No. 92-179 

### IN THE SUPREME COURT 

### OF THE STATE OF MONTANA 1992

IN RE THE MARRIAGE OF JIM J. OLTERSDORF, Petitioner and Appellant, and JOAN ARLENE OLTERSDORF, Respondent and Respondent.

APPEAL FROM: District Court of the Fourth Judicial District, In and for the County of Ravalli, The Honorable John S. Henson, Judge presiding.

COUNSEL OF RECORD: For Appellant: Howard C. Greenwood, Hamilton, Montana For Respondent: Lori Ballinger and Paulette C. Ferguson, Missoula, Montana

Filed: Submitted on Briefs: December 3, 1992 Decided: December 24, 1992Chief 

### Justice J. A. Turnage delivered the Opinion of the 

### Court. Jim Oltersdorf appeals an order 

### of the Fourth Judicial D~Strict Court, Ravalli County, setting aside its previous order determining child custody and child support in this dissolution of the marriage of Jim and Joan Oltersdorf. We affirm. The determinative issue is whether the ~istrictCourt had jurisdiction over the question of child custody. InMay 1990,Jim Oltersdorf filedwith the ~istrict Court for Ravalli County,Montana, apetition fordissolutionof hismarriage to Joan Oltersdorf. In the petition, he stated that he had been a Montana resident formore thanninety days and that Joan resided in San Bernardino, California. Jim stated 

### that two children, Sasha and Joalena,had been born to theparties and that Sasha was in his

care and custody and Joalena was in the care and custody of Joan. During the time at issue in this case, Sasha was an elementary school student and Joalena 

### was a preschooler. Joan acknowledged receipt of the summonsand petition pursuant to Rufe 4(D)(1)(b)

## ,M.R.Civ.P. The court ruled upon a motion concerning visitation before it entered the final decree of dissolution in October 1991. In the decree, the court noted that Joanhad not appeared either personally or by counsel at trial. Although Jim had asked in his petition that he be awarded custody of Sasha and Joan be awarded custody of Joalena, the court awarded custody of both Sasha and Joalena to Jim.InDecember 1991, Joan, throughher 

### counsel,moved 

### under Rules 55(c) and 60(b)

### , M.R.Civ.P., to set aside the October 1991 judgment. After a hearing, 

### the court granted the motion to set aside its custody determination regarding Joalena, on the basis of lack of notice to Joan. The court also ruled that 

### it lacked jurisdiction to determine custody of either of the children. In order to restore the parties to their positions before the October 1991 order was entered, the court ordered that custody of both girls be immediately returned to Joan.

id the District Court have jurisdiction over the question of child custody? Jim claimsthat theDistrict Courthad jurisdictionover child custodybecause adissolutionhad been filed in the court,Joanhad consented to jurisdictionbyvoluntarily appearing through counsel, and the court had already exercised child custody jurisdiction by ruling on 

### a motion concerningvisitation. But jurisdiction over a dissolution of marriage does not necessarily confer jurisdiction

over child custody issues involved therein. E.g., In re Marriage of Brown (19851, 218 Mont, 14, 706 P.2d 116; compare 55 40-4-104 and 40-4-211, MCA. Also, the courtdid not acquire jurisdictionby virtue of its previous rulings on motions concerning visitation, because a court does not acquire subject matter jurisdictionmerely by ruling on a matter. The issue of subject matter jurisdictionmay be invoked at any time in the course of a proceeding. In re Marriage of Lance (1984), 213 Mont. 182, 186, 690 P.2d 979, 981. Section 40-4-211, MCA, provides:

(1) A court of this state competent to decide child custodymatters has jurisdiction tomake 

### a child custody determinationby 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 proceedings and the child is absent from this state because of his removal or retentionby a person claiminghis custody or for other reason and a parent orperson acting asparent 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 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 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. One of the four disjunctive requirements set forth above must be met before a court may make a custody determination.The record indicates that until Jim and Joan separated,Sasha and Joalena lived with both parents 

### in California. In February 1988,Joan, Sasha, and Joalena moved to Canada. In December 1989, Sasha traveled to visit Jim in Montana, where he had by then relocated. She stayed until June 1990, when she joined Joan and Joalena, who had moved back to California. When Jim filed his petition for dissolution in May 1990, Sasha had lived with him in Montana for a little over four months and Joalena had never lived in Montana. Neither Sasha nor Joalena had lived inMontana for 

### sixmonths prior to Jim's filing of the petition for dissolution. Therefore, Montana 

### was not the IfhomestateJt under part (a) of § 40-4-211(1), MCA, "Home stateM is defined at 5 40-7-103(5), MCA, for purposes of both the Uniform Child Custody Jurisdiction Act, Title 40, Chapter 7,MCA, and theUniform Marriage and DivorceAct, Title 40, Chapter 4, MCA, as 

### the state in which the child lived for the preceding six months. In the order setting aside 

### its previous custody order, the District Court reasoned as follows concerning the requirements of parts (b), (c),

### and (d) of 5 40-4-211(1), MCA: Subsection (b) of 40-4-211(1) confers jurisdiction if such jurisdiction is in the childls best interest 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 substan-tial evidence concerning the child's present or future care, protection, training, and personal relationships



# ... This prerequisite is drafted in the present tense. Therefore, the Court shall determine if itwas proper to assume jurisdiction on the date of October 3, 1991based on the facts and circumstances as they existed on that date. According to Petitioner's affidavit filedJuly 17, 1990,the Petitionerhad resided inMontana since September of 1989. Petitioner testified that he travelled to California and remained thereduring part of February and March of 1991. While in California, Petitioner lived with Respondent for 

### a portion of that time, and researched employment opportunities. As of October 3, 1991, Joalenahadbeen living with Respondent in California since March, 1990, a period of roughly one and onehalf years. In addition, Sasha had been living with Respondent and attending school in California since June 5, 1990, a period of roughly one year and four months. According to these facts,neither childhad a significant connection in Montana 

### at the time of the October 3, 1991 hearing so as to allow this Court to assume jurisdiction to make a child custody determination of either child. Likewise, 5 40-4-211(c) or (d)does not confer jurisdiction in Montana. Rather, the facts and circumstances establish a sufficient nexus between the minor children and the State of California so as to confer jurisdiction in that State. Therefore, aside from the fact that the Respondent lacked notice regarding the child custody determination of Joalena, jurisdiction did not lie in Montana for this Court tomake the subject child custody determinations regarding either child.

We agree with the District Court's analysis concerning jurisdiction. We hold that the court did not err in concluding it did not have jurisdiction to determine custody of Sasha or Joalena. Jim also argues that 

### a Rule 60(b), M.R.Civ.P., motion may not be used to set aside an order based on lack of jurisdiction. Rule 60(b) (6),M.R.Civ.P., allows a judgment to be set aside for "anyotherreasonjustifying relief from theoperation of thejudgment.'@ That language is clearlybroad enough to include lack of jurisdiction.Because wehold that theDistrictCourt didnot have jurisdiction todetermine child custody, we need not address the issue of whether Joan was given adequate notice of the custody proceeding concerning Joalena. Affirmed. 

# [7-*

1 Chief Justice

We concur:December 24, 1992 CERTIFICATEOFSERVICE I hereby certify that the followingorder was sent by United States mail, prepaid,to the followingnamed:

HowardC.Greenwood AttorneyatLaw P.O. Box 1567 Hamilton,MT 59840 LoriBallinger&PauletteC.Ferguson Attorneys atLaw 210N.Higgins,Ste.302 Missoula,MT 59802

EDSMITH CLERKOFTHESUPREMECOURT STATEOFMONTANA BY: ~ept~'