No. 92-155 

IN THE SUPREME COURT OF THE STATE OF MONTANA 

1993 

IN RE THE MARRIAGE OF 

PERRY WAYNE MILLER, 

Petitioner and Respondent, 

and 

KATHY JO MILLER (BEAM) , 

Respondent and Appellant. 

APPEAL FROM: District Court of the Seventeenth Judicial 

District, In and for the County of Blaine, 

The Honorable Leonard Langen, Judge presiding. 

COUNSEL OF RECORD: 

For Appellant: 

Patrick F. Flaherty, Attorney at Law, 

Great Falls, Montana 

For Respondent: 

Dan Falcon, Matteucci, Falcon, Squires & 

Lester, Great Falls, Montana 

Submitted on Briefs: June 17, 1993 

Decided: ~uly 27, 1993 

Filed: 
Justice Terry N. Trieweiler delivered the opinion of the Court. 

Appellant Kathy Jo Beam appeals from an order issued by the 

District Court for the Seventeenth Judicial District, Blaine 

County, in which the court modified the original custody decree and 

awarded the parties joint custody of their minor child, Lori. 

We vacate the order of the ~istrict Court on the basis that 

the court lacked subject matter jurisdiction to modify the original 

custody decree, and remand to the court for dismissal of this 

action. 

The following issue, raised sua sponte by this Court, is the only 

issue we find necessary to review: 

Did the District Court have jurisdiction under Montana's 

Uniform Child Custody Jurisdiction Act to hear and determine the 

motion for modification? 

Kathy and Perry Miller were married in October 1980, A son, 

Joshua, was born in 1981, and a daughter, Lenore (Lori), whose 

custody is in dispute in this case, was born in June 1982. The 

marriage broke down, and in August 1982 Kathy and the children 

moved to her parent's home in Johnstown, Pennsylvania. 

On May 13, 1983, the parties' marriage was dissolved by the 

Blaine County District Court. The decree provided that the issues 

of custody and property distribution would be determined at a later 

date. After the dissolution, Joshua remained in Montana with 

Perry, and Lori returned to Pennsylvania with Kathy. Lori has 

lived in Pennsylvania ever since that time. 
In 1985, the court entered its findings of fact, conclusions 

of law, and decree with respect to custody, child support, and 

distribution of property. Kathy was awarded custody of Lori and 

Perry was awarded custody of Joshua. This decision was based on 

the court's findings that neither child had lived with the 

noncustodial parent since they were infants and that they were each 

happy and integrated with their respective families. 

During the summer of 1990, when Lori was visiting in Montana, 

Perry petitioned for custody of Lori and obtained a temporary 

restraining order to keep her from returning to Pennsylvania. 

These actions were precipitated by Lori's statements that Kathy's 

live-in boyfriend was abusive to Kathy. Prior to the commencement 

of Perry's action for modification, Lori had lived in Pennsylvania 

for approximately eight years, attended school there, and had only 

visited Perry in Montana for one month in 1988, and two months in 

1989. 

Hearings were conducted in the Montana court during February 

1991. As a result of those hearings, the District Court found that 

neither Lori nor Kathy were endangered by a live-in boyfriend at 

that time. The court, therefore, lifted the temporary restraining 

order. However, the original decree was modified to provide for 

joint custody of Lori. The court's modification was based on a 

stipulation which the parties entered into during the hearing. 

Kathy sought reconsideration, but her motion was denied and 

judgment was entered on March 18, 1992. From this judgment, Kathy 

appeals. 
Kathy contends that the court coerced her into entering into 

the agreement and that it abused its discretion when it modified 

the 1985 custody decree because the statutory requirements for 

modification of custody were not satisfied. However, the 

dispositive issue, which we raise suasponte, is whether the District 

Court had subject matter jurisdiction to hear and determine Perry's 

motion for modification. 

It is well established that the issue of subject matter 

jurisdiction may be raised at any stage of a judicial proceeding by 

a party or sua sponte by the court. OgDonnelI v. Ryans, Znc. (1987) , 227 

Mont. 48, 49, 736 P.2d 965, 966. Seeako,Statev.Davis (1984), 210 

Mont. 28, 30, 681 P.Z~ 42, 43; Statev.Akm (1938), 106 Mont. 43, 57, 

74 P.2d 1138, 1145; Oppenheirnerv. Regan (1905), 32 Mont. 110, 115, 79 

P. 695, 696. Once the issue is raised and it is determined that a 

court lacks subject matter jurisdiction, the only further action 

the court can take is to dismiss the case. Rule 12(h) (3), 

M.R.Civ.P.; ZnreMam'ageofLance (1984), 213 Mont. 182, 186-87, 690 

P.2d 979, 981. 

It is also a settled rule that subject matter jurisdiction 

cannot be waived nor conferred by consent of a party where there is 

no basis for jurisdiction under the law. OIDonneII, 736 P.2d at 

966 (citing Statev. Davis, 681 P.2d at 43). Thus, in this instance, 

Kathy's appearance and participation in the proceedings cannot be 
construed as an acquiescence in, nor conferral of, subject matter 

jurisdiction. 

