No. 84-83 

IN THE SUPREME COURT OF THE STATE OF MONTANA 

IN RE THE MARRIAGE OF 

JEFFFEY LAWRENCE BOLTON, 

Petitioner and Respondent, 

and 

KATHLEEN EDITH BOLTON, 

Respondent and Appellant. 

APPEAL FROM: The District Court of the Eighteenth Judicial District, 

In and for the County of Gallatin, 

The Honorable Thomas Olson, Judge presiding. 

COUNSEL OF RECORD: 

For Appellant: 

Scully, Lilly & Andriolo; Michael J. Lilly, Bozeman, 

Montana 

For Respondent: 

Wellcome & Frost; Albert A. Frost, Bozeman, Montana 

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Submitted on Briefs: May 31, 1984 

Decided: August 30, 1984 

Filed: 

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Clerk 
Mr. Justice L. C. Gulbrandson delivered the Opinion of the 

Court. 

Kathleen Bolton appeals from an order of the District 

Court granting a petition for modification of custody of her 

minor daughter. We affirm the decision of the District 

Court. 

The marriage of Kathleen E. Solton and Jeffrey L. 

Bolton was dissolved by a decree issued by the Fourth 

Judicial District, County of Missoula, on October 30, 1979. 

Custody of the parties' minor child, Jaime Brooke Bolton, 

was granted to the mother. The decree provided the father 

reasonable visitation with the child, including one month in 

the summer and the Christmas holidays. 

Following the dissolution of the marriage, the mother 

and Jaime moved to Santa Barbara, California. On December 

26, 1981, by agreement of the parties, Jaime was sent to 

live with her father in Missoula, Montana for the balance of 

her kindergarten school year. This arrangement arose due to 

an unexpected death in the mother's family in Santa Barbara. 

During the child's residence with the father from December 

26, 1981 until July 4, 1982, Jaime attended kindergarten in 

Missoula. She also became acquainted with the father's 

neighbor, Rose Reed, and with Mrs. Reed's two young 

daughters. Mrs. Reed babysat for Jaime when the father's 

work schedule required him to be away. As agreed, Jaime was 

returned to her mother in Santa Barbara early in July of 

1982. 

On December 27, 1982, Jaime was again sent to Montana 

to live with her father who had transferred to Gallatin 

Gateway, Montana. The parties agreed that Jaime could 
complete the latter half of first grade at the Gallatin 

Gateway Public School. According to the agreement Jaime 

would be returned to the mother's custody at the end of the 

1982-83 school year. During the time she attended first 

grade in Gallatin Gateway, Jaime showed marked improvement 

in both her social and academic development. She also 

became quite attached to Mrs. Reed, as well as close friends 

with Mrs. Reed's daughters, all of whom by then lived with 

the father in Gallatin Gateway. In July of 1983 the father 

married Rose Reed. 

In June of 1983, the mother contacted the father about 

Jaime's return and the father indicated he would return 

Jaime at the end of the first week of July, 1983. 

On June 23, 1983, the father filed a petition in the 

Eighteenth Judicial District, Gallatin County, Montana, to 

modify the original custody decree. Based on the petition, 

the District Court granted the father temporary custody of 

the minor child. Custody was restored to the mother 

following a show cause hearing on August 5, 1983. Following 

a hearing on the petition to modify the prior decree on 

August 25, 1983, custody was returned to the father. On 

November 8, 1983, the District Court issued its findings of 

fact, conclusions of law, and an order granting the father's 

petition for modification of the custody decree. The order 

awarded permanent custody of Jaime to the father, with 

liberal and reasonable rights of visitation granted to the 

mother. 

The mother raises two issues in her appeal from the 

District Court order: 

(1) Did the District Court have subject matter 
jurisdiction to hear the father's petition to modify the 

prior custody decree? 

(2) Did the District Court err in concluding that the 

mother consented to the integration of the minor child into 

the home of the father? 

The mother's jurisdictional challenge is based upon 

section 40-4-211, MCA, which is incorporated into the 

Montana Uniform Child Custody Jurisdiction Act at section 

40-7-104, MCA. The mother contends that under section 

40-4-211, MCA the facts of this case required the District 

Court to decline jurisdiction in favor of a California 

forum. It is the father's position that section 40-4-211, 

MCA is not controlling, but that jurisdiction was conferred 

on the court under the common law doctrine of "continuing 

jurisdiction" in custody cases. 

In Wenz v. Schwartze (1979), 183 Mont. 166, 598 P.2d 

1086, cert. denied 444 U.S. 1071, (1980), this Court defined 

the scope of district court jurisdiction to modify a prior 

custody decree with interstate implications. In 

interpreting the Uniform Child Custody Jurisdiction Act, 

section 40-7-101, MCA, et. seq., we stated, "The Act 

establishes a two-tiered jurisdictional test which a court 

must find satisfied before it makes even an initial custody 

decree. . . " Wenz, supra at 178, 598 P.2d at 1093. 

