extensions, on the grounds that they were dilatory and 

were causing her great expense in retaining local counsel in 

Missoula, Montana. Following a hearing, the Honorable Nat 

Allen was removed from jurisdiction on June 7, 1983. 

The Honorable Michael Keedy, accepted jurisdiction on 

June 8, 1983. Apparently the court then set an attorney's 

conference for August 31, 1983, in order to sort out the 

plethora of pending motions before the court at that time. 

The father moved for a continuance of this attorney's 

conference, once more against the mother's opposition. 

Any delay in consideration of the father's petition 

for custody modification has been caused by his own actions. 

For this reason, and those stated above, the judgment of the 

District Court is affirmed. 

IN THE SUPREME COURT OF THE STATE OF MONTANA 

No. 84-223 

IN RE THE MARRIAGE OF 

DALE ELLYS LANCE, 

Petitioner and Respondent, 

and 

JOHN FESLER LANCE, 

Respondent and Appellant. ************ 

IN RE THE CUSTODY OF BRADLEY 

JOHN LANCE and CHRISTINA DALE LANCE DECC- jsb< 

ORDER STATE: irf E!. A\ i '6 

Petitioner filed a motion pro se to correct a previous 

opinion issued in this matter, October 31, 1984. Petitioner 

requests the deletion of all references to the fact that John 

Fesler Lance was ". . . properly convicted and incarcerated 

for a criminal act . . . " 

IT IS ORDERED: 

The following words contained in the above opinion be 

struck: "properly convicted" and "for a criminal act." That 

portion requested to be changed will now read: " was 

incarcerated . . . " between May 27, 1982 and August 30, 

1982. 

DATED this L' day of December, 1984. 

%4&-W* 

Chief Justice