All child custody determinations, including initial and 

modification decrees, are governed by the provisions of Montana's 

Uniform Child Custody Jurisdiction Act (UCCJA), found at 

40-7-101 through -125, MCA. The stated purpose of the UCCJA is 

[Alssure 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. 

Section 40-7-102 (1) (c) , MCA. 

Section 40-4-211, MCA, is incorporated into the UCCJA by 

§ 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 Mam'age of Bolton (1984), 

212 Mont. 212, 218, 690 P.2d 401, 404. This Court has made clear 

that the jurisdictional requirements of 5 40-4-211, MCA, must be 

met before a court, which entered an initial custody decree, can 

exercise continuing subject matter jurisdiction to modify that 

decree. InreMamageofAlpert (Mont. 1993), 852 P.2d 669, 670-71, 50 

St. Rep. 564, 565; Bolton, 690 P.2d at 404. Section 40-4-211, MCA, 

provides in pertinent part 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 . . . or 

(b) it is in the best interest of the child that a 

court of this state assume jurisdiction because: 

(i) 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 

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

prerequisites substantially in accordance with . . . this 

section or another state has declined to exercise 

jurisdiction . . . and 

(ii) it is in his best interest that the court 

assume jurisdiction. 

The record in this case reveals that prior to the commencement 

of this proceeding Lori lived in Pennsylvania for approximately 

eight years and only visited Montana during brief periods between 

1988 and 1990. Thus, by definition, Montana is not ~ori's home 

state and the court had no jurisdiction under § 40-4-211 (1) (a) , 

MCA . 

Next, the record demonstrates that Lori's most significant 

connections are with Pennsylvania, and that is where relevant 
evidence concerning such things as her medical care, training, 

personal relationships, and protection is available. Her contacts 

with Montana at the commencement of the action were minimal, and 

relevant evidence is virtually non-existent in this State. 

Therefore, there is no jurisdictional basis under 5 40-4-211(1) (b) , 

MCA . 

Third, we note that Pennsylvania, which has been Lori1s home 

state since 1982, has adopted the Uniform Child Custody 

Jurisdiction Act in nearly identical form as Montana. 23 Pa.C.S.A. 

§§ 5341 through 5366. Because it is both Lori's home state and the 

state with which she has the most significant connections, 

Pennsylvania, under its version of the UCCJA, has subject matter 

jurisdiction to determine custody issues with respect to Lori. 

Since there is no evidence in the record to suggest that 

Pennsylvania has declined to exercise its jurisdiction in this 

instance, § 40-4-211(1) (d), MCA, does not confer jurisdiction on a 

Montana court. 

Finally, the remaining alternative basis for jurisdiction set 

forth in 5 40-4-2ll(l) (c), MCA, applies only in cases of 

abandonment, neglect, or extreme emergency. This Court made clear 

in Wenz v. Schwartze (l979), 183 Mont. 166, 179, 598 P.2d 1086, 1094, 

that, consistent with the Commissioners1 Notes to the Uniform Child 

Custody Jurisdiction Act, application of this section requires 

caution and "is to be used only in 'extraordinary circumstances.'" 

See also, Application of Lang (1959) , 193 N .Y. S. 2d 763. 
The facts of this case do not constitute an extraordinary or 

emergency situation. Although the modification petition was 

initiated due to the belief that Kathy was living in an abusive 

situation and that Lori had been threatened by the same individual, 

there was no evidence that Lori was in immediate danger. Moreover, 

by the time of the hearing in 1991, the court found that the 

situation with Kathy's boyfriend had been wcured" and that it was 

reasonable to award split physical custody. Thus, the court's own 

findings negated any argument that there was an emergency situation 

or necessity to immediately remove Lori from Kathy's custody. 

Therefore, the section of the UCCJA which confers custody in 

emergency situations is not applicable here. 

After carefully considering the record in this case, we 

conclude that none of the disjunctive requirements set forth in 

g 40-4-211, MCA, are satisfied. We hold that the Montana District 

Court lacked subject matter jurisdiction to intervene in this 

matter. 

Accordingly, the judgment of the District Court is vacated, 

and pursuant to Rule 12(h)(3), M.R.Civ.P., we remand to the court 

for dismissal of this action. 
We concur: 

LJustice James C. Nelson did not participate. 
July 27, 1993 

CERTIFICATE OF SERVICE 

I hereby certify that the following order was sent by United States mail, prepaid, to the following 

named: 

Patrick F. Flaherty 

Attorney at Law 

625 Central Ave. W., #I01 

Great Falls, MT 59404 

Daniel Falcon 

MATTEUCCI, FALCON, SQUIRES & LESTER 

P.O. Box 149 

Great Falls, MT 59403 

ED SMITH 

CLERK OF THE SUPREME COURT 

STATOF MONTANA 

BY 

Depu