The first tier of the Wenz test 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. Wenz, supra at 

178-79, 598 P.2d at 1093. 

The second tier is found in section 40-7-108, MCA, 
which grants the trial court 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." Further 

jurisdictional requirements arise when a decree of another 

state is already in force, which is not the case here. See 

Wenz, supra at 180-86, 598 P.2d at 1094-97. 

The father's reliance on the doctrine of "continuing 

jurisdiction" as being the sole jurisdictional test in 

interstate custody disputes is misplaced. Since the 

enactment of the Uniform Marriage and Divorce Act in 

Montana, the doctrine of continuing jurisdiction has been 

linked to section 40-4-219, MCA. Foss v. Leifer (1976), 170 

Mont. 97, 100, 550 P.2d 1309, 1311; Erhardt v. Erhardt 

(1976), 171 Mont. 49, 50-51, 554 P.2d 758, 759. Section 

40-4-219, MCA merely limits the authority of district courts 

to modify prior custody decrees, unless the factual 

threshold demanded by the statute is first established. 

According to the Commissioners' Note, that statute is 

"designed to maximize finality (and thus assure continuity 

for the child) without jeopardizing the child's interest." 

9A Uniform Laws Annotated 212 (master edition 1979) 

(hereinafter ULA). 

The function of section 40-4-211, MCA, on the other 

hand, is to actually confer subject matter jurisdiction upon 

a district court to hear custody matters with interstate 

implications. As the Commissioners explicitly state, 

section 40-4-211, MCA "governs jurisdiction to make an 

initial decree as well as a modification decree." 9 ULA 125 

(masters edition 1979). In those custody cases where a 
state other than Montana has a possible interest, the 

jurisdictional requirements of section 40-4-211, MCA must be 

met before a court may assert "continuing jurisdiction" 

under section 40-4-219, MCA. This position is corroborated 

by the Commissionerst Note to section 40-4-211, MCA: 

"The provisions of the [Uniform Marriage 

amd Divorce] Act concerning custody 

adjudication are integrated with the 

provisions of the Uniform Child Custody 

Jurisdiction Act . . . The latter Act 

deals with judicial jurisdiction to 

adjudicate a custody case when more than 

one state has an interest in the 

litigation. The Uniform Marriage and 

Divorce Act governs the substantive and 

procedural aspects of custody 

adjudication once the court has decided 

that it can and should hear the case on 

the merits." 9A ULA 194 (master edition 

1979 ) . 

We find that section 40-4-211, MCA is the premier 

jurisdictional hurdle which must be overcome before a 

district court may modify a child custody decree with 

interstate implications. 

In the instant case, the two-tiered jurisdictional 

test established in Wenz has been fully satisfied. 

Jurisdiction was conferred on the District Court under 

sections 40-4-211 and 40-7-108, MCA. 

Of the several alternative bases for conferring 

jurisdiction, subsection 40-4-211(1)(b) is the most 

pertinent to this matter: 

"(1) A court of this state competent to 

decide child custody matters has 

jurisdiction to make a child custody 

determination by inital or modification 

decree if: 

"(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 . . . " 

The parties agree that the father had a significant 

connection with Montana. However, appellant argues that 

Jaime lacked a significant connection with Montana due to 

the fact that she had spent all of her time from the date of 

her parents' divorce in October of 1979 through December of 

1981 with her mother in California. 

We note that section 40-4-211(1)(b), MCA does not 

require that the child's only significant connection be with 

Montana in order for a district court to assume 

jurisdiction. The statute requires - a significant 

connection. 

Here, the affidavit filed by the father provided the 

district court with ample evidence that Jaime had a 

significant connection with Montana. At the time the 

petition was filed on June 23, 1983, Jaime had spent over 

twelve months out of the previous eighteen with her father 

in Montana. From December of 1981 through July 4, 1982, 

Jaime resided with her father in Missoula and attended 

kindergarten there. From December of 1982 to the time the 

petition was filed, she resided with her father in Gallatin 

Gateway, Montana and attended first grade there. The 

father's affidavit indicates that Jaime had adjusted well to 

her school in Gallatin Gateway, and that she had made 

favorable progress both academically and socially. 

Furthermore, the father's affidavit states that Jamie had 
clearly expressed her desire to remain in school at Gallatin 

Gateway, as well as her desire to remain with the father's 

new family there. Jaime's preference in this regard was 

conclusively established at the August 5, 1983 hearing on 

the modification petition. 

Similarly, there was before the court "substantial 

evidence concerning the child's present or future care, 

protection, training and personal relationships." The 

record clearly indicated that during her visits to Montana 

Jaime developed strong familial bonds to the father's 

current family: Jaime's former babysitter and her two 

daughters. Evidence of a majority of Jaime's educational 

experience was located in Montana. Evidence of her 

relationships with her peers largely existed in Montana. 

Evidence of her care, treatment and home life in general for 

twelve of the eighteen months preceding the filing of the 

petition was available only in Montana. 

The mother objects that there was no evidence of 

Jaime's environment in California present in Montana. While 

this is a fact that a trial court must carefully consider in 

assuming jurisdiction, the statute requires only that 

substantial evidence exist in the state taking jurisdiction. 

The record clearly indicates that sufficient evidence 

of Jaime's present and future care, protection, training and 

personal relationships existed in Montana at the date of the 

petition to satisfy the "substantial evidence" requirement 

of section 40-4-211(1)(b), MCA. 

The second jurisdictional test required by Wenz 

demands that a court which has satisfied the prerequisites 

of section 40-4-211, MCR, then determine whether 
jurisdiction should be exercised. Section 40-7-108 states 

part that: 

"(1) A court which has jurisdiction under 

this chapter to make an initial or 

modification decree may decline to 

exercise its jurisdiction any time before 

making a decree if it finds that it is an 

inconvenient forum to make 3 custody 

determination under the circumstances of 

the case and that a court of another 

state is a more appropriate forum." 

Criteria for determining whether a court would constitute an 

inconvenient forum is provided in subsection (3) of section 

40-7-108, MCA. However, the decision to decline 

jurisdiction is entirely within the discretion of the trial 

court. Wenz, supra at 180, 598 P.2d at 1094. 

We find no abuse of the trial court's discretion in 

assuming jurisdiction to hear this case. 

The second issue is whether the District Court erred 

in ruling that the mother consented to the integration of 

the child into the home of the father. The controlling 

statute is section 40-4-219 (1) (b), MCA: 

"(1) 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 or that 

were unknown to the court at the time of 

entry of 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: 

"(b) The child has been integrated into 

the family of the petitioner with consent 

of the custodian." 

The mother argues that the District Court erred in 

failing to find an express intent on her part to consent to 

the integration of the child into the father's family. We 
disagree. 

The rationale for the consent requirement in the 

Uniform Act was to avoid non-custodial kidnapping. 9A ULA 

212, Commissioners' Note (master edition 1979). We are 

persuaded by the opinion of the Appellate Court of Illinois 

in In Re Custody of Burnett (1979), 394 N.E.2d 58, 60, that: 

"[Tlhe consent requirement [in the 

Uniform Act] is intended to ensure that 

the custodian acquiesced in the transfer 

of physical custody (e.g. to discourage 

non-custodial kidnapping), and the 

integration into the family of the 

petitioner, and should be viewed in that 

narrow context. The consent requirement 

is satisfied where as in this case the 

custodian had placed the child with the 

non-custodial parent and willingly 

permitted the child to become integrated 

in the new family." 

The Burnett decision properly focuses on the elimination of 

a motive for noncustodial kidnapping as the heart of the 

consent requirement. 

We find that where, as here, there is a voluntary 

transfer of the child's physical custody from the custodial 

to the non-custodial parent, which results in the child's 

integration into the non-custodial parent's family, the 

consent requirement of section 4Q-4-219(b) is satisfied. 

Consent of the custodial parent to the child's integration 

may be implied from the voluntary transfer of physical 

custody. 

While the mother contends that the record does not 

support the court's conclusion regarding the consent 

requirement, the standard of review employed by this Court 

requires only that the findings and conclusions of the trial 

court be supported by substantial credible evidence. In Re 

Marriage of Pickering (Mont. 1984), 678 P.2d 1146, 41 
"This Court will not substitute its 

judgment for that of the trier of fact. 

We will consider only whether substantial 

credible evidence supports the findings 

and conclusions. Findings will not be 

overturned unless there is a clear 

preponderance of evidence against them, 

recognizing that evidence may be weak or 

conflicting, yet still support the 

findings." Jensen v. Jensen (Mont. 

1981), 629 P.2d 765, 768, 38 St.Rep. 927, 

938. 

The record contains substantial evidence of the 

mother's acquiescence to both of Jaime's transfers from her 

home in California to the father's home in Montana. On the 

first occasion, the mother sent Jaime to live with her 

father in Missoula so that Jaime could avoid the atmosphere 

of grief in the mother's home following an unexpected family 

death. Jaime finished kindergrarten in Missoula and became 

aquainted with Rose Reed (Jaime's future step-mother) and 

her two young daughters. After a six month stay in Montana, 

Jaime returned to California, as agreed by the parties. 

Less than six months later, the mother again sent Jaime to 

Montana, interrupting her first grade year in school. 

Again, the record reveals that the mother willingly conceded 

to this transfer in custody. The mother knew Jaime was 

attending school in Montana. She was also aware of the 

father's new domestic situation and Jaime's reaction to it. 

The District Court found that Jaime was integrated 

into the father's new family as a result of the mother's 

having sent Jaime to Montana for the better part of the 

formative period involving her first two years of formal 

education. The court also found that under the 

circumstances, the appellant should have known that the 

child would become part of petitioner's family and home. 
The findings of the District Court are silpported by 

substantial credible evidence. The order of the District 

H 

Court is affirmed. -./ ,4' 

/' , 

We concur: 

Justice ,J' 

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