No. 83-491
IN THE SUPREME COURT OF THC STATE OF MONTANA
1984
IN RE THE P.IARRIAGE OF
MICHAEL T. CONNOLLY,
Petitioner and Respondent,
-vs-
JUDY RAE CONNOLLY,
Respondent and Appellant.
APPEAL FROM: District Court of the First Judicial District,
In and for the County of Lewis & Clark,
The Honorable Henry Loble, Judge presiding.
COUNSEL OF RECORD:
For Appellant:
John L. Hollow, Helena, Montana
For Respondent :
Jeffrey M. Sherlock; Hull & Sherlock, Helena,
Montana
-.- ---- --
Submitted on Briefs: January 19, 1984
Decided: April 19, 1984
Filed:
l,iJ 1 3 t984
%(
Clerk
Mr. Justice John C. Sheehy delivered the Opinion of the
Court.
Judy Rae Connolly appeals from an order of the District
Court, First Judicial District, Lewis and Clark County,
modifying the parties' dissolution decree and awarding
Michael T. Connolly custody of the parties' four minor
children.
On November 5, 1-980, the District Court issued a decree
of dissolution dissolving the marriage of Judy Rae Connolly
and Michael T. Connolly. The decree of dissolution
incorporated a property settlement agreement which contained
provisions relating to the support and custody of the
parties' four minor children. The parties agreed to a joint
custody arrangement, with Judy Connolly retaining custody of
the two younger children and Michael Connolly retaining
custody of the two older children. It was also agreed that
the noncustodial parent have reasonable visitation riqhts as
to the children not in his or her custody. After entry of
the decree, Judy Connolly returned to Gillette, Wyoming, with
the two younger children and Michael Connolly remained in
Helena, Montana, with the two older children.
On January 5, 1983, Michael Connolly filed a petition in
the District Court requesting modification of the custody
arrangements. Based on certain circumstances which he
alleged seriously endangered the two younger children's
physical, mental, moral or emotional health, Michael Connolly
requested that he be awarded sole custody of the two younger
children. The District Court then ordered the Lewis and
Cl-ark County Welfare Department to conduct an investigation
into the custodial suitability of the parties. The District
Court also requested that the Sixth District Court of the
State of Wyoming conduct a hearing in Gillette, Wyoming, to
gather evidence as to the propriety of the petition for
rnodification of custody. The transcript of the hearing was
forwarded to Montana and subseqently adopted as part of the
record in this case.
The District Court heard final argument in this matter
.
on three separate days in July and August of 1983. An
opinion and order was issued on September 15, 1983, wherein
the court ordered the decree of dissolution modified with
respect to the custody arrangements and awarded Michael
Connolly so1.e custody of the parties' four minor children.
Judy Connolly filed a notice of appeal on September 22, 1983,
from the order and opinion awarding Michael Connolly custody
of the children. On December 2, 1983, she filed a notice of
appeal from a March 10, 1983 order and opinion denying a
motion to dismiss the cause for lack of iurisdiction.
The following issues are before this Court on appeal:
1. Whether the District Court had jurisdiction to
modify the original custody award.
2. Whether there is substantial evidence to support the
District Court's conclusion that a modification of custody
would be in the best interest of the two younger children.
3. Whether the testimony of a Helena social worker was
properly admitted into evidence.
The Uniform Chil-d Custody Jurisdiction Act wa.s adopted
by the Montana legislature in 1977. Under the Act, and
section 40-4-211, MCA, certain requirements must he met
before a court has jurisdiction to make a determination in
child custody matters. These requirements are set forth as
follows :
" (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
"(b) 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 ava.ilable in this state substa.ntia1
evidence concerning the child's present or future
care, protection, training, and 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
dependen.t or
;
"(d) (i) no other state has jurisdiction under
perequisites substantially j n accordance with
.
subsections (1) (a), ( 1 ) (b), or (1)(c) of this
section or another state has decl-ined to exercise
jurisdiction on the ground that this state is the
more appropriate forum to determine custody of the
child; and
"(ii) it is in his best int.erest that the court
assume jurisdiction."
Each requirement sets forth an alternative basis for a
court to assert jurisdiction. In the Commissioners' Note to
section 40-7-104, MCA, it is stated th-at:
"Paragraphs (1) and (2) of subsection (a)
[40-4-211(1) (a)(i) and (ii)] establish the two
major bases for jurisdiction. In the first place,
a court in the child's home state has jurisdiction,
and secondly, if there is no home state or the
child and his family have equal or stronger ties
with another state, a court in that state has
jurisdiction ...
"Paraqraph (3) of subsection (a) C40-4-211(1.) (c)1
- - . .
retains and affirms parens patriae jurisdiction,
usually exercised by a juvenile court, which a
state must assume when a child is in a situation
requiring immediate protection
extraordinary jurisdiction is
. . .
reserved
This
for
extraordinary circumstances ...
"Pa-ragraph (4) of subsection (a) [40-4-211(1)(d)1
provides a final basis for jurisdiction which is
subsidiary in nature. It is to be resorted to only
if no other state could, or would, assume
jurisdiction under the other criteria of this
section. "
The District Court in this case relied on section
40-4-211(1) (b), MCA, as its basis for jurisdiction. Under
section 40-4-211(1) (b), the court is required to find first,
that the child and his parents or the child and at least one
contestant have a significant connection with this state, and
second, that there is available in this state substantial
evidence concerning the child's present or future care,
protection, training, and personal relationships.
The District Court found that because Michael Connolly
lives and works in Helena he has a. "significant connection"
with this forum. The District Court further found that the
presence of Michael Connolly and the two older children in
Helena provides a significant connection with this forum for
the two younger children.
In reaching its conclusion that the above-cited facts
are sufficient to establish the necessary "significant
connections," the District Court relied on the case of Reeve
v. Reeve (Fl. 1980), 391 So.2d 789.
In Reeve, a mother sought modification of a dissolution
decree awarding custody of the minor daughter to the father.
The father a.nd the child were then living in New Jersey and
the mother was living in Florida. The court applied the
jurisdictional requirements of the Uniform Child Custody
Jurisdiction Act and found that:
"Section 61.1308(1) (b) does not require that a
child's only significant connection be with the
State of Florida in order for jurisdiction of the
Florida court to attach. [Citation omitted.]
Although the child has resided in New Jersey since
July, 1975, the wife has apparently resided in
Florida since the dissol.ution and has not lost
contact with the child, having visited with her in
October, 1976, December, 1978, and the summer of
1979. Under these circumstances, the child and. one
contestant, the wife, have a significant connection
with this state." 391 So.2d at 791.
The District Court further relied on Reeve to find that
substantial evidence existed in Montana as to the children's
care, protection, training, and personal relationships. The
court in Reeve held that:
"As to the second part of the test, for purposes of
determining subject matter jurisdiction under
Section 61.1308, it is not the relative wealth of
evidence available in either state that is at
issue, rather, whether there exists in this state
substantial evidence regarding the child's present
or future care, protection, training, and personal
relationships. While the bulk of evidence
regarding the child's present care, letc.,] may now
exist in New Jersey, there nevertheless exists in
Florida. substantial evidence regarding her future
care, [etc.,1 since the wife, who is seeking
permanent custody resides in this state." 391
So.2d at 791.
The District Court found the situation in Reeve
analogous to the case at hand and determined that because
Michael Connolly has established a home in Montana,
substantial evidence as to the children's future care,
protection, training, and personal relationships is available
in this state.
Judy Connolly, however, contends that the result reached
by the District Court cannot be reconciled with the decision
in Strouf v. Strouf (1978), 176 Mont. 406, 578 P.2d 746. In
Strouf, the Court held that the District Court lacked
jurisdiction to modify the custody agreement previously
agreed to by the parties. The Court found that the
requirements of subsections (1)(a), (c), and (d) were not
applicable, and that jurisdiction could not be based on
(1)(b) because under subsection (2) the physical presence in
this state of the child or the child and one of the
contestants is not alone sufficient to confer jurisdiction on
a court of this state to make a child custody determination.
Such is not the case here. The ties that bind the two
younger children to Wyoming are no stronger than the ties
which bind them to Montana. Although Judy Connolly and the
two younger child.ren live in Wyoming, the nztural father of
the children and their two older siblings live in Montana..
There is also substantial evidence available in Montana to
resolve the issues arising as to the children's future care,
protection, training, and personal relationships. In making
a custody determination, the court must examine both the
children's present environment and their future environment.
Therefore substantial evidence of either the children's
present - future care, protection, training, and personal
or
relationships may be the basis for asserting jurisdiction
under subsection (1)(b)(ii) . Allen v. Allen (Hawaii 1.981),
634 P.2d 609, 612; Reeve v. Reeve (Fl. 1980), 391 So.2d 789,
791; Nelson v. District Court (Colo. 1974), 527 P.2d 811,
814. Bodenheimer, The Uniform Child Custody Jurisdiction
Act,
- 22 Vand.L.Rev. 1207, 1227 (1969).
Having thus determined that the District Court had
jurisdiction to consid.er the petition for modification, we
must now look to whether there is substantial evidence to
support the court's findings and conclusions that a change in
custody is in the best interest of the two vounger children.
The District Court based it authority to award custody of the
two younger children to Michael Connolly on section
40-4-219 (1)(c), MCA. Section 40-4-219 (1)(c) provides that:
"(I.) The court may in its discretion modify a prior
custody decree if it finds, upon the basis of facts
that have arisen since the prior decree .. .
that
a change has occurred in the circumstances of the
child or his custodian and that the modification is
necessary to serve the best interest of the child
and if it further finds that:
" (c) the child ' s present environment endangers
seriously his physical, mental, moral, or emotional
health and the harm likely to be caused by a change
of environment is outweighed by its advantages to
him. . ."
What is, or wha.t is not in the best interest of the
child depends upon. the facts and circumstances of each case.
The responsibility of the District Court is to sift through
these contradictory facts and make an equitable custody
decision. Because the court has the opportunity to observe
the demeanor of the witnesses on the stand, j t stands in a
.
better position to draw the fine lines inherent in custody
matters. Therefore, its decision will not he disturbed
absent a clear showing that the court abused its discretion
in making the custody decision. Brooks v. rooks (1976), 171
Mont. 132, 1.34, 556 P.2d 901, 902; In re the Adoption of
Piery (1974), 164 Mont. 353, 356-57, 522 P.2d 1377.
The District Court found. that Judy Connolly left the two
younger children, ages 6 and 5, alone and unattended on.
numerous occasions when she "couldn't find a babysitter."
Durinq the time that the two older children were visiting,
she left a.11 four children alone, with the oldest child, age
10, in charge of the others. The court found that Judy
Connolly does not show any remorse for leaving the children
unattended and does not feel that to do so is dangerous to
the children. This js contrary to the testimony of a number
of expert and lay witnesses, who testified that the practice
of leaving young children of their age alone is highly
dangerous.
The District Court also found that Judy Connolly has an
intimate, sexual relationship with a married man who spends
the night with her up to five times a week. When he is not
with Judy, he stays with his wife and children at their
residence in Gillette. There was also indication in the
testimony that this man uses obscene and abusive language in
the presence of the children.
One of the expert witnesses at trial further testified
that it would be in the best interest of the children if they
were allowed to grow up together.
From these findings, the District Court concluded that
the children's present environment serious1.y endangers their
physical, mental, moral, and emotional health and that the
harm likely to be caused by a change of environment is
outweighed by its advantages to them. We agree. Michael
Connolly has remarried and can provide a safe and stabl-e home
environment for the children. It appears that Judy Connolly
cannot.
Judy Connolly contends, however, that the District
Court's conclusion that a change in custody is in the best
interest of the children must be reversed because the
District Court admitted into evidence prejudicial material
and testimony. Judy Connolly objects to the admission of the
report and testimony of a Helena social worker, who, after
commenting on both the Montana environment and the FJ~oming
environment, recommended that sole custody of the children be
awarded to Michael Connolly.
Although the socia.1 worker's observations as to the
Wyoming environment were largely based on information
received from Michael Connolly and may therefore not have
been based on information of a type reasonably relied on by
those in his field as required under Rule 703, M.R.Evid.,
there is no evidence that the District Court relied upon the
social worker's observations and comments on the Wyoming
environment in making his decision as to custody. The
findings of the court as to the Wyoming environment are
supported by other evidence in the record. and could easily
have been based on such evidence. The objection is also
inapplicable to the social worker's observations as to the
Montana environment as these observations are based. on
reliable and reasonable information. It is well-settled in
Montana that, in a civil case, such as the one here, which is
tried before the court without a jury, there is a presumption
that the trial court has disregarded all inadmissible
evidence in reaching its decision. In the Matter of Moyer
(1977), 173 Mont. 208, 211, 567 P.2d 47; O'Sullivan v.
Simpson (1949), 123 Mont. 314, 212 P.2d 435. This
presumption has not been overcome.
The decision of the District Court awarding sole custody
of the parties' four minor children to Michael Connolly is
affirmed.
We Concur: