No. 88-262 

IN THE SUPREME COURT OF THE STATE OF MONTANA 

1988 

IN RE THE MARRIAGE OF 

JAN M. HARPER (DEGRAFF) , 

Petitioner and Appellant, 

and 

WILLIAM B. HARPER, 

Respondent and Respondent. 

APPEAL FROM: District Court of the Eighth Judicial District, 

In and for the County of Cascade, 

The Honorable John McCarvel, Judge presiding. 

COUNSEL OF RECORD: 

For Appellant: 

Marcia Birkenbuel, Great Falls, Montana 

S r- 

[L- 1 : a . . Joan E. Cook, Great Falls, Montana 

LLI 

Submitted on Briefs: 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 former husband 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 

reverse and remand. 

Jan presents three issues for review: 

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 conditioning William's 

obligation to pay child support upon Jan's compliance with 

the court's visitation 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 Falls with 

William and their minor child, William B. Harper 11. Custody 

of the child was awarded to Jan. William was granted 

"reasonable" visitation rights specified in the decree, and 
ordered 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 

telephone number when 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 

know where he was. 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 a visitation request from William while living in 

New York in 1982, because she wanted to take the child to a 

funeral being held out of the state. 

On March 5, 1988, William was served with 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-liam then 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 hearing was held on March 22, 1988, at which Jan made 

a "special appearance" challenging the court's iurisdiction 

to determine the visitation issue. She also sought two court 

orders: one to require William to pay 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 or 
lose child support was issued on March 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. 

Review may he had only on a writ of certiorari by 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 contempt by the District Court. The 

court's order directed her to honor the visitation terms of 

the original decree in this case, but did not find her in 

contempt of court or impose a contempt penalty. The order is 

appealable to this Court. 

Jan argues that under the provisions of the Uniform 

Child Custody Jurisdiction Act (UCCJA) as adopted Zn Montana, 

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 purposes of 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 requirements under the UCCJA: 

(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 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 

(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 

state and: 

(F) has been 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 in his best 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 confer 
jurisdiction 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 a parent, by filing a petition: 

(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 requirements did not apply to this 

action. The court relied instead on its continuing 

jurisdiction to enforce the original decree. 

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 set out 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. 

This determination is within the court's discretion. Bolton, 

690 P.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 in Montana to deal with custody proceedings 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 is William's right of 

visitation. 

We remand for a determination of jurisdiction under the 

test applied in Rolton. If on remand the court determines it 

has jurisdiction and decides to exercise that jurisdiction, 

we feel compelled to note two factors that should be 

considered in the court's decision on 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 visitation granted 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 jurisdiction applies to child support as 

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 effectively petitions for an increase in child support. 

Because William resides in Montana, the court has in personam 

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