No. 83-491 

IN THE SUPREME COURT OF THC STATE OF MONTANA 

1984 

IN RE THE P.IARRIAGE OF 

MICHAEL T. CONNOLLY, 

Petitioner and Respondent, 

-vsJUDY RAE CONNOLLY, 

Respondent and Appellant. 

APPEAL FROM: District Court of the First Judicial District, 

In and for the County of Lewis & Clark, 

The Honorable Henry Loble, Judge presiding. 

COUNSEL OF RECORD: 

For Appellant: 

John L. Hollow, Helena, Montana 

For Respondent : 

Jeffrey M. Sherlock; Hull & Sherlock, Helena, 

Montana 

-.- ---- -- 

Submitted on Briefs: January 19, 1984 

Decided: April 19, 1984 

Filed: l,iJ %( 1 3 t984 

Clerk 
Mr. Justice John C. Sheehy delivered the Opinion of the 

Court. 

Judy Rae Connolly appeals from an order of the District 

Court, First Judicial District, Lewis and Clark County, 

modifying the parties' dissolution decree and awarding 

Michael T. Connolly custody of the parties' four minor 

children. 

On November 5, 1-980, the District Court issued a decree 

of dissolution dissolving the marriage of Judy Rae Connolly 

and Michael T. Connolly. The decree of dissolution 

incorporated a property settlement agreement which contained 

provisions relating to the support and custody of the 

parties' four minor children. The parties agreed to a joint 

custody arrangement, with Judy Connolly retaining custody of 

the two younger children and Michael Connolly retaining 

custody of the two older children. It was also agreed that 

the noncustodial parent have reasonable visitation riqhts as 

to the children not in his or her custody. After entry of 

the decree, Judy Connolly returned to Gillette, Wyoming, with 

the two younger children and Michael Connolly remained in 

Helena, Montana, with the two older children. 

On January 5, 1983, Michael Connolly filed a petition in 

the District Court requesting modification of the custody 

arrangements. Based on certain circumstances which he 

alleged seriously endangered the two younger children's 

physical, mental, moral or emotional health, Michael Connolly 

requested that he be awarded sole custody of the two younger 

children. The District Court then ordered the Lewis and 

Cl-ark County Welfare Department to conduct an investigation 

into the custodial suitability of the parties. The District 

Court also requested that the Sixth District Court of the 
State of Wyoming conduct a hearing in Gillette, Wyoming, to 

gather evidence as to the propriety of the petition for 

rnodification of custody. The transcript of the hearing was 

forwarded to Montana and subseqently adopted as part of the 

record in this case. 

The District Court heard final argument i.n this matter 

on three separate days in July and August of 1983. An 

opinion and order was issued on September 15, 1983, wherein 

the court ordered the decree of dissolution modified with 

respect to the custody arrangements and awarded Michael 

Connolly so1.e custody of the parties' four minor children. 

Judy Connolly filed a notice of appeal on September 22, 1983, 

from the order and opinion awarding Michael Connolly custody 

of the children. On December 2, 1983, she filed a notice of 

appeal from a March 10, 1983 order and opinion denying a 

motion to dismiss the cause for lack of iurisdiction. 

The following issues are before this Court on appeal: 

1. Whether the District Court had jurisdiction to 

modify the original custody award. 

2. Whether there is substantial evidence to support the 

District Court's conclusion that a modification of custody 

would be in the best interest of the two younger children. 

3. Whether the testimony of a Helena social worker was 

properly admitted into evidence. 

The Uniform Chil-d Custody Jurisdiction Act wa.s adopted 

by the Montana legislature in 1977. Under the Act, and 

section 40-4-211, MCA, certain requirements must he met 

before a court has jurisdiction to make a determination in 

child custody matters. These requirements are set forth as 

follows : 
" (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 

"(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 ava.ilable in this state substa.ntia1 

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 

dependen.t ; or 

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

perequisites substantially j.n accordance with 

subsections (1) (a), (1) (b), or (1) (c) of this 

section or another state has decl-ined 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 int.erest that the court 

assume jurisdiction." 

Each requirement sets forth an alternative basis for a 

court to assert jurisdiction. In the Commissioners' Note to 

section 40-7-104, MCA, it is stated th-at: 

"Paragraphs (1) and (2) of subsection (a) 

[40-4-211(1) (a) (i) and (ii) ] establish the two 

major bases for jurisdiction. In the first place, 

a court in the child's home state has jurisdiction, 
and secondly, if there is no home state or the 

child and his family have equal or stronger ties 

with another state, a court in that state has 

jurisdiction . . . 

"Paraqraph (3) of subsection (a) C40-4-211(1.) (c) 1 - - . . 

retains and affirms parens patriae jurisdiction , usually exercised by a juvenile court, which a 

state must assume when a child is in a situation 

requiring immediate protection . . . This 

extraordinary jurisdiction is reserved for 

extraordinary circumstances . . . 

"Pa-ragraph (4) of subsection (a) [40-4-211(1) (d) 1 

provides a final basis for jurisdiction which is 

subsidiary in nature. It is to be resorted to only 

if no other state could, or would, assume 

jurisdiction under the other criteria of this 

section. " 

The District Court in this case relied on section 

40-4-211(1) (b) , MCA, as its basis for jurisdiction. Under 

section 40-4-211(1) (b), the court is required to find first, 

that the child and his parents or the child and at least one 

contestant have a significant connection with this state, and 

second, that 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 because Michael Connolly 

lives and works in Helena he has a. "significant connection" 

with this forum. The District Court further found that the 

presence of Michael Connolly and the two older children in 

Helena provides a significant connection with this forum for 

the two younger children. 

In reaching its conclusion that the above-cited facts 

are sufficient to establish the necessary "significant 

connections," the District Court relied on the case of Reeve 

v. Reeve (Fl. 1980), 391 So.2d 789. 

In Reeve, a mother sought modification of a dissolution 

decree awarding custody of the minor daughter to the father. 

The father a.nd the child were then living in New Jersey and 
the mother was living in Florida. The court applied the 

jurisdictional requirements of the Uniform Child Custody 

Jurisdiction Act and found that: 

"Section 61.1308(1) (b) does not require that a 

child's only significant connection be with the 

State of Florida in order for jurisdiction of the 

Florida court to attach. [Citation omitted.] 

Although the child has resided in New Jersey since 

July, 1975, the wife has apparently resided in 

Florida since the dissol.ution and has not lost 

contact with the child, having visited with her in 

October, 1976, December, 1978, and the summer of 

1979. Under these circumstances, the child and. one 

contestant, the wife, have a significant connection 

with this state." 391 So.2d at 791. 

The District Court further relied on Reeve to find that 

substantial evidence existed in Montana as to the children's 

care, protection, training, and personal relationships. The 

court in Reeve held that: 

"As to the second part of the test, for purposes of 

determining subject matter jurisdiction under 

Section 61.1308, it is not the relative wealth of 

evidence available in either state that is at 

issue, rather, whether there exists in this state 

substantial evidence regarding the child's present 

or future care, protection, training, and personal 

relationships. While the bulk of evidence 

regarding the child's present care, letc.,] may now 

exist in New Jersey, there nevertheless exists in 

Florida. substantial evidence regarding her future 

care, [etc., 1 since the wife, who is seeking 

permanent custody resides in this state." 391 

So.2d at 791. 

The District Court found the situation in Reeve 

analogous to the case at hand and determined that because 

Michael Connolly has established a home in Montana, 

substantial evidence as to the children's future care, 

protection, training, and personal relationships is available 

in this state. 

Judy Connolly, however, contends that the result reached 

by the District Court cannot be reconciled with the decision 

in Strouf v. Strouf (1978), 176 Mont. 406, 578 P.2d 746. In 
Strouf, the Court held that the District Court lacked 

jurisdiction to modify the custody agreement previously 

agreed to by the parties. The Court found that the 

requirements of subsections (1) (a), (c), and (d) were not 

applicable, and that jurisdiction could not be based on 

(1) (b) because under subsection (2) the physical presence in 

this state of the child or 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. 

Such is not the case here. The ties that bind the two 

younger children to Wyoming are no stronger than the ties 

which bind them to Montana. Although Judy Connolly and the 

two younger child.ren live in Wyoming, the nztural father of 

the children and their two older siblings live in Montana.. 

There is also substantial evidence available in Montana to 

resolve the issues arising as to the children's future care, 

protection, training, and personal relationships. In making 

a custody determination, the court must examine both the 

children's present environment and their future environment. 

Therefore substantial evidence of either the children's 

present - or future care, protection, training, and personal 

relationships may be the basis for asserting jurisdiction 

under subsection (1) (b) (ii) . Allen v. Allen (Hawaii 1.981) , 

634 P.2d 609, 612; Reeve v. Reeve (Fl. 1980), 391 So.2d 789, 

791; Nelson v. District Court (Colo. 1974), 527 P.2d 811, 

814. Bodenheimer, The Uniform Child Custody Jurisdiction 

- Act, 22 Vand.L.Rev. 1207, 1227 (1969). 

Having thus determined that the District Court had 

jurisdiction to consid.er the petition for modification, we 

must now look to whether there is substantial evidence to 

support the court's findings and conclusions that a change in 
custody is in the best interest of the two vounger children. 

The District Court based it authority to award custody of the 

two younger children to Michael Connolly on section 

40-4-219 (1) (c) , MCA. Section 40-4-219 (1) (c) provides that: 

"(I.) The court may in its discretion modify a prior 

custody decree if it finds, upon the basis of facts 

that have arisen since the prior decree . . . that 

a change has occurred in the circumstances of the 

child or his custodian and that the modification is 

necessary to serve the best interest of the child 

and if it further finds that: 

" (c) the child ' s present environment endangers 

seriously his physical, mental, moral, or emotional 

health and the harm likely to be caused by a change 

of environment is outweighed by its advantages to 

him. . ." 

What is, or wha.t is not in the best interest of the 

child depends upon. the facts and circumstances of each case. 

The responsibility of the District Court is to sift through 

these contradictory facts and make an equitable custody 

decision. Because the court has the opportunity to observe 

the demeanor of the witnesses on the stand, j.t stands in a 

better position to draw the fine lines inherent in custody 

matters. Therefore, its decision will not he disturbed 

absent a clear showing that the court abused its discretion 

in making the custody decision. Brooks v. rooks (1976) , 171 

Mont. 132, 1.34, 556 P.2d 901, 902; In re the Adoption of 

Piery (1974), 164 Mont. 353, 356-57, 522 P.2d 1377. 

The District Court found. that Judy Connolly left the two 

younger children, ages 6 and 5, alone and unattended on. 

numerous occasions when she "couldn't find a babysitter." 

Durinq the time that the two older children were visiting, 

she left a.11 four children alone, with the oldest child, age 

10, in charge of the others. The court found that Judy 

Connolly does not show any remorse for leaving the children 

unattended and does not feel that to do so is dangerous to 
the children. This js contrary to the testimony of a number 

of expert and lay witnesses, who testified that the practice 

of leaving young children of their age alone is highly 

dangerous. 

The District Court also found that Judy Connolly has an 

intimate, sexual relationship with a married man who spends 

the night with her up to five times a week. When he is not 

with Judy, he stays with his wife and children at their 

residence in Gillette. There was also indication in the 

testimony that this man uses obscene and abusive language in 

the presence of the children. 

One of the expert witnesses at trial further testified 

that it would be in the best interest of the children if they 

were allowed to grow up together. 

From these findings, the District Court concluded that 

the children's present environment serious1.y endangers their 

physical, mental, moral, and emotional health and that the 

harm likely to be caused by a change of environment is 

outweighed by its advantages to them. We agree. Michael 

Connolly has remarried and can provide a safe and stabl-e home 

environment for the children. It appears that Judy Connolly 

cannot. 

Judy Connolly contends, however, that the District 

Court's conclusion that a change in custody is in the best 

interest of the children must be reversed because the 

District Court admitted into evidence prejudicial material 

and testimony. Judy Connolly objects to the admission of the 

report and testimony of a Helena social worker, who, after 

commenting on both the Montana environment and the FJ~oming 

environment, recommended that sole custody of the children be 

awarded to Michael Connolly. 
Although the socia.1 worker's observations as to the 

Wyoming environment were largely based on information 

received from Michael Connolly and may therefore not have 

been based on information of a type reasonably relied on by 

those in his field as required under Rule 703, M.R.Evid., 

there is no evidence that the District Court relied upon the 

social worker's observations and comments on the Wyoming 

environment in making his decision as to custody. The 

findings of the court as to the Wyoming environment are 

supported by other evidence in the record. and could easily 

have been based on such evidence. The objection is also 

inapplicable to the social worker's observations as to the 

Montana environment as these observations are based. on 

reliable and reasonable information. It is well-settled in 

Montana that, in a civil case, such as the one here, which is 

tried before the court without a jury, there is a presumption 

that the trial court has disregarded all inadmissible 

evidence in reaching its decision. In the Matter of Moyer 

(1977), 173 Mont. 208, 211, 567 P.2d 47; O'Sullivan v. 

Simpson (1949), 123 Mont. 314, 212 P.2d 435. This 

presumption has not been overcome. 

The decision of the District Court awarding sole custody 

of the parties' four minor children to Michael Connolly is 

affirmed. 
We Concur: