No

No. 97-680

IN THE SUPREME COURT OF THE STATE OF MONTANA

1998 MT 190

IN RE PATERNITY AND CUSTODY OF B.E.S.,

A Minor Child.

JAMES LEWIS,

Petitioner and Respondent,

v.

MELISSA SOWERS, n/k/a MELISSA GREENE,

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Respondent and Appellant.

APPEAL FROM: District Court of the Eighth Judicial 

District,

In and for the County of Cascade,

The Honorable Marge Johnson, Judge presiding.

COUNSEL OF RECORD:

For Appellant:

Marcia Birkenbuel, Attorney at Law; Great Falls, Montana

For Respondent:

Daniel L. Falcon, Attorney at Law; Great Falls, Montana

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Submitted on Briefs: June 11, 1998

Decided: July 29, 1998

Filed:

__________________________________________

Clerk

Justice Jim Regnier delivered the opinion of the Court.

¶ In August 1995, James Lewis filed a petition in the Eighth Judicial District Court, 

Cascade County, to establish paternity, custody, and visitation rights as the father of 

then three-year-old B.E.S. In June 1997, Lewis filed a motion for contempt and for 

specified visitation on the grounds that the child's mother, Melissa Sowers (now 

known as Melissa Greene and hereinafter referred to as Sowers) had denied him 

reasonable visitation. Sowers later filed a motion asking that the District Court 

decline to exercise continuing jurisdiction over the matter. The court denied Sowers' 

motion to decline jurisdiction, and subsequently entered an oral order granting 

Lewis much of the relief he sought by way of his motion for contempt and specified 

visitation. Sowers appeals from the District Court's order denying her motion to 

decline jurisdiction and from the court's oral order granting Lewis's motion for 

specified visitation and request for attorney fees.

¶ The sole dispositive issue presented by Sowers on appeal is whether the District 

Court abused its discretion in denying her motion to decline jurisdiction.

FACTUAL AND PROCEDURAL BACKGROUND

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¶ B.E.S. was born in Great Falls, Montana, on March 29, 1992, to Melissa Sowers 

and James Lewis. The relationship between Sowers and Lewis had begun to 

deteriorate prior to B.E.S.'s birth, and the two never married. The record indicates 

that Lewis's paternity was initially established by blood tests performed in 1994. 

¶ B.E.S. has lived with her mother for her entire life. B.E.S. lived in Great Falls with 

her mother from the time of her birth until the summer of 1997, when she and her 

mother moved to Fargo, North Dakota, to live with Sowers' new husband. On August 

15, 1995, while B.E.S. and her mother were still living in Great Falls, Lewis filed a 

petition in Cascade County District Court to establish paternity, custody, and 

visitation rights as B.E.S.'s father. Lewis is a Wisconsin resident, as he was at the 

time he filed the petition in August 1995.

¶ On March 6, 1996, Lewis filed a motion for temporary visitation on the grounds 

that he and Sowers had been unable to negotiate an acceptable visitation schedule. 

On March 15, 1996, Sowers filed a motion for an order requiring Lewis to pay 

temporary child support, to maintain health insurance for B.E.S. and to pay all of the 

child's uncovered medical expenses. The court held a hearing on March 18, 1996, to 

address the parties' respective motions. Prior to the hearing, the parties reached an 

agreement with respect to temporary visitation, temporary child and medical 

support, and a variety of other issues. The parties entered their stipulations upon the 

record during the hearing. 

¶ More than one year later, on June 24, 1997, Lewis filed a "motion for contempt, for 

specified visitation, and other relief." Lewis asserted he had been denied visitation 

with his daughter on a regular basis, and asked the court to order "a set visitation 

schedule." Lewis additionally asked that the court hold Sowers "in contempt for her 

failure to abide by past orders, and to live up to her obligations under the joint 

custody statutes regarding maintaining contact between" B.E.S. and Lewis. Among 

Lewis's remaining requests were that the court issue an order temporarily 

prohibiting Sowers from removing B.E.S. from the court's jurisdiction, and that it 

order Sowers to pay the attorney fees and costs he incurred in connection with filing 

the motion. 

¶ On July 10, 1997, the District Court issued a temporary order mandating that B.E.

S. "remain in Great Falls, Montana, with her maternal grandmother, until a hearing 

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can be held in this matter." The court set a hearing to address the remainder of 

Lewis's motion for October 31, 1997. 

¶ On September 19, 1997, Sowers filed a motion for an order declining jurisdiction. 

Sowers asked that the court decline "to exercise continuing jurisdiction in this matter 

for the reasons that this state is an inconvenient forum, pursuant to Section 40-7-108, 

MCA, and the child's home state of North Dakota is a more appropriate forum for 

this case." Sowers noted that Lewis was a resident of Wisconsin, and argued that 

because she and B.E.S. were residents of North Dakota, "[a]ny evidence regarding 

the child's present or future care, protection, training, and personal relationships is 

more readily available in North Dakota than in Montana." Sowers argued that "[t]he 

state of North Dakota obviously has a closer connection with the child and her family 

than Montana has," and asserted that the continued exercise of jurisdiction by 

Montana's courts would contravene the purpose of the Uniform Child Custody 

Jurisdiction Act. 

¶ On October 29, 1997, the District Court issued an order denying Sowers' motion 

for an order declining jurisdiction, finding that, at the time Lewis filed his motion for 

contempt, for specified visitation, and other relief, "Montana was clearly the home 

state of the child and it is at that point that the determination is made." The court 

additionally noted that, as of the October 29, 1997, date of its order, B.E.S. had "yet 

to live for a six month period of time in North Dakota."

¶ On October 31, 1997, the court held a hearing on Lewis's motion for contempt, 

visitation, and other relief. At the close of the hearing, the court entered an oral 

order granting Lewis certain visitation rights, and mandating that Sowers pay a 

portion of Lewis's attorney fees and costs.

¶ On November 26, 1997, Sowers filed her notice of appeal from the District Court's 

October 29, 1997, order denying her motion to decline jurisdiction, and from its 

October 31, 1997, oral order regarding visitation and attorney fees. 

DISCUSSION

¶ Did the District Court abuse its discretion in denying Sowers' motion to decline 

jurisdiction?

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¶ As noted, Sowers appeals from the District Court's order denying her motion to 

decline jurisdiction, as well as from its subsequent order granting Lewis certain 

visitation rights and mandating that she pay a portion of his attorney fees and costs. 

Although Sowers appeals from both orders, the sole issue she raises on appeal is 

whether the court erred in denying her motion to decline jurisdiction. We review the 

District Court's decision denying Sowers' motion to decline jurisdiction for an abuse 

of discretion. See, e.g., In re Marriage of Irwin (1993), 259 Mont. 176, 179, 855 P.2d 

525, 527. 

¶ On appeal, Sowers argues the District Court failed to complete the two-tiered 

jurisdictional analysis required by the Uniform Child Custody Jurisdiction Act 

(UCCJA), and that it was thus an abuse of discretion for the court to deny her 

motion to decline jurisdiction. Although Sowers does not specifically dispute the 

District Court's conclusion that Montana was B.E.S.'s "home state" at the time of 

Lewis's motion for contempt and visitation, she does assert the court erred in ending 

its jurisdictional inquiry at that point. Sowers argues that once the court had 

evaluated the jurisdictional prerequisites of § 40-4-211, MCA, it was bound to then 

determine whether Montana's courts were an inconvenient forum to make a custody 

determination under the circumstances present at the time of her September 19, 

1997, motion to decline jurisdiction. More specifically, Sowers argues the court 

abused its discretion in failing to address those factors identified in § 40-7-108(3), 

