No. 88-262

INTHE SUPREME COURTOF THE STATEOF MONTANA
1988

INRE THEMARRIAGE OF JANM. HARPER (DEGRAFF)

### , PetitionerandAppellant, and

WILLIAM B. HARPER, Respondent and Respondent.

APPEAL FROM: District Courtof the Eighth Judicial District, In and for the County of Cascade, TheHonorable JohnMcCarvel,Judgepresiding.
COUNSEL OF RECORD:

ForAppellant: Marcia Birkenbuel, GreatFalls,Montana S r-

[L- 1 : a
.

### . Joan E. Cook,Great Falls,Montana LLI

Submitted onBriefs: Sept. 23, 1988 Decided: December 1, 1988
Filed:

Clerk

### Mr. Justice R. 

### C. Mcnonough delivered the Opinion of 

### the Court.

This appeal involves disputed child visitation rights under a dissolution decree. Jan M. Degraff, f

### .k.a. Jan M. Harper (Jan),appeals from an order of the District Court of the Eighth Judicial District, Cascade County. The District Court ordered: (1)Jan must keep her formerhusband William B. 

### Harper (William) 

### informed of the current address and telephone number for herself and the couple's minor child;

(2)

### Jan must allow William unrestricted telephone access to 

### the child and reasonable visitation consistent with the original dissolution decree in this case; and (3) 

### should Jan continue her attempt to prevent William from speaking with, visiting or knowing the whereabouts of 

### the child, William will be relieved of his obligation to 

### pay child support. We

reverseand remand. Janpresents three issues forreview: 1. Did the Montana District Court have inrisdiction to make a determination regarding visitation with the parties' minor child? 2. 

### Did the District Court err in conditioningWilliam's obligation to pay child support upon Jan's compliance with the court'svisitation order? 3. 

### Did the District Court err in refusing to consider Jan's request for an increase in child support and for an order directing payment of the child's medical and drug expenses? In 1979, Jan obtained a decree dissolving her marriage to William. At the time, she was living in Great Fallswith William and theirminor child,William B. 

### Harper 11. 

### Custody of the child was awarded to Jan. William was granted "reasonable" visitation rights specified in the decree, andordered to pay child support of $125 per month. Jan subsequently remarried, and in 1981 she moved with the child and her new husband to New York. She testified before the District Court in the present action that she informed William in advance of her intent to move to New York. William testified that he was not given an address or telephonenumberwhen Jan left. Jan and the child left New York in 1983 and moved to Colorado, where they still reside. She did not advise William of this move because, according to Jan, she did not knowwhere hewas. William also moved after the dissolution, living in Washington and Idaho before returning to Great Falls,where he is currently a resident. William maintains he has been denied visitation since 1981, although he has tried to locate Jan and the child several times. Jan admits she refused avisitation request fromWilliam while living in New York in 1982,because shewanted to take the child to a funeralbeing held out of the state. On March 5, 1988,William was servedwith process in an action brought by Jan under the Uniform Reciprocal Enforcement of Support Act (URESA) seeking past due child support pavments. Having thus discovered where Jan was living, Wil-liamthen moved the District Court for an order directing Jan to appear and show cause why she should not he held in contempt for failing to allow visitation under the original decree. The order was issued on March 10, 1988. A hearingwas held on March 22, 1988,atwhich Janmade

a "special appearance" challenging the court's iurisdiction to determine the visitation issue. She also sought two court orders: one to require William topay her attorney's fees and costs, and a second to modify child support. The court refused to hear testimony on Jan's request for modification 

### of support. The order directinq Jan to allow visitation orlose child supportwas issued onMarch 24, 1988. This appeal followed. Flilliam raises a threshold question in his brief. He argues that Jan is attempting to appeal a contempt order, which is not allowed. Section 3-1-523,MCA, states contempt orders are final and conclusive, and may not be appealed. Reviewmay hehad only on awrit of certiorariby this Court. FJe have held this statute applicab1.e in dissolution cases. In re Marriage of O'Neill (1979), 184 Mont. 415, 603 P.2d

Jan was not held in contemptby the DistrictCourt. The court's order directed her to honor the visitation terms of the original decree in this case, but did not find her 

### in contemptof court or impose a contemptpenalty. The order is appealable to thisCourt. Jan argues that under the provisions of the Uniform Child Custody Jurisdiction Act (UCCJA)as adoptedZnMontana, the District Court was without jurisdiction to render its order. Montana's version of the UCCJA is found at S5 40-7-101, et seq., MCA. Section 40-7-102, MCA, lists the general purposesof the UCCJA, including:



# ... (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; Under 5 40-7-103,MCA,visitation rights are included in the definition of matters encompassed by a custody proceeding. The specific section cited in support of Jan's argument is 5 40-7-104,MCA. That section is entitled "Jurisdiction,"and incorporates 

### 5 40-4-211, MCA, to set forth the jurisdictional requirementsunder theUCCJA: (1) A court of this state competentto 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 commencementof 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 (h) 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 stateand: (F) hasbeen abandoned;or (ii)it is necessary in an emergency to protect him because he has been subiected 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 (1)(a), (1)(b)

## , or (1)(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 inhisbest interest that the court assume jurisdiction. (2) Except under subsections (1)(c) and 

### (1)(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 conferjurisdiction on a court of this state to make a child custody determination. (3) Physical presence of the child, while desirable, is not a prerequisite for jurisdiction to determine his custody. (4) A child custody proceeding is commenced in the district court: (a) by aparent,by filing apetition: (i) for dissolution or legal separation; or (il)for custody of the child in the county in which he is permanently resident or found; 

# .

# .. At the hearing held pursuant to the show cause order, the District Court held these requirementsdid not apply to this action. The court relied instead on its continuing jurisdictionto enforce the originaldecree. We addressed the question of continuing jurisdiction in relation to the UCCJA in In re Marriage of Bolton (Mont. 1984), 690 P.2d 401, 41 St.Rep. 1698. While Solton involved

a modification of custody, the distinction between modification and enforcement 

### of custody in a case such as this is superficial. Preserving such a distinction would defeat the purposes setout in

### 5 40-7-102,MCA. In Bolton,we applied a two-part test for the exercise of jurisdiction. The first step requires that the jurisdictional requirements set out above be met before a court can assert continuing jurisdiction in a custody proceeding. If the requirements are met, the second step requires that the court determine whether it should exercise its jurisdiction using the criteria found at 

### 5 40-7-108,MCA. Thisdetermination iswithin the court'sdiscretion. Bolton, 690P.2d at 405. We hold the District Court was incorrect in concluding that the UCCJA jurisdictional requirements did not apply to this case. Section 40-7-107, MCA, states the UCCJA was enacted inMontana to dealwith custodyproceedings involving residents of different states. Under 40-7-103, MCA,custody proceedings settle questions of visitation rights. Jan and the child reside in Colorado, William resides j.n Montana and the subject of this action isWilliam's right of visitation. We remand for a determination of jurisdiction under the test applied in Rolton. If on remand the courtdetermines it has jurisdiction and decides to exercise that jurisdiction,

we feel compelled to note two factors that should be considered in the court's decisionon the merits. First, we note the final sentence of 5 40-5-124, MCA: The determination or enforcement of a duty of support owed to one obligee is unaffected by any interference by another obligee with rights of custody or visitationgranted by the court. Conditioning the obligation to pay child support upon non-interference with visitation rights would he error under this statute. Second, once the court asserts continuing jurisdiction, it can hear argument on the question of child support. Continuing jurisdictionapplies to child supportas well as custody. In re Marriage of Ensign (Mont. 1987), 739 P.2d 479, 44 St.Rep. 1146. Furthermore, the court can still address the child support issue if it determines it does not have jurisdiction to hear the visitation issue. Modification of child support is not subject to the jurisdictional strictures imposed on custody proceedings under the UCCJA. Child support provisions in a dissolution decree can be modified under 

### 5 40-4-208, MCA. Jan's motion in response to the show cause order effectivelypetitions for an increase in child support. Because William resides in Montana, the court has inpersonam jurisdiction over him and can increase his obligation of child support if it so decides. See In re Marriage of Appleton (Mont. 1988)

## , -P.2d 

## , 45 St.Rep. 1959. -Reversed and remanded.

Justices