No. 89-476
IN THE SUPREME COURT OF THE STATE OF MONTANA
1990
IN RE THE MARRIAGE OF JODY JO KLOSE,
Petitioner and Appellant,
-vs-
THOMAS CHARLES KLOSE ,
Respondent and Respondent.
APPEAL FROM: District Court of the Fourth Judicial District,
In and for the County of Missoula,
The Honorable Jack L. Green, Judge presiding.
COUNSEL OF RECORD:
For Appellant:
Thomas W. Trigg, Missoula, Montana
For Respondent:
David B. Cotner, Missoula, Montana
Submitted: March 29, 1990
Decided: June 7, 1990
Filed: - -=
Justice John C. Sheehy delivered the Opinion of the Court.
Jody Jo Klose appeals from the judgment of the District Court,
Fourth Judicial District, Missoula County, modifying the parties'
custody decree. We affirm the District Court.
The issues raised by appellant are:
1. Whether the District Court lacked subject matter
jurisdiction under the Uniform Child Custody Jurisdiction Act, 9
40-4-211, MCA.
2. Whether the District Court abused its discretion in
modifying the custody of Jerad Klose.
The parties were married in April, 1982, and Jerad was born
on July 31, 1982. A few months thereafter, Jody left Thomas to
live with another man in Nebraska. Jerad accompanied her on this
move. Dissatisfied with the relationship after three months, the
mother called father to retrieve her and Jerad. The couple
returned to Florence, Montana, where they attempted a
reconciliation.
In July, 1983, the mother filed a petition to dissolve the
marriage. Despite that, she continued to live with Thomas Klose.
In September 1983, without father's knowledge, the mother caused
a default decree to be entered, dissolving the parties1 marriage.
The decree awarded sole custody of Jerad to the mother. The mother
continued to reside with the father until March 1984, when she left
with the child to return to her Nebraska friend.
From that period to the time of trial, the mother moved
frequently, residing with many different individuals. The District
Courtls findings of fact document the mother's many moves:
Location Duration Roommate
Fargo, ND 12 months Tom Klose
Grand Island, NE 3 months Lee Ayers
Florence, MT 10 months Tom Klose
Grand Island, NE 1.5 months Lee Ayers
Standfield, OR 1.5 months Jim Tucker &
sister (married)
Hermiston, OR 1.5 months Parents
Standfield, OR 12 months Alone
Hermiston, OR 6 months Live-in house-
keeper for
Don Weber
Hermiston, OR 18 months Bob Harvey
Walla Walla, WA 2 months Marcus Morris &
sister
Yuma, Arizona 3 months Bob Harvey
(CA, NM)
Hermiston, OR 3 months Alone
Vistalia, CA 13 months Don Walton
Umatilla, OR (?
Hermiston, OR 6 months Bob Harvey
The mother did not give the father prior notice of these
moves, making his attempts to contact his son difficult.
In August 1987, the father filed a motion for modification of
custody. He testified at the hearing that he was concerned for his
son's welfare, and that he felt he could provide a more stable and
nurturing environment for Jerad. The father pointed to the
mother's constant relocation and Jeradls slow development as his
major concerns. A report of Jeradts development skills was
introduced at the hearing. The test was administered in October
of 1986 by a child development specialist. The results were as
follows:
a. Jerad scored above his age level in only one sub-
test, communication skills.
b. The sub-test measuring reasoning and academic skills
were one and one-half standard deviations below the mean.
c. In the personal social area, the sub-test for peer
interaction and social role were the lowest.
d. In the adaptive area, toileting skills were at the
mean, but those sub-tests measuring attention, eating,
dressing and personal responsibility were below the
average range, one and one-half to two plus standard
deviations below the mean.
e. In the motor skills area, Jerad's gross motor skills
such as locomotion were classified as a border line
skill. His fine muscle sub-test was scored at two plus
standard deviations below the mean.
f. Jerad was below the fiftieth percentile rank in each
sub-test and was in the first or second percentile (the
lowest) in the personal social total, adaptive total,