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, 1992 
Chief 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 ~istrict Court had 

jurisdiction over the question of child custody. 

In May 1990, Jim Oltersdorf filed with the ~istrict Court for 

Ravalli County, Montana, a petition for dissolution of his marriage 

to Joan Oltersdorf. In the petition, he stated that he had been a 

Montana resident for more than ninety days and that Joan resided in 

San Bernardino, California. Jim stated that two children, Sasha 

and Joalena, had been born to the parties 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 summons and petition pursuant 

to Ruf e 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 Joan had 

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. 
In December 199 1, Joan, through her 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 claims that the District Court had jurisdiction over child 

custody because a dissolution had been filed in the court, Joan had 

consented to jurisdiction by voluntarily appearing through counsel, 

and the court had already exercised child custody jurisdiction by 

ruling on a motion concerning visitation. 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 court did not acquire jurisdiction by 

virtue of its previous rulings on motions concerning visitation, 

because a court does not acquire subject matter jurisdiction merely 

by ruling on a matter. The issue of subject matter jurisdiction 
may 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 

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 proceedings 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 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 in Montana for six months 

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

Montana was not the Ifhome stateJt 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 the Uniform Marriage and Divorce Act, 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 it was proper to 

assume jurisdiction on the date of October 3, 1991 based 

on the facts and circumstances as they existed on that 

date. According to Petitioner's affidavit filed July 17, 

1990, the Petitioner had resided in Montana since September of 1989. Petitioner testified that he travelled to 

California and remained there during 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, Joalena had been 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 child had 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 to make 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 "any 
other reason justifying relief from the operation of the judgment.'@ 

That language is clearly broad enough to include lack of jurisdiction. 

Because we hold that the District Court did not have jurisdiction to determine 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 

CERTIFICATE OF SERVICE 

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

following named: 

Howard C. Greenwood 

Attorney at Law 

P.O. Box 1567 

Hamilton, MT 59840 

Lori Ballinger & Paulette C. Ferguson 

Attorneys at Law 

210 N. Higgins, Ste. 302 

Missoula, MT 59802 

ED SMITH 

CLERK OF THE SUPREME COURT 

STATE OF MONTANA 

BY: 

~ept~'