IN THE SURPEME COURT OF THE STATE OF MONTANA 

IN THE MATTER OF M. L. Y. AND M. Y. , Youth in need of care. 

IN Rl2 THE I.WRRIAGE OF 

MARVIN LEO YOTTER, 

Petitioner and Respondent, 

THERESA NEIL YOTTEK PIILLIAMSON, 

Respondent and Appellant. 

Appeal from: District Court of the Thirteenth Judicial District, 

In and for the County of Yellowstone, The Honorable 

Diane G. Barz, Judge presiding. 

Counsel of Record: 

For Appellant: 

Jones, Jones & Work; Blair Jones, Eillings,, 

For Respondent : 

Nye Law Firm; Jerrold L. Nye, Billings, Montana 

Harold Eianser , County Attorney, Billings, Montana 

Olsen, Christensen & Gannett; Damon L. Gannett, 

Billings, Montana 

Submitted on Briefs: October 7, 1982 

Cecided: December 16, 1982 

Filed: !!KC 1 6 1982 
Mr. Justice John Conway Harrison delivered the Opinion of the 

Court. 

This appeal was taken from a judgment of the District Court 

of the Thirteenth Judicial District declaring the custody of 

M.L.Y. and M.Y. Due to procedural error we must vacate the 

judgment of the District Court. 

The underlying consolidated actions were the latest of a 

series of disputes between the husband and wife since their 

divorce in 1978. At the time of divorce the parties entered into 

a custody and support agreement. This agreement was incorporated 

in the decree of dissolution. Theresa was to be the custodial 

parent of the two children. Although the decree of dissolution 

granted reasonable visitation, it appears that Theresa "continued 

to interfere with and block visitation attempts made by Marvin 

In August 1979 , Marvin traveled to South Dakota, the residence of Theresa and the children, and filed a motion for change 

of custody. A hearing was held and a visitation agreement was 

entered into ; unfortunately, the parties continued to fight over 

visitation rights. In early 1980, Theresa moved to Arizona 

without in£ orming Marvin of her whereabouts. Marvin later 

located his ex-wife and children and went to Arizona. On May 

27, 1980, he entered into another visitation agreement with 

Theresa; he would take the children to Montana for the summer and 

would allow the children to return to Arizona on or about August 

15. Marvin returned to Montana with the children and filed a 

motion for change of custody in District Court of Yellowstone 

County on July 8. An amended motion for change of custody was 

filed on August 5. On August 28, District Judge Charles Luedke 

denied Marvin's amended motion without hearing. Marvin disputed 

Judge Luedke's order denying his motion and filed a notice of 

appeal on September 9. However, on September 26, Marvin filed a 

document entitled "Withdrawal of Appeal. " 

During this time period, Theresa came to Montana to regain 

custody of M.L.Y. and M.Y. Theresa was not able to find the 
children. Marvin, intending to frustrate Theresa's efforts to 

regain custody, had sent the children to Utah with his present 

wife. Twice during the month of September Marvin was arrested 

for custodial interference. On September 30, the State became 

involved by filing a petition for temporary investigative 

authority and protective services. The District Court then 

ordered the children placed in foster care pending final disposition. 

On November 20 , Marvin was successful in persuading the court 

to order the children removed from foster care and placed in his 

custody. On the same day, Marvin filed a petition for change of 

custody and a motion to consolidate the dependency and neglect 

proceedings with his custody action. On that day Judge Luedke 

ordered consolidation. 

A lengthy trial ensued. A final order was entered on 

November 9, 1981. The Department of Social and Rehabilitation 

Services was granted legal custody of the children until age 

eighteen, and Marvin was granted guardianship and physical 

custody until age eighteen. Theresa was granted reasonable 

rights of visitation. On December 8, 1981, Theresa filed a 

notice of appeal. 

The appellant has raised several issues concerning various 

actions of the District Court in relation to jurisdiction and the 

consolidation of the custody action and the dependency and 

neglect action. First, appellant claims the District Court did 

not have jurisdiction over the custody action since the father 

had filed a notice of appeal, thus transferring jurisdiction to 

this Court. Second, notwithstanding the jurisdictional argument, 

appellant contends it was error to consolidate the two causes 

because to do so was prejudicial; " [tlhe custodial parent should 

not be required to defend against the State of Montana and the 

noncustodial parent seeking custody in one and the same action ." 

We need only address the first issue. 

Appellant argues that since a notice of appeal was filed by 
her husband from dismissal of his amended motion for change of 

custody, the jurisdiction over the parties and the subject matter 

had passed to this Court, leaving the District Court without 

authority to assert jurisdiction over the subsequent petition for 

change of custody. At this time we must restate the chronology 

of various documents: 

1. On August 28, 1980, the District Court denied the 

father's amended motion for change of custody. 

2. On September 9 , 1980, the father filed a notice of 

appeal. 

3. On September 26, 1980, the father filed with the District 

Court a document entitled ''Withdrawal of Appeal." 

4. On November 20, 1980, the father filed a petition for 

change of custody and a motion to consolidate his petition with 

the dependency and neglect action filed by the Yellowstone County 

Attorney's Office. On the same day the District Court ordered 

consolidation. 

Initially, we note that the husband's notice of appeal was 

timely; it was filed within thirty days of the District Court's 

denial of the motion for change of custody. See Rule 5, 

M.R.App.Civ.P. Such a timely filing vests this Court with jurisdiction. In Julian v. Buckley (1981), - -- Mont . _ , 625 

P.2d 526, 528, 38 St.Rep. 128, 130, we stated: " [sjince 1954 it 

has been an established rule in Montana that when a notice of 

appeal has been filed, jurisdiction over the parties to the 

controversy and subject matter passes from the District Court and 

vests in the Supreme Court." 

It is argued that the appeal was never perfected because the 

fee was not paid nor was the record transferred, and as a consequence, jurisdiction was never acquired by this Court. 

However, the proponents of this argument overlook a statement in 

the comments to Rule 4, M.R.App.Civ.P.: " [n] othing other than 

the filing of a notice of appeal in the District Court is 

required for the perfecting of an appeal." Annotations to MCA, 
540 

Vol. 3, Title 25, p. 543. On September 9, 1980, the date the 

notice of appeal was filed with the District Court, this Court's 

jurisdiction was invoked. 

On September 26, 1980, the father filed a document with the 

District Court indicating his intentions to withdraw his appeal. 

The document simply said "NOW COMES the Petitioner and withdraws 

his appeal herein. DATED this 26th day of September, 1980." 

Rule 36, M.R.App.Civ.P. states that " [i]f an appeal has not been 

docketed the appeal may be dismissed by the court from which the 

appeal was taken . . . upon motion and notice by the appellant." 

Nothing in the record indicates either motion or notice. We must 

conclude that the father's document entitled "Withdrawal of 

Appeal" was not sufficient to divest this Court of its jurisdiction. "Whether or not the appellant . . . will be permitted to 

dismiss or withdraw his appeal . . . is a matter within the 

discretion of the court, and not a matter of right on the part of 

the appellant . . ." 5 Arn.Jur.2d - Appeal - . and - -- Error - Section 920 

(1962). 

The rules of appellate civil procedure must be followed, here 

they were not. Consequently, when the father filed a petition 

for change of custody on November 20, 1980, the District Court 

was without jurisdiction and it was error to enter an order of 

consolidation. 

Montana law is clear, once a notice of appeal is filed, 

jurisdiction over the subject matter vests in the Supreme Court 

and it "becomes the Supreme Court's duty to maintain the status 

quo of the parties until the controversy can be determined ." 

Jul ian , -- - - .- - Mont. at - , 625 P.2d at 528, 38 St.Rep. at 130. 

We vacate the orders of the District Court dated August 24, 

1981, and November 9, 1981. In the interests of minimizing harm 

to the children, we reinstate the order of the court dated 

November 20, 1980, placing the children in temporary custody of 

the natural father. If the state or if the father choose to 

reinstitute proceedings, they may do so within thirty days from 
the date this decision is handed down, without prejudice. 

However, if no proceedings are initiated, the District Court must 

uphold the mother's custody rights by ordering the children 

returned to her care. 

4 

ustice 

':Je concur: