INTHE SURPEME COURT OF THE STATE OF MONTANA

INTHE MATTER OF M.L.Y. AND M.Y.

### , Youth inneed of care. INRl2 THE I.WRRIAGEOF MARVIN LEO YOTTER, Petitioner and Respondent,

THERESA NEIL YOTTEK PIILLIAMSON, Respondent and Appellant.

Appeal from: DistrictCourt of theThirteenthJudicial District, In and fortheCounty 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; JerroldL. Nye, Billings, Montana Harold Eianser

## , County Attorney, Billings, Montana Olsen, Christensen & Gannett; Damon L. Gannett, Billings, Montana

Submittedon Briefs: October 7, 1982 Cecided: December 16, 1982

Filed: 

## !!KC 16

## 1982Mr. 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 theDistrict Court. The underlying consolidated actions 

### were the latest of a series of disputes between the husband and wife since their divorce in 1978. Atthe timeof 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 thatTheresa "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 fightover 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; hewould take the childrento Montana forthe summer and would allow the children to return to Arizona on orabout 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 thechildren. 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 childrenplaced in foster

### care pending final disposition. On November 20

## ,Marvin

### was successful inpersuading the court to order the childrenremoved from fostercare and placed inhis 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 actionsof theDistrict Court inrelation

### 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 thisCourt. Second, notwithstanding thejurisdictional argument, appellant contends it was 

### error to consolidate the two causes because todo sowas prejudicial; 

### "[tlhecustodial parent should not be required to defend against the State of Montana and the noncustodial parent seeking custody inone and the 

### same action

# ."

Weneed onlyaddress the firstissue. Appellant argues that since a notice of appeal 

### was filed byher husband from dismissal of his amended motion for change of custody, thejurisdiction over the partiesand the subjectmatter had passed to this Court, leaving the District Court without authority

### to assertjurisdiction over the subsequent petition for change of custody. Atthis time 

### we must restate the chronology of variousdocuments: 1. On August 28, 1980, the District Court denied the father's amended motion forchange of custody. 2. On September 9

## , 1980, the father filed a notice of appeal. 3. On September 26, 1980, the fatherfiledwith theDistrict 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 hispetition with thedependency and neglect actionfiledby theYellowstone 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 filingveststhisCourtwithjurisdiction. InJulianv. 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 controversyand subject

### matter passes from theDistrict Court and vests inthe SupremeCourt." 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 thisargument 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 filedwith the District Court, thisCourt'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 inthe record indicates eithermotion 

### or notice. Wemust conclude that the father's document entitled "Withdrawal of Appeal" 

### was not sufficientto divest this Court of its jurisdiction. "Whether 

### or not the appellant

# .. . willbe permitted to dismiss or withdraw his appeal 

# . .

# . is 

### a matter within the discretionof the court, and not a 

### matter of righton thepart of the appellant

# ..." 5 Arn.Jur.2d - Appeal -

. and -

-- Error - Section 920 (1962). The rules of appellate civilproceduremust 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 fromthe date this decision 

### is handed down, without prejudice. However, if no proceedings are initiated, theDistrict Courtmust uphold the mother's custody rights by ordering the children returned toher 

### care.

4 ustice ':Je concur: