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
Submitted on briefs: January 31, 1980
Decided: PliAR 2 '7 1984
MAR 2 '5 19%
Filed:
Mr. Justice Daniel J. Shea delivered the Opinion of the Court.
Pamela McLean Seright, the mother of Brandy Lynn ~ c ~ l e a n ,
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 cus-
tody 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 dis-
solution 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 aban-
doned 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 connec-
tion with this issue, the mother argues that the trial court
abused its discretion in finding that the father had not aban-
doned 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 ~ , 2 d
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 sug-
gest that the father intended to regain custody of the child.
Furthermore, it appears the father's primary purpose in consent-
ing to adoption was to provide a healthy environment for the child
rather than to relinquish his parental duties. The father con-
sented 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 conclu-
sion 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 require-
ments 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 prepon-
derance 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 modifi-
cation 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 juris-
diction and denied the father's motion. The mother contends
that the court's conclusion that it had subject matter jurisdict-
ion 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 deter-
mined that it lacked jurisdiction. The court's order also re-
veals 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 relation-
ship 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.
appealed in forma pauperis to this Court.
position.
reversed.
She has
Nothing in the court's
findings of fact or order suggests that it considered her financial
Accordingly, this portion of the court's order is
With the exception of the award of costs to the father,
the court's order denying the mother's motion is affirmed.
award of costs is reversed.
Except as modified, the judgment of the District Court
is affirmed.
JUS
The
We concur:
Chief Justice