No. 85-06 

IN THE SUPREME COURT OF THE STATE OF MONTANA 

1985 

IN RE THE LWRRIAGE OF 

LYNDA SUE BROWN, 

Petitioner and Appellant, 

and 

DAVID WAYNE BROWN, 

Respondent and Respondent. 

APPEAL FROM: 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: 

McKinley Anderson, Bozeman, Montana 

For Respondent : 

Ronald A. Saper, Phoenix, Arizona 

Submitted on Brief: June 13, 1985 

necid,ed: September 10, 1985 

Filed: SEP 1 d 1985 

t *, Ad 

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

Court. 

The petitioner appeals from an order of the District 

Court of the Eighteenth Judicial District, Gallatin County, 

staying all proceedings in Montana and deferring to Arizona's 

jurisdiction with regard to the custody of minor children. 

We affirm. 

Oavid Wayne Brown, respondent, and Lynda Sue Brown, 

petitioner were married on February 2?, 1982 in Utah. They 

had two children before separating early in 1984. At the 

time of the separation they resided in Arizona. However, the 

petitioner left Arizona and came to Montana with the youngest 

child sometime in early 1984. Apparently, on July 14, 1984, 

although the date is in question, she returned to Arizona in 

order to bring the older child back with her to Montana. The 

respondent alleges petitioner accomplished this by entering 

his residence with three unknown males who assaulted him 

while she removed the child. During a telephone conference 

on the question of jurisdiction, counsel for petitioner 

stated to the court that petitioner resided in Arizona from 

about October 1982 through June 1984. 

On July 13, 1984, the respondent petitioned the 

Superior Court of Arizona for a dissolution of the marriage 

between himself and the petitioner. Service was initially 

accomplished through publication and on September 14, 1984, 

by registered mail. The respondent also petitioned the 

Arizona court for temporary custody of the childr~n and for 

child support from the petitioner. Although she received 

notice on August 9, 1984 of a show cause hearing in Arizona 

on an order for temporary custody and support, the petitioner 

did not appear or respond. The Arizona court, after the 
hearing on August 13, 1984, awarded temporary custody of the 

children to the respondent. 

The petitioner filed for a legal separation from 

respondent in Montana on July 20, 1984. She requested, and 

was granted, temporary custody of the children by the 

Montana court that same day pending a hearing. 

The respondent moved to dismiss the Montana court's 

temporary order on October 18, 1984 on the grounds that 

Arizona had jurisdiction because the family had resided in 

Arizona for an extended time prior to the filing of the 

action and because the children were forcibly removed from 

Arizona. On October 26, 1984, the Montana and Arizona courts 

jointly ordered an oral argument on the issue of jurisdiction 

to take place by telephone conference on November 5, 1984. 

Both judges and counsel for petitioner and respondent 

participated in the conference. 

On November 19, 1.984, the judges signed a joint order 

conferring jurisdiction of the custody issue in Arizona; 

staying proceedings in Montana; setting a hearing for 

December 27, 1984 on the issue of custody and support before 

an Arizona domestic relations judge; ordering the petitioner 

to be personally present at the hearing; and ordering the 

minor children to be present in Arizona on or prior to the 

hearing date. 

Petitioner appeals this order and raises the following 

issues: 

(1) Should Montana take jurisdiction to determine the 

custody and support of the minor children? 

(2) Was the District Court required to appoint counsel 

for the minor children? 
(3) Were the petitioner or the minor children denied 

due process or any other constitutional rights? 

(4) Was the petitioner entitled to an evidentiary 

hearing in Montana? 

The Uniform Child Custody Jurisdiction Act (UCCJA) 

addresses jurisdiction in custody cases where more than one 

state has an interest in the litigation. According to 

S 40-7-104, MCA, we look to the provisions of S 40-4-211, 

MCA, to determine whether a state has a sufficient interest 

to take jurisdiction. 

(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 proceeding 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 

fb) 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, snd 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 substan tia 1 ly in 

accordance with subsections (1) (a), 

(1) (b) , or (1) (c) of this section . . . 

In the case at bar, Montana is not the home state of the 

children and was not their home state within the prior six 

months. Both parties recognize that the family resided in 

Arizona from 1982 until June 1984. Thus Montana cannot 

assume jurisdiction under (1) (a) of fj 40-4-211, MCA. 

Further, neither child has any significant past connection 

with this state. They never resided in Montana prior to 

their mother's return in June or July 1984. While some 

evidence about the children's current and possible future 

care is in Montana, any evidence regarding their prior care, 

protection, training, and personal relationships would be in 

their resident state, Arizona, rather than Montana. Thus, 

Montana cannot assume jurisdiction under (1) (b) of 

S 40-4-211, MCA. (1) (c) requires the child's physical 

presence and either abandonment or the necessity of emergency 

protection. Petitioner does not suggest abandonment and 

alleges no emergency situation that would require Montana's 

jurisdiction rather than Arizona's jurisdiction. Finally, 

Arizona was the children's residence and home state and could 

and did take jurisdiction under subsection (1) (a), thus 

subsection (l)(d) provides no authority for Montana to assume 

jurisdiction. 

Even assuming Montana has the authority under this 

section to hear this custody battle, several provisions of 

UCCJA would confer jurisdiction in the Arizona court. 

Section 40-7-107(1), MCA provides: 
A court of this state may not exercise 

its jurisdiction under this chapter if at 

the time of filing the petition a 

proceeding concerning the custody of the 

child was pending in a court of another 

state exercising jurisdiction 

substantially in conformity with this 

chapter unless the proceeding is stayed 

h17 the court of the other state because 

this state is a more appropriate forum or 

for other reasons. 

Here, the proceedings in Arizona, the state of residence, 

were filed prior to those in Montana and Arizona had not 

stayed its proceedings. Thus, under this section the Montana 

court properly declined to exercise its jurisdiction. 

Section 40-7-108, MCA permits a court to decline to 

exercise jurisdiction if it finds that another state is a 

more appropriate forum. The factors that may be considered 

include which state is or recently was the child's home state 

and the availability of evidence in the other state. The 

District Court's decision to stay proceedings would have been 

proper under this statute as well. We hold that the District 

Court correctly stayed Montana proceedings and correctly 

ordered, in conjunction with the Arizona court, that 

jurisdiction rests in Arizona. 

Section 40-4-205, MCA states: 

[Tlhe court may appoint an attorney to 

represent the interests of a minor 

dependent child with respect to his 

support, custody, and visitation . . . 

The sole concern of the court below was whether jurisdiction 

to determine those issues should be in Montana or Arizona. 

Section 40-4-205, MCA applies to the substantive issues, not 

to the question of jurisdiction. The District Court 

committed no error in n.ot appointing an attorney for the 

children. 
In the third issue, petitioner contends that she and 

her children were denied due process, equal protection, and a 

speedy remedy when the District Court stayed Montana's 

proceedings, leaving Arizona's court system as the only forum 

for her claims. She supports these contentions by directing 

our attention to the lack of testimony, cross-examination and 

proper hearing in Arizona. Petitioner's action in failing to 

appear after notice was the reason for the lack of testimony 

and cross-examination. The Arizona forum remains open to her 

and, if respondent fails to proceed, then the door to 

Montana's court system will open. We find these contentions 

without merit. 

Finally, petitioner argues that UCCJA conflicts with 

the "best interests of the child" test enunciated in 

S 40-4-212, MCA and that the telephone conference regarding 

jurisdiction was not adequate as an evidentiary hearing. 

There is no conflict between the rules for determining 

jurisdiction when two states have an interest in a custody 

matter and the rules for determining custody. One is a 

procedural determination as to the proper forum, made prior 

to any substantive inquiry, and the other is the application 

of substantive rules. The telephone conference addressed 

only the procedural issue, thus evidence concerning the 

parental abilities of the parties or alleged misconduct of 

either would have been unnecessary and inappropriate. We 

hold that no evidentiary hearing was required under these 

circumstances. 

The order of the District Court is affirmed. 

" 

1 

Justice, /' 
We concur: H