In Re the Marriage of Lance

NO. 84--223

I N TBE SUPREME COURT OF THE STATE O F MONTANA

1984

IIJ THE MARRIAGE O F
DALE ELLYS LANCE,

P e t i t i o n e r & Respondent,

and

JOHN F E S L E R LMJCE,

R e s p o n d e n t and A p p e l l a n t .

I N RE THE CUSTODY OF
BRADLEY JOHN LANCE AND C H R I S T I N A
DALE LANCE.

APPEAL FROM: D i s t r i c t C o u r t of t h e F o u r t h J u d i c i a l D i s t r i c t ,
I n and f o r t h e C o u n t y of M i s s o u l a ,
T h e H o n o r a b l e M i c h a e l K e e d y , Judge p r e s i d i n g .

COUNSEL OF RECORD:

For Appellant:

J o h n F. L a n c e , p r o se, F l o r e n c e , M o n t a n a

F o r Respondent :

H a r r i s & H a r r i s ; M a r k W. H a r r i s , E v a n s t o n , Wyoming
Ferguson & M i t c h e l l ; C a r o l A. liIitchel1, M i s s o u l a ,
Montana

--
S u b m i t t e d on B r i e f s : A u g u s t 30, 1984

Decided: O c t o b e r 31, 1 9 8 4

OCT 3 1 1984
Filed:

- -
Clerk
 The Fourth Judicial District Court, County of
Missoula, dismissed a custody modification petition and
motion for placement of children in a foster home for lack
of subject matter jurisdiction. The petitioner below, John
Fesler Lance, appeals. We affirm the decision of the
District Court.
The marriage of Dale Ellys Lance (now Willavize) and
John Fesler Lance, the father and appellant, was dissolved
by dscree in the Fourth Judicial District on March 29, 1979.
Custody of the minor children of the marriage, Bradley and
Christina, was awarded to Dale Lance, the mother and
respondent. In late June or early July of 1982, the mother,
her new husband, and the two children moved to Wyoming,
where the husband had secured a position as a high school
principal. Since that time, the mother, her husband and the
two children have continued to reside in Wyoming, where Brad
and Christina attend school.
On March 3, 1983, the father, a pro se litigant, filed
a petition for modification of the custody provision of the
1979 decree of dissolution. On June 30, 1983, the father
filed a second document, captioned "Motion for Placement of
Children in Foster Home," in which the father requested that
Brad and Christina be removed from Wyoming and placed in a
foster home near his residence in Florence, Montana. The
motion asked that the children be kept in a foster home
until the March, 1983 petition for modification had been
ruled upon. Because the motion was brought under section
40-4-219, MCA, Montana's custody modification statute, we
will hereafter refer to it as a petition for custody
modification. The petition to modify custody by placing the

children in a foster home was heard on September 22, 1983.
On that date, the mother moved the court to dismiss both

custody modification petitions for lack of subject matter
jurisdiction. The jurisdictional issue was argued by the
parties at the hearing, and the court also set a briefing
schedule on that issue. Briefs were submitted by both
parties, and on February 14, 1984, the District Court issued
its memorandum order dismissing both petitions for lack of
jurisdiction. The father filed a "Motion for
Reconsideration" of the District Court's order on February
27, 1984, along with a supporting brief which was filed on
March 5, 1984. The motion for reconsideration was denied by
the court on March 16, 1984, and the father appeals.
Succinctly stated, the father's first issue on appeal

is whether the District Court erred in entertaining the
mother's motion to dismiss, which was made on the same day
as the hearing on the father's petitions for custody
modification.
The father argues that the mother's motion to dismiss

for lack of subject matter jurisdiction was improperly made,
and therefore should not have been considered by the court.
According to the father, the motion was defective in that it
was captioned as a "Response to Motion for Placement of
Children in Foster Home," and contained no "formal" motion
to the court.
The mother's "Response" was filed in District Court on
September 22, 1983, and stated in paragraph I, "[slaid
motion must be dismissed because this Court lacks personal
jurisdiction and jurisdiction of the subject matter of
custody and visitation, much less foster care placement,
pursuant to sections 42-4-211 and 42-2-108, Y.C.A."
Paragraph IV concludes, "[w]herefore, Petitioner requests
the Court dismiss Respondent's petition for modification and
Motion for Placement in Foster Home. .. " The mother also

raised her jurisdictional challenge orally at the September
22, 1983 hearing on the father's custody modification

petitions.
Rule 12(h)(3), M.R.Civ.P., provides that "[wlhenever
it appears by suggestion of the parties or otherwise that
the court lacks jurisdiction of the subject matter, the
court shall dismiss the action." (Emphasis provided. ) We
find that the mother's allegations of lack of subject matter
jurisdiction were entirely adequate under Rule 12(h)(3) to

bring the issue before the District Court.
The father also maintains that the mother's "Response"
was defective because it contained two miscited statutes.
This argument lacks merit because correct statutory
citations were given in the mother's supporting brief which

was filed with her "Response." It is also clear that the
mother filed a document entitled "Notice of Corrections of
'Response to Motion for Placement of Children in Foster
Home, I " on October 7, 1983, a copy of which was mailed to

the father. The "Notice of Corrections" absolved the
clerical errors in the original document.

The father further contends that under section
40-4-216 (I), MCA, which states that I [c]ustody proceedings
'
shall receive priority in being set for hearing," the trial
court should have ruled on the custody matter before
deciding the issue of whether it had subject matter
jurisdiction. Similarly, the father argues that because the
court assumed jurisdiction in presiding over the September
22, 1983 hearing on the custody modification petitions, it

was precluded from dismissing the case for lack of subject
matter jurisdiction. Regarding both of these arguments, we
simply note that it is a fundamental axiom of our legal
system that the issue of subject matter jurisdiction may be
invoked at any time in the course of a proceeding. Larrivee
v. Norigeau (1979), 184 Mont. 187, 192, 602 P.2d 563, 566,
cert. den. 445 U.S. 964, 100 S.Ct. 1653, 64 L.Ed.2d 240;
Corban v. Corban (1972), 161 Mont. 93, 96, 504 P.2d 985,

987. Furthermore, once the issue is raised and a court
determines that there is a lack of subject matter
jurisdiction, it can take no further action in the case
other than to dismiss it. Rule 12 (h)(3), P4.R.Civ.P.
Because the mother challenged the District Court's
jurisdiction on September 22, 1983, the same day as the
hearing on the father's petitition for custody modification,
the father maintains that he had neither notice nor an
opportunity to be heard on the jurisdictional issue, as
required by section 40-7-105, MCA. Yet the record reveals
that not to be the case, for the father was provided with an
opportunity to respond to the jurisdictional challenge at

the hearing, and did respond at length. Furthermore, the
court refused to rule on the issue of jurisdiction until
both parties were given a mutually satisfactory amount of
time in which to brief the court. Indeed, the court was
obviously concerned with the father's pro se status and
repeatedly addressed the father's time constraints in
setting a briefing schedule, as the following exchange from
the transcript reveals:
"THE COURT: Well, Mr. Lance, yes, it's
apparent to the Court that you have done
a tremendous amount of work here and I
will do everything I can to accommodate
your needs and your schedule. Do you
feel that I have given you enough time to
file your responsive brief on the
jurisdictional issue?
"MR. LANCE: Yes, there is no problem with
that at all."
The father then briefed the court extensively on the
jurisdictional issue, filing over 140 pages of discussion
and over forty exhibits with the District Court. We rule
that the father had ample notice and opportunity to be heard
to satisfy his rights under both the Fourteenth Amendment to
the United States Constitution, and section 40-7-105, MCA.
The father's second principal issue on appeal is
whether the District Court committed reversible error in
dismissing the father's petition for custody modifica.tion
for lack of subject matter jurisdiction. In its carefully
drafted memorandum order of February 14, 1984, the District
Court analyzed the jurisdictional. issue by reviewing the
requirements of section 40-4-211, MCA.
Section 40-4-211 is incorporated into the Montana
Uniform Child Custody Jurisdiction Act (MUCCJA) by section
40-7-104, MCA, and is the "premier jurisdictional hurdle
which must be overcome before a district court may modify a
child custody decree with interstate implications." In re
the Marriage of Bolton (Mont. 1984), P.2d I I

41 St.Rep. 1698, 1701. See also Wenz v. Schwartze (1979),
183 Mont. 166, 178, 598 P.2d 1086, 1093.
In pertinent part, section 40-4-211, MCA provides as
follows:
 " ( 1 ) R c o u r t of t h i s s t a t e competent t o
decide child custody matters has
jurisdiction to make a c h i l d c u s t o d y
d e t e r m i n a t i o n by i n i t i a l or modification
decree i f :

"(a) this state:
" ( i ) i s t h e home s t a t e o f t h e c h i l d a t
the time of commencement of the
proceedings; or
" ( i i ) had b e e n t h e c h i l d ' s home s t a t e
w i t h i n 6 m o n t h s b e f o r e commencement o f
t h e p r o c e e d i n g and t h e c h i l d i s a b s e n t
from t h i s s t a t e b e c a u s e o f h i s removal o r
r e t e n t i o n by a p e r s o n c l a i m i n g h i s
c u s t o d y o r f o r o t h e r r e a s o n and a p a r e n t
or person a c t i n g a s parent continues t o
live in t h i s state; or
"(b) i t i s i n t h e b e s t i n t e r e s t o f t h e
c h i l d t h a t a c o u r t o f t h i s s t a t e assume
j u r i s d i c t i o n because:

" ( i ) t h e c h i l d and h i s p a r e n t s o r t h e
c h i l d and a t l e a s t o n e c o n t e s t a n t h a v e a
s i g n i f i c a n t connection w i t h t h i s s t a t e ;
and

" ( i i ) t h e r e is a v a i l a b l e i n t h i s s t a t e
substantial evidence concerning the
child's present or future care,
protection, training, and personal
relationships; or

" ( c ) t h e c h i l d is p h y s i c a l l y p r e s e n t in
t h i s s t a t e and:
" ( i) h a s b e e n abandoned ; o r

" ( i i ) i t is n e c e s s a r y i n a n emergency t o
p r o t e c t him b e c a u s e h e h a s b e e n s u b j e c t e d
t o or threatened with mistreatment o r
abuse o r is n e g l e c t e d o r d e p e n d e n t ; o r
" ( d ) ( i ) no o t h e r s t a t e h a s j u r i s d i c t i o n
under p r e r e q u i s i t e s s u b s t a n t i a l l y i n
accordance with subsections (l)(a),
( l ) ( b ) , or ( l ) ( c ) or t h i s section or
another s t a t e has declined t o exercise
j u r i s d i c t i o n on t h e ground t h a t t h i s
s t a t e i s t h e more a p p r o p r i a t e forum t o
d e t e r m i n e c u s t o d y of t h e c h i l d ; and
" ( i i ) it is i n h i s b e s t i n t e r e s t t h a t t h e
c o u r t assume j u r i s d i c t i o n . "
A d i s t r i c t c o u r t must f i r s t d e t e r m i n e t h a t "one of the
four disjunctive r e q u i r e m e n t s of ,
s e c t i o n 40-4-211 [ l ] MCA,

be s a t i s f i e d " b e f o r e a s s u m i n g j u r i s d i c t i o n t o make a c u s t o d y

d e t e r m i n a t i o n by m o d i f i c a t i o n d e c r e e . Bolton, P.2d at

, 41 S t . R e p . a t 1700.

In the case a t bar, t h e D i s t r i c t C o u r t found t h a t it

could not take jurisdiction under section 40-4-211(1)(a)

because, according to uncontradicted evidence, when the

f a t h e r f i l e d h i s f i r s t p e t i t i o n f o r m o d i f i c a t i o n on F e b r u a r y

28, 1983, the children had lived in Wyoming with their

mother for over seven months. Thus, under the statute,

Wyoming was t h e c h i l d r e n ' s home s t a t e .

W agree with the D i s t r i c t Court's findings.
e Section

40-4-211(1)(a), MCA provides that jurisdiction exists if

N o n t a n a i s t h e c h i l d ' s home s t a t e when a c u s t o d y p r o c e e d i n g

is first initiated, or had been the child's home state

w i t h i n s i x months b e f o r e t h e c u s t o d y p r o c e e d i n g s commenced.

S e c t i o n 40-7-103, MCA, d e f i n e s "hone s t a t e " a s : " [ T l h e s t a t e

in which the child, immediately preceeding the time

involved, lived with his parents, a parent, or a person

a c t i n g a s p a r e n t , f o r a t l e a s t G c o n s e c u t i v e months. .. "
The r e c o r d i n d i c a t e s t h a t b o t h p a r t i e s a g r e e t h a t t h e

mother and two children moved from Montana to Wyoming

sometime i n l a t e J u n e o r e a r l y J u l y of 1983, a t l e a s t s e v e n

months before the father's f i r s t p e t i t i o n was filed. By

d e f i n i t i o n , Wyoming r a t h e r t h a n Montana, was t h e home s t a t e

of Brad and C h r i s t i n a L a n c e on t h e d a t e t h a t t h e i r father

f i l e d h i s f i r s t custody modification p e t i t i o n .

The f a t h e r , however, urges us to toll t h e s i x month

period used t o determine "home s t a t e " status i n t h i s case

because: (1) no n o t i c e was g i v e n t h e D i s t r i c t C o u r t b y t h e
m o t h e r o f h e r move t o Wyoming, as r e q u i r e d b y a n A u g u s t 2 7 ,

1981 order of the District Court; and (2) the f a t h e r was

incarcerated for most of the period from May 27, 1982,

t h r o u g h August 30, 1982, a n d was t h u s u n a b l e t o l o c a t e h i s

c h i l d r e n ' s new r e s i d e n c e .

'In P i e r c e v. Pierce (1982), 1 9 7 Mont. 16, 640 ~ . 2 d

899, we rejected the argument that the six month "home

state" p e r i o d should be t o l l e d where a non-custodial parent

v i o l a t e d a c u s t o d y d e c r e e by r e f u s i n g t o r e t u r n a c h i l d from

Montana t o t h e d e c r e e s t a t e of Kentucky:

"This Court is not persuaded by
respondent's contention t h a t during the
time a c h i l d is p r e s e n t i n a s t a t e as a
r e s u l t of acts i n v i o l a t i o n of an
existing custody decree, calculation of
t h e s i x month p e r i o d needed t o e s t a b l i s h
'home s t a t e ' j u r i s d i c t i o n should be
tolled. Cf. Freeman v. F r e e m a n (Ky.
1 9 7 7 ) , 5 4 7 S.W.2d 437. Neither the
language nor t h e l e g i s l a t i v e h i s t o r y of
t h e 'home s t a t e ' d e f i n i t i o n a l s u b s e c t i o n
support such a conclusion. See
C o m m i s s i o n e r ' s N o t e , 9 U . L . A . 1 2 3 (master
ed. 1979)." P i e r c e , 1 9 7 Mont. a t 2 8 ,
f . n . 2 , 640 P . 2 d a t 9 0 4 , f . n . 2 .

Under P i e r c e , it w o u l d h a v e b e e n e r r o n e o u s f o r t h e c o u r t i n

t h e i n s t a n t c a s e t o t o l l t h e s i x m o n t h "home s t a t e " p e r i o d ,

where the custodial parent removed the children from the

decree state. And w e w i l l n o t a p p l y t h e e q u i t a b l e r e m e d y o f

tolling the six month period required to establish

j u r i s d i c t i o n u n d e r t h e "home s t a t e " p r o v i s i o n m e r e l y beta-use

the father was -
p --- - k ?n c a r c e r a t e d a
i

H-
A -
S&4. c9-l&eFL &&*,/wcG. / < J b g/
.
The f a t h e r h a s n o t been p r e v e n t e d i n a n w a y b 4 f*
from bringing his cause of action (petition for custody

modification) a s a r e s u l t of h i s incarceration. But he must

e s t a b l i s h t h e s i x m o n t h "home s t a t e " p e r i o d w i t h o u t b e n e f i t

of tolling. To r u l e o t h e r w i s e w o u l d d e f e a t t h e l e g i s l a t i v e
p u r p o s e of MUCCJA. S e e s e c t i o n 40-7-102, MCA. W find that
e

the court correctly refused to assume jurisdiction under
s e c t i o n 4 0 - 4 - 2 1 1 ( 1 ) ( a ) , MCA.
The trial court also declined jurisdiction under

s e c t i o n 40-4-211(1)(b), MCA. Under that section, a court
may n o t t a k e j u r i s d i c t i o n u n l e s s i t f i n d s t h a t t h e c h i l d and
at least one c o n t e s t a n t m a i n t a i n a s i g n i f i c a n t connection
w i t h Montana, - t h a t t h e r e e x i s t s s u b s t a n t i a l e v i d e n c e i n
and

Montana of the c h i l d ' s present or future care, protection,
t r a i n i n g and p e r s o n a l r e l a t i o n s h i p s . Although g r a n t i n g t h a t

the father and arguably the two c h i l d r e n had significant
connections with Montana, the District Court found that

substantial evidence of Brad and Christina's present or
f u t u r e c a r e , e t c . d i d n o t e x i s t i n Montana.

The f a t h e r a r g u e s t h a t b e c a u s e t h e c h i l d r e n s p e n t m o s t
of their lives prior to June of 1982 in Montana, the

s u b s t a n t i a l e v i d e n c e r e q u i r e m e n t h a s been s a t i s f i e d . This
assertion ignores the plain meaning of section

4 0 - 4 - 2 1 1 ( 1 ) ( b ) ( i ) , which e x p l i c i t l y f o c u s e s on " p r e s e n t o r
future care, protection, training and personal
relationships. " (Emphasis provided. ) As of the date the

District Court signed its memorandum order, Brad and
Christina had lived i n Wyoming for at least a year and
one-half. D u r i n g t h i s t i m e t h e y a t t e n d e d s c h o o l i n Wyoming.

Their teachers reside i n Wyoming. They l i v e with their
m o t h e r and h e r new husband i n Wyoming, w h e r e he i s p r i n c i p a l
of a l o c a l high school. The t r i a l c o u r t found no e v i d e n c e
on the record to indicate that this situation will not
continue. We agree, and find that the court correctly
r e f u s e d t o assume j u r i s d i c t i o n u n d e r s e c t i o n 4 0 - 4 - 2 1 1 ( 1 ) ( b ) ,
MCA.

The c o u r t t h e n f o u n d t h a t i t l a c k e d j u r i s d i c t i o n u n d e r

s e c t i o n 40-4-211(1)(c), MCA, b a s e d on t h e u n c o n t e s t e d f a c t

t h a t n e i t h e r o f t h e two c h i l d r e n w e r e p h y s i c a l l y p r e s e n t i n

Montana, a s r e q u i r e d by t h e s t a t u t e . In addition, the court

found that the children had not been threatened with

mistreatment, neglect or abuse, a further requirement of

section 40-4-211(1)(c). The f a t h e r a p p a r e n t l y b e l i e v e s t h a t

s e c t i o n 40-4-211(1)(c) should apply a s a b a s i s for extending

jurisdiction because the children have allegedly been

subjected to mistreatment as a result of this long and

onerous litigation. We simply note that section

40-4-211(1)(c) r e q u i r e s t h a t t h e c h i l d o r c h i l d r e n must be

physically present i n Montana at the time i n order for a

Montana d i s t r i c t c o u r t t o assume j u r i s d i c t i o n . T h a t was n o t

the case here, and we a f f i r m t h e t r i a l c o u r t ' s conclusion

regarding s e c t i o n 40-4-211(1)(c).

Finally, the t r i a l court determined t h a t it could not

take jurisdiction under s e c t i o n 4 0 - 4 - 2 1 1 ( 1 ) ( d ) , t h e l a s t of

the alternative bases con£e r r i n g jurisdiction in child

custody matters. Under section 40-4-211(1)(d), MCA, a

Montana district court has jurisdiction upon a finding

e i t h e r t h a t no o t h e r s t a t e had j u r i s d i c t i o n u n d e r a s i m i l a r

statutory scheme, or that another state had declined to

exercise jurisdiction. Wyoming a d o p t e d t h e UCCJA i n 1973,

i n c l u d i n g Wyo. Stat. s e c t i o n 20-5-104, an i d e n t i c a l s t a t u t e

t o s e c t i o n 40-4-211, MCA. Wyoming had j u r i s d i c t i o n t o h e a r

this custody modification petition because, as discussed

a b o v e , Wyoming was t h e "home s t a t e " of Brad and C h r i s t i n a a t

t h e t i m e t h e f a t h e r ' s f i r s t p e t i t i o n was f i l e d . Wyo. Stat.
section 20-5-104(a). And there is no indication that

Wyoming " h a s d e c l i n e d t o e x e r c i s e j u r i s d i c t i o n on t h e g r o u n d

t h a t t h i s s t a t e [Montana] i s t h e more a p p r o p r i a t e forum t o

d e t e r m i n e c u s t o d y of t h e c h i l d . " Section 40-4-2ll(l)(d)(i),

MCA. To t h e c o n t r a r y , t h e f a t h e r s t a t e s t h a t t h e H o n o r a b l e

John D. Troughton, Third Judicial District, Evanston,

Wyoming, wrote a letter to the father on March 16, 1984,

declining jurisdiction over this case. We first observe

t h a t t h e l e t t e r was n e v e r ma.de a p a r t of t h e r e c o r d , either

at the September 22, 1983 hearing, or in the father's

voluminous briefs submitted to the District Court

thereafter. Nor do w e find in the record any indication

whatsoever t h a t any d i s t r i c t c o u r t o f t h e S t a t e o f Wyoming

has formally declined jurisdiction f o r any reason in this

matter. Finally, w e n o t e t h a t t h e r e were - l e t t e r s s e n t
two

t o t h e f a t h e r f r o m J u d g e T r o u g h t o n : o n e d a t e d March 1, 1 9 8 4 ,

and t h e o t h e r March 1 6 , 1 9 8 4 , b o t h o f which w e r e i n c l u d e d i n

the f a t h e r ' s b r i e f s t o t h i s Court. In order t o provide an

e x p l a n a t i o n f o r J u d g e T r o u g h t o n ' s d e c i s i o n , w e r e p r i n t below

t h e t e x t from b o t h l e t t e r s :

March 1, 1984

Dear Mr. Lance:

I am a D i s t r i c t J u d g e . The S t a t e of Wyoming p a y s t h e s o l e
c o m p e n s a t i o n I am t o r e c e i v e f o r b e i n g a J u d g e . I am n o t
a v a i l a b l e t o be h i r e d f o r a n y o t h e r p u r p o s e .

I am s h o c k e d a n d a s t o u n d e d b e y o n d my a b i l i t i e s o f
expression. I c a n n o t b e l i e v e you would s e n d a j u d g e money
f o r any r e a s o n . B e c a u s e you h a v e s e n t money t o m e , r a i s i n g
t h e a p p e a r a n c e of an a t t e m p t e d p a y o f f , you ha.ve l e f t m e no
alternative. Your p a c k a g e , l e t t e r and money h a v e b e e n
t u r n e d o v e r t o t h e U i n t a C o u n t y S h e r i f f and U i n t a C o u n t y
Prosecuting Attorney for whatever a c t i o n t h e y deem
appropriate.

Sincerely,
John D. Troughton
District Judge

March 16, 1984
Mr. Mark Harris
Attorney at Law
P.O. Box 23
Evanston, WY 82930
Mr. John Lance
Nighthawk Ranch, Box 403
Florence, MT 59833
Gentlemen :
This is to advise you that I will not sit on any case
involving controversies between John Pesler Lance and Dale
Lance Willavize, or her husband.
Sincerely,
John D. Troughton
District Judge

It is evident from reading the two letters in conjunction
that Judge Troughton removed himself from the case to avoid
any appearance of impropriety, rather than in deference to
Montana as a more appropriate state to assume jurisdiction.
The father has an available forum in Wyoming, and Wyoming is
the appropriate state to hear this custody modification
petition. We conclude that the District Court properly
declined to assume jurisdiction under section 40-4-211, MCA.
The father also asserts that the District Court erred

in failing to expeditiously set for hearing the father's
March 3, 1983 petition for modification. That petition was
addressed at the September 22, 1983 hearing, and was
dismissed in the court's order of February 14, 1984. Citing
section 40-4-216(1), "custody proceedings shall receive
priority in being set for hearing," the father maintains
that the court was dilatory in scheduling his petition for
hearing. Y e t a c l o s e examination o f t h e r e c o r d i n t h i s c a s e

i n d i c a t e s t h a t i f anyone h a s engaged i n d i l a t o r y t a c t i c s , i t

h a s been t h e f a t h e r . Between the time his f i r s t petition

was filed on March 3, 1983, and the hearing date on

September 2 2 , 1983, t h e f a t h e r inundated t h e D i s t r i c t Court

by filing documents such as "objections," "responses" and

" n o t i c e s " on an a l m o s t d a i l y b a s i s . W i t h i n t h a t p e r i o d he

f i l e d a t l e a s t t w e n t y m o t i o n s demanding w i d e l y v a r y i n g t y p e s

of j u d i c i a l a c t i o n , many o f which w e r e w h o l l y i m m a t e r i a l t o

the custody modification issue. Significantly, the father

f i l e d a m o t i o n t o remove t h e j u d g e who was i n j u r i s d i c t i o n

a t the time h i s p e t i t i o n was f i l e d . When t h a t m o t i o n was

s e t f o r h e a r i n g , t h e f a t h e r moved t o r e s e t t h e h e a r i n g f o r a
l a t e r d a t e on t h r e e s e p a r a t e o c c a s i o n s . The m o t h e r o p p o s e d

t h e s e e x t e n s i o n s , on t h e g r o u n d s t h a t t h e y w e r e d i l a t o r y and

were c a u s i n g h e r g r e a t expense i n r e t a i n i n g l o c a l c o u n s e l i n

Missoula, Montana. Following a h e a r i n g , t h e H o n o r a b l e Nat

A l l e n was removed from j u r i s d i c t i o n on J u n e 7 , 1 9 8 3 .

The H o n o r a b l e M i c h a e l Keedy, accepted j u r i s d i c t i o n on

June 8, 1983. A p p a r e n t l y t h e c o u r t t h e n s e t an a t t o r n e y ' s

c o n f e r e n c e f o r August 31, 1983, i n order to sort out the

p l e t h o r a of pending motions before t h e c o u r t a t t h a t t i m e .

The father moved for a continuance of this attorney's

c o n f e r e n c e , o n c e more a g a i n s t t h e m o t h e r ' s o p p o s i t i o n .

Any d e l a y i n c o n s i d e r a t i o n of the father's petition

f o r c u s t o d y m o d i f i c a t i o n h a s b e e n c a u s e d by h i s own a c t i o n s .

For t h i s r e a s o n , and t h o s e s t a t e d a b o v e , t h e judgment of t h e

D i s t r i c t Court is affirmed.
 IN THE SUPREME COURT OF THE STATE OF MONTANA
No. 84-223

IN RE THE MARRIAGE OF
DALE ELLYS LANCE,
Petitioner and Respondent,
and
JOHN FESLER LANCE,
Respondent and Appellant.
* * * * * * * * * * * *
IN RE THE CUSTODY OF BRADLEY
JOHN LANCE and CHRISTINA DALE LANCE DECC- jsb<

STATE: irf E!. A\ i '6

O R D E R

Petitioner filed a motion pro se to correct a previous
opinion issued in this matter, October 31, 1984. Petitioner
requests the deletion of all references to the fact that John
Fesler Lance was ". . . properly convicted and incarcerated
for a criminal act . . . "
IT IS ORDERED:
The following words contained in the above opinion be
struck: "properly convicted" and "for a criminal act." That
portion requested to be changed will now read: "was
incarcerated . . . " between May 27, 1982 and August 30,
1982.
DATED this 'L day of December, 1984.

%4&-W*
Chief Justice