MCA, as relevant to an inconvenient forum determination. For example, although 

Sowers concedes the court considered whether another state was B.E.S.'s home state, 

she argues the court failed to consider whether another state had a closer connection 

with the child and whether substantial evidence regarding B.E.S.'s welfare was more 

readily available in another state. Sowers also argues the court failed to consider 

whether the continued exercise of jurisdiction by Montana's courts would contravene 

the purposes of the UCCJA as set forth in § 40-7-102, MCA. Based on the foregoing, 

Sowers asks that we vacate the District Court's decision, and remand this matter 

"with instructions to stay the District Court proceedings pending assumption of 

jurisdiction over these matters by the North Dakota court."

¶ Lewis, in contrast, argues the District Court correctly concluded it had jurisdiction 

over the present case pursuant to § 40-4-211, MCA, and asserts the court did not 

abuse its discretion in deciding to maintain jurisdiction over the matter. More 

specifically, Lewis argues the District Court correctly concluded that Montana was B.

E.S.'s "home state," and argues the court thus had jurisdiction pursuant to § 40-4-

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211, MCA. 

¶ Lewis next recognizes that § 40-7-108, MCA, authorizes a Montana court to decline 

jurisdiction "at any time before making a decree if it finds that it is an inconvenient 

forum to make a custody determination under the circumstances of the case and that 

a court of another state is a more appropriate forum," but argues the court was not 

obligated to undertake such an analysis. Even if it was necessary for the court to 

address the inconvenient forum question, however, Lewis argues there was no more 

appropriate forum in this case than that presented by Montana's courts. For 

example, Lewis asserts that "all relevant evidence pertaining to B.E.S.'s care, 

training, [and] personal relationships" was located in Montana at the time he filed 

his motion for contempt and visitation. Moreover, unlike Sowers, Lewis asserts that 

the District Court's decision to maintain jurisdiction in this case actually complies 

with the stated purposes of the UCCJA. Based on the foregoing, Lewis argues the 

District Court did not abuse its discretion in denying Sowers' motion to decline 

jurisdiction. 

¶ We have previously stated that the UCCJA "establishes a two-tiered jurisdictional 

test which a court must find satisfied before it makes even an initial custody decree." 

In re Marriage of Bolton (1984), 212 Mont. 212, 216, 690 P.2d. 401, 403 (quoting Wenz 

v. Schwartze (1979), 183 Mont. 166, 178, 598 P.2d 1086, 1093, cert. denied (1980), 444 

U.S. 1071, 100 S. Ct. 1015, 62 L. Ed. 2d 753). The first tier "mandates that one of the 

four disjunctive requirements of Section 40-4-211, MCA, be satisfied before a district 

court may take jurisdiction to make a child custody determination." Bolton, 212 

Mont. at 216, 690 P.2d at 403. Section 40-4-211(1), MCA, provides in pertinent part 

that "[a] court of this state competent to decide parenting matters has jurisdiction to 

make a parenting determination by initial or amended decree if: (a) this state: (i) is 

the home state of the child at the time of the commencement of the proceedings." 

¶ In the present case, the District Court specifically concluded that because B.E.S. 

had "yet to live for a six month period of time in North Dakota" at the time of 

Lewis's motion for contempt and specified visitation, or the time of its order, 

"Montana was clearly the home state of the child." Because Sowers does not 

specifically dispute this conclusion on appeal, we need not determine whether the 

court erred in concluding that Montana qualified as B.E.S.'s "home state" as that 

term is defined by § 40-7-103(5), MCA. It is thus apparent that the first tier of the 

UCCJA's jurisdictional test was met in the present case. 

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¶ The second tier of the UCCJA's jurisdictional test "demands that a court which 

has satisfied the prerequisites of Section 40-4-211, MCA, then determine whether 

jurisdiction should be exercised." Bolton, 212 Mont. at 220, 690 P.2d at 405. Under 

this second tier, the district court has "discretionary authority to 'decline to exercise 

its jurisdiction' upon a determination that it is an 'inconvenient forum' and that a 

court of another state is a 'more appropriate forum.'" Bolton, 212 Mont. at 216-17, 

690 P.2d at 403 (citing § 40-7-108, MCA). We have explicitly recognized that "[t]he 

decision to decline jurisdiction on inconvenient forum grounds is purely 

discretionary with the District Court." In re Marriage of Cook (1986), 223 Mont. 293, 

297, 725 P.2d 562, 564-65. We have stated that the court, in determining whether it is 

an inconvenient forum, "shall consider if it is in the child's best interest for another 

state to assume jurisdiction, taking into account such factors as whether another 

state is the child's home state, whether substantial evidence concerning the child's 

welfare is more readily available in another state, and whether the exercise of 

jurisdiction by a Montana court would contravene the UCCJA's stated purposes." 

Irwin, 259 Mont. at 179, 855 P.2d at 527 (citing § 40-7-108(3), MCA). Section 40-7-108

(3), MCA, specifically provides that: 

In determining if it is an inconvenient forum, the court shall consider if it is in 

the interest of the child that another state assume jurisdiction. For this purpose 

it may take into account the following factors, among others:

(a) if another state is or recently was the child's home state;

(b) if another state has a closer connection with the child and his family or 

with the child and one or more of the contestants;

(c) if substantial evidence concerning the child's present or future care, 

protection, training, and personal relationships is more readily available in 

another state;

(d) if the parties have agreed on another forum which is no less appropriate; 

and 

(e) if the exercise of jurisdiction by a court of this state would contravene any 

of the purposes stated in 40-7-102.

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¶ Although the District Court considered the "home state" factor, it is clear from the 

text of its order denying Sowers' motion to decline jurisdiction that it did not 

specifically evaluate any of the remaining statutory factors before deciding to 

maintain jurisdiction over the present case. Despite the fact that the court did not 

expressly discuss the remaining criteria identified by § 40-7-108(3), MCA, we 

nevertheless conclude the court did not abuse its discretion in denying Sowers' 

motion to decline jurisdiction. Nowhere does § 40-7-108(3), MCA, mandate that the 

court consider each of the five factors set forth within. Instead, the statute simply 

lists a number of elements which the court may consider in making an inconvenient 

forum determination. In the present case, the court clearly considered the first factor 

set forth in § 40-7-108(3), MCA, and concluded that Montana was B.E.S.'s home 

state. The record indicates that B.E.S. spent the first five years of her life in Great 

Falls, Montana, and moved to North Dakota in early July 1997, just days after Lewis 

filed his motion for contempt and for specified relief. Sowers filed her motion asking 

that the court decline to exercise continuing jurisdiction over the case just two and 

one-half months after B.E.S. had moved to North Dakota. At the time of Sowers' 

motion to decline jurisdiction, B.E.S. had lived in Montana for all but two and onehalf months of her life. Under these circumstances, there is no indication that B.E.S. 

and her family had any closer connection to North Dakota then they did to Montana, 

and no indication that evidence regarding B.E.S.'s welfare was any more readily 

available in North Dakota than it was in her home state of Montana. Finally, we note 

there is no indication that the exercise of continuing jurisdiction by the Montana 

court in this case contravenes any of the nine general purposes of the UCCJA, among 

which is the deterrence of "unilateral removals of children undertaken to obtain 

custody awards." Section 40-7-102(1)(e), MCA. 

¶ Based on the foregoing, we hold the District Court did not abuse its discretion in 

denying Sowers' motion to decline jurisdiction, and accordingly affirm the court's 

October 31, 1997, oral order regarding visitation and attorney fees.

/S/ JIM REGNIER 

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We Concur:

/S/ J. A. TURNAGE

/S/ KARLA M. GRAY

/S/ WILLIAM E. HUNT, SR.

/S/ TERRY N. TRIEWEILER

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