### No. 85-06 INTHE SUPREME COURT OF THE STATE OF MONTANA 1985

IN RE 

### THE LWRRIAGEOF 

### LYNDA SUE BROWN, Petitioner and Appellant, and DAVIDWAYNE BROWN, Respondent and Respondent.

APPEAL FROM: District Court of the Eighteenth Judicial District, Inand for the County of Gallatin, The Honorable Thomas Olson,Judgepresiding.

COUNSEL OF RECORD:

ForAppellant: McKinley Anderson, Bozeman,Montana

For Respondent: 

### Ronald A. Saper,Phoenix,Arizona

Submitted on Brief: June 13, 

### 1985 necid,ed: 

### September 10, 

### 1985
Filed: 

## SEP1

## d

## 1985

t 

# *,Ad

ClerkMr. 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 allproceedings inMontana and deferringtoArizona'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 inUtah. They had two children before separating early in 1984. At the 

### timeof the separation they resided inArizona. However, the petitioner leftArizona and came toMontana withtheyoungest child sometime in early 1984. Apparently, on July 14, 1984, although the date 

### is in question, she returned toArizona in order tobring the older child

### back with her toMontana. 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 fortemporary custody and support, thepetitioner did not appear or respond. The Arizona court, after thehearing on August 13, 1984, awarded temporary custody of the children totherespondent. 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, theMontana and Arizona courts jointly ordered an oral argument on the issueof jurisdiction to take place by telephone conference on November 5, 1984. Both judges and counsel for petitioner and respondent participated intheconference. 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 inArizona on or prior tothe hearing date. Petitioner appeals this order and raises the following issues: (1) Should Montana take jurisdiction todetermine the custody and support of theminor children? (2) Was theDistrictCourt required toappoint counsel for theminor children?(3) Were the petitioner or the minor children denied due process orany otherconstitutional rights? (4) Was the petitioner entitled to an evidentiary hearing inMontana? 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, todetermine whether a state has a sufficient interest 

### totake 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 statebecause of hisremoval 

### 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 atleast one contestanthave 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 stateand: 

### (i)hasbeen abandoned; 

### or(ii) it 

### is necessary in an emergency to protecthim because hehasbeen subjected to or threatened with mistreatment or abuse or 

### is neglected or dependent; or (d) 

### (i)no other statehasjurisdiction under prerequisites substantia1 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 statewithin 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 inMontana, any evidence regarding theirprior 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 eitherabandonment orthenecessityof 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 thechildren's residence and home stateand could and did take jurisdiction under subsection (1)(a), thus subsection (l)(d)provides no authority forMontana toassume 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 

### itsjurisdiction under thischapter ifat 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 thisstate

### isa more appropriate forum or forother reasons. Here, the proceedings in Arizona, the state of residence,



### were filed prior to those in Montana and Arizona had not stayed 

### itsproceedings. Thus, under this section theMontana courtproperly declined toexercise

### itsjurisdiction. 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

### isorrecently was the child'shome state and the availability of evidence in the other state. The 

### District Court's decision tostayproceedings would have been proper under this statuteaswell. Wehold thattheDistrict Court correctly stayed Montana proceedings and correctly ordered, in conjunction with the Arizona court, that jurisdiction 

### rests inArizona. 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 tothe 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, equalprotection, and a speedy remedy when the District Court stayed Montana's proceedings, leaving Arizona's court system astheonly forum for her claims. She supports these contentions by directing

our attentiontothe lack of testimony, cross-examination and proper hearing inArizona. Petitioner's action in failingto appear after notice was the reason forthe lack of testimony and cross-examination. The Arizona forum remains open toher and, 

### if respondent fails to proceed, then the door to Montana's court system 

### willopen. 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 theDistrictCourt 

### isaffirmed.

" 1 Justice, /'

### We concur: H