No. 8 8 - 2 6 2
IN THE SUPREME COURT OF THE STATE OF MONTANA
1988
IN RE THE MARRIAGE OF
JAN M. HARPER (DEGRAFF),
Petitioner and Appellant,
and
WILLIAM B. HARPER,
Respondent and Respondent.
APPEAL FROM: District Court of the Eighth Judicial District,
In and for the County of Cascade,
The Honorable John McCarvel, Judge presiding.
COUNSEL OF RECORD:
For Appellant:
Marcia Birkenbuel, Great Falls, Montana
S r-
:
a [-
L
.. 1
Joan E. Cook, Great Falls, Montana
LLI
Submitted on Briefs: Sept. 23, 1 9 8 8
Decided: December 1, 1 9 8 8
Filed:
Clerk
Mr. Justice R. C. Mcnonough delivered the Opinion of the
Court.
This appeal involves disputed child visitation rights
under a dissolution decree. Jan M. Degraff, f .k.a. Jan M.
Harper (Jan), appeals from an order of the District Court of
the Eighth Judicial District, Cascade County. The District
Court ordered: (1) Jan must keep her former husband William
B. Harper (William) informed of the current address and
telephone number for herself and the couple's minor child;
(2) Jan must allow William unrestricted telephone access to
the child and reasonable visitation consistent with the
original dissolution decree in this case; and ( 3 ) should Jan
continue her attempt to prevent William from speaking with,
visiting or knowing the whereabouts of the child, William
will be relieved of his obligation to pay child support. We
reverse and remand.
Jan presents three issues for review:
1. Did the Montana District Court have inrisdiction to
make a determination regarding visitation with the parties'
minor child?
2. Did the District Court err in conditioning William's
obligation to pay child support upon Jan's compliance with
the court's visitation order?
3. Did the District Court err in refusing to consider
Jan's request for an increase in child support and for an
order directing payment of the child's medical and drug
expenses?
In 1979, Jan obtained a decree dissolving her marriage
to William. At the time, she was living in Great Falls with
William and their minor child, William B. Harper 11. Custody
of the child was awarded to Jan. William was granted
"reasonable" visitation rights specified in the decree, and
ordered to pay child support of $125 per month. Jan
subsequently remarried, and in 1981 she moved with the child
and her new husband to New York. She testified before the
District Court in the present action that she informed
William in advance of her intent to move to New York.
William testified that he was not given an address or
telephone number when Jan left.
Jan and the child left New York in 1983 and moved to
Colorado, where they still reside. She did not advise
William of this move because, according to Jan, she did not
know where he was. William also moved after the dissolution,
living in Washington and Idaho before returning to Great
Falls, where he is currently a resident. William maintains
he has been denied visitation since 1981, although he has
tried to locate Jan and the child several times. Jan admits
she refused a visitation request from William while living in
New York in 1982, because she wanted to take the child to a
funeral being held out of the state.
On March 5, 1988, William was served with process in an
action brought by Jan under the Uniform Reciprocal
Enforcement of Support Act (URESA) seeking past due child
support pavments. Having thus discovered where Jan was
living, Wil-liam then moved the District Court for an order
directing Jan to appear and show cause why she should not he
held in contempt for failing to allow visitation under the
original decree. The order was issued on March 10, 1988.
A hearing was held on March 22, 1988, at which Jan made
a "special appearance" challenging the court's iurisdiction
to determine the visitation issue. She also sought two court
orders: one to require William to pay her attorney's fees and
costs, and a second to modify child support. The court
refused to hear testimony on Jan's request for modification
of support. The order directinq Jan to allow visitation or
lose child support was issued on March 24, 1988. This appeal
followed.
Flilliam raises a threshold question in his brief. He
argues that Jan is attempting to appeal a contempt order,
which is not allowed. Section 3-1-523, MCA, states contempt
orders are final and conclusive, and may not be appealed.
Review may he had only on a writ of certiorari by this Court.
F e have held this statute applicab1.e in dissolution cases.
J
In re Marriage of O'Neill (1979), 184 Mont. 415, 603 P.2d
Jan was not held in contempt by the District Court. The
court's order directed her to honor the visitation terms of
the original decree in this case, but did not find her in
contempt of court or impose a contempt penalty. The order is
appealable to this Court.
Jan argues that under the provisions of the Uniform
Child Custody Jurisdiction Act (UCCJA) as adopted Z n Montana,
the District Court was without jurisdiction to render its
order. Montana's version of the UCCJA is found at S5
40-7-101, et seq., MCA. Section 40-7-102, MCA, lists the
general purposes of the UCCJA, including:
...
(c) assure that litigation concerning the custody
of a child takes place ordinarily in the state with
which the child and his family have the closest
connection and where significant evidence
concerning his care, protection, training, and
personal relationships is most readily available
and that courts of this state decline the exercise
of jurisdiction when the child and his family have
a closer connection with another state;
Under 5 40-7-103, MCA, visitation rights are included in the
definition of matters encompassed by a custody proceeding.
The specific section cited in support of Jan's argument
is 5 40-7-104, MCA. That section is entitled "Jurisdiction,"
and incorporates 5 40-4-211, MCA, to set forth the
jurisdictional requirements under the UCCJA:
(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
(h) 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, and personal
relationships; or
(c) the child is physically present in this
state and:
( F ) has been abandoned; or
(ii) it is necessary in an emergency to
protect him because he has been subiected to or
threatened with mistreatment or abuse or is
neglected or dependent; or
(d)(i) no other state has jurisdiction under
prerequisites substantially in accordance with
subsections (1)(a), (1)(b), or (1)(c) of this
section or another state has declined 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 interest that the court
assume jurisdiction.
(2) Except under subsections (1)(c) and
(1)(d) of this section, physical presence in this
state of the child or of 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.
(3) Physical presence of the child, while
desirable, is not a prerequisite for jurisdiction
to determine his custody.
(4) A child custody proceeding is commenced
in the district court:
(a) by a parent, by filing a petition:
(i) for dissolution or legal separation; or
(il) for custody of the child in the county in
which he is permanently resident or found; . . .
At the hearing held pursuant to the show cause order, the
District Court held these requirements did not apply to this
action. The court relied instead on its continuing
jurisdiction to enforce the original decree.
We addressed the question of continuing jurisdiction in
relation to the UCCJA in In re Marriage of Bolton (Mont.
1984), 690 P.2d 401, 41 St.Rep. 1698. While Solton involved
a modification of custody, the distinction between
modification and enforcement of custody in a case such as
this is superficial. Preserving such a distinction would
defeat the purposes set out in 5 40-7-102, MCA.
In Bolton, we applied a two-part test for the exercise
of jurisdiction. The first step requires that the
jurisdictional requirements set out above be met before a
court can assert continuing jurisdiction in a custody
proceeding. If the requirements are met, the second step
requires that the court determine whether it should exercise
its jurisdiction using the criteria found at 5 40-7-108, MCA.
This determination is within the court's discretion. Bolton,
690 P.2d at 405.
We hold the District Court was incorrect in concluding
that the UCCJA jurisdictional requirements did not apply to
this case. Section 40-7-107, MCA, states the UCCJA was
enacted in Montana to deal with custody proceedings involving
residents of different states. Under 40-7-103, MCA,
custody proceedings settle questions of visitation rights.
Jan and the child reside in Colorado, William resides j.n
Montana and the subject of this action is William's right of
visitation.
We remand for a determination of jurisdiction under the
test applied in Rolton. If on remand the court determines it
has jurisdiction and decides to exercise that jurisdiction,
we feel compelled to note two factors that should be
considered in the court's decision on the merits.
First, we note the final sentence of 5 40-5-124, MCA:
The determination or enforcement of a duty of
support owed to one obligee is unaffected by any
interference by another obligee with rights of
custody or visitation granted by the court.
Conditioning the obligation to pay child support upon
non-interference with visitation rights would he error under
this statute. Second, once the court asserts continuing
jurisdiction, it can hear argument on the question of child
support. Continuing jurisdiction applies to child support as
well as custody. In re Marriage of Ensign (Mont. 1987), 739
P.2d 479, 44 St.Rep. 1146.
Furthermore, the court can still address the child
support issue if it determines it does not have jurisdiction
to hear the visitation issue. Modification of child support
is not subject to the jurisdictional strictures imposed on
custody proceedings under the UCCJA. Child support
provisions in a dissolution decree can be modified under 5
40-4-208, MCA. Jan's motion in response to the show cause
order effectively petitions for an increase in child support.
Because William resides in Montana, the court has in personam
jurisdiction over him and can increase his obligation of
child support if it so decides. See In re Marriage of
Appleton (Mont. 1988), - P.2d - 45 St.Rep. 1959.
,
Reversed and remanded.
Justices