No. 79-6 

IN THE SUPREME COURT OF THE STATE OF MONTANA 

1980 

IN RE THE MARRIAGE OF: 

WALT DALE McLEAN, 

Petitioner and Respondent, 

VS. 

PAMELA McLEAN SERIGHT, 

Respondent and Appellant. 

Appeal from: District Court of the Eighth Judicial District, 

Honorable H. William Coder, Judge presiding. 

Counsel of Record: 

For Appellant: 

Richard Ganulin, Great Falls, Montana 

For Respondent: 

Alexander and Baucus, Great Falls, Montana 

MAR 2 '5 19% 

Filed: 

Submitted on briefs: January 31, 1980 

Decided: PliAR 2 '7 1984 
Mr. Justice Daniel J. Shea delivered the Opinion of the Court. 

Pamela McLean Seright, the mother of Brandy Lynn ~c~lean, 

appeals the order of the Cascade County District Court which 

denied her motion to modify provisions for custody contained in 

the court's decree of dissolution. The mother's appeal rests 

entirely on her contention that the father, Walt Dale McLean 

abandoned the child, and therefore that she is entitled to custody as a matter of law. 

The parties were married in July 1974, and had one child, 

Brandy Lynn McLean, who was born on August 3, 1975. On January 

27, 1976, the father petitioned the court for a decree of dissolution and for custody of the child. The court's decree of 

December 23, 1976 dissolved the parties' marriage and placed 

custody of the child in the father. On October 16, 1978, the 

mother petitioned the court for modification of its decree of 

dissolution insofar as it awarded custody to the father. The 

father filed a motion to quash the mother's motion on the basis 

that the court lacked jurisdiction. The court held a show cause 

hearing on the motion to quash and found it had both personal and 

subject matter jurisdiction. After conducting a hearing, the 

court filed an order dated June 14, 1979 which denied the motion 

to modify and awarded costs and expenses to the father. The 

mother appeals this order. 

The mother presents two issues concerning custody, each 

of which is based upon her contention that the father has abandoned the child. She asserts that section 40-6-221, MCA, rather 

than the Uniform Marriage and Divorce Act (UMDA) applies to the 

present case. Furthermore, she contends that even if the UMDA 

applies here, that she is entitled to custody because the father's 

surrender of physical custody to a third party has threatened 

the welfare of the child. She also contends that the court failed 
to consider the financial resources of the parties prior to 

awarding costs to the father. 

The mother's first contention is that she is entitled 

to custody of the child according to the provisions of section 

40-6-221, MCA. This section provides in part that "[Ilf either 

parent . . . has abandoned his or her family, the other is 

entitled to the custody . . . of the child . . ." In connection with this issue, the mother argues that the trial court 

abused its discretion in finding that the father had not abandoned the child. 

The father obtained custody of the child according to 

the provisions of the December 1976 decree of dissolution. Soon 

after the dissolution, the father who was then a member of the 

U. S. Army was reassigned to Oklahoma where he resided with the 

child until November 1977. After his discharge, he returned to 

Great Falls. In May 1978, the father transferred physical custody 

of the child to his brother and sister-in-law who reside in 

Marquette, Michigan. The father remained in Great Falls until 

the fall of 1978 when he moved to San Diego, California. At the 

time of the transfer, the father signed and delivered a custodial 

care authorization to his brother and in August 1978 sent his 

brother a letter asking him to adopt the child. The wife argues 

that the father's surrender of physical custody and letter to his 

brother established as a matter of law the father's abandonment 

of the child. 

Without attempting to state any precise definition, we 

recognize that evidence of the parent's intent to escape his or 

her parental duties is an important factor in determining whether 

abandonment has occurred. See Pratt v. Bishop (N.C. 1962), 257 

126 

N.C. 486,/~.E.2d 597, 608; 2 C.J.S. Adoption of Persons S61(a), 

p. 481, et seq. To constitute abandonment, a natural parent's 
surrender of physical custody must be accompanied by some act 

indicating the transfer was not intended to be temporary. See 

Matter of Guardianship of Doney (1977), 174 Mont. 282, 570 ~,2d 

575; State v. District Court, Gallatin County (1957), 132 Mont. 

357, 318 P.2d 571. The trial court's decision concerning child 

custody will not be disturbed unless there is a clear abuse of 

discretion. See Lee v. Gebhardt (1977), 173 Mont. 305, 567 P.2d 

466. 

There is ample evidence in the record to support the 

trial court's conclusion that abandonment did not occur. After 

his discharge from the Army, the father was temporarily unemployed, 

He transferred custody of the child to his brother in order to 

attend vocational school and thereby acquire steady employment. 

Thus, the circumstances surrounding the transfer of custody suggest that the father intended to regain custody of the child. 

Furthermore, it appears the father's primary purpose in consenting to adoption was to provide a healthy environment for the child 

rather than to relinquish his parental duties. The father consented to adoption in order to protect the brother's custody of 

the child from challenges by third parties and the mother. Thus, 

the father's consent was contingent upon the mother's release of 

any claim to the child. We find no error in the court's conclusion that abandonment did not occur, or in its failure to apply 

section 40-6-221, MCA,to this case. 

The mother contends that even under the UMDA's requirements for modification of custody, she is entitled to custody of 

the child. In 1979, the Montana State Legislature deleted the 

affidavit requirement for motions to modify custody filed within 

two years of the prior decree. See section 40-4-219(1), MCA, 

(amended). However, in 1978, this requirement was still in effect 

and it required the mother to accompany her motion, which was 

filed within two years of the decree of dissolution, with an 
affidavit establishing that "there is reason to believe the 

child's present environment may endanger seriously his physical, 

mental, moral, or emotional health." See section 40-4-219(1), 

MCA, (unamended). The mother filed an affidavit in support of 

her motion but the court found that the mother failed to show 

"any harm to the child in her present environment, the preponderance of the evidence being clearly to the contrary." 

The affidavit required under unamended section 40-4-219 

(I), MCA, is a jurisdictional prerequisite to a court's modification of its custody decree. See Strouf v. Strouf (1978), 

34 St.Rep. 626. 

Mont. , 578 P.2d 746,/ Prior to the court's order refusing 

modification, the father filed a motion to quash based on the 

court's lack of jurisdiction over the child. The court issued an 

order finding that it had both personal and subject matter jurisdiction and denied the father's motion. The mother contends 

that the court's conclusion that it had subject matter jurisdiction implicitly rested on a finding that her affidavit in support 

of the motion to modify was sufficient. 

There is no merit in this argument. At the hearing on the 

wife's motion, the husband's counsel asked the court whether it 

had implicitly ruled on the sufficiency of the affidavit. The 

court stated that it would review the jurisdictional issue raised 

by the affidavit requirement and dismiss the motion if it determined that it lacked jurisdiction. The court's order also reveals that it had not already determined the sufficiency of the 

affidavit as the court stated in language tracking section 40-4- 

219(1), MCA, that the affidavit was insufficient. 

The mother's final argument concerning child custody is 

that the court abused its discretion in determining that the 

child's present environment did not endanger the child's welfare. 

The mother argues that the father has abandoned the child and 

thus, that the court erred in determining the adequacy of the 
father's custody in terms of the care provided by the brother. 

We have already concluded however, that the record supports the 

conclusion that the father did not abandon the child. The father 

has completed truck driving school, and is now employed as a 

truck driver. Although his work requires that he be away from 

the child for weeks at a time, the father maintains his legal 

residence at the brother's home. The father spent one month in 

1979 residing at the brother's home, and the child recognizes 

that the father is her natural father. Under these circumstances 

the court properly considered the child's environment in relationship to her actual living circumstances. The evidence presented 

at the hearing on the mother's motion established that the child 

lives in very pleasant surroundings which enhance rather than 

threaten her physical and emotional well-being. 

The court awarded to the father his costs and expenses 

for defending against the motion. The court has authority to 

award costs here only if the award is equitable in light of the 

financial resources of each party. See section 40-4-110, MCA. 

The father is employed while the mother is indigent. She has 

appealed in forma pauperis to this Court. Nothing in the court's 

findings of fact or order suggests that it considered her financial 

position. Accordingly, this portion of the court's order is 

reversed. 

With the exception of the award of costs to the father, 

the court's order denying the mother's motion is affirmed. The 

award of costs is reversed. 

Except as modified, the judgment of the District Court 

is affirmed. 

+ JUS 
We concur: 

Chief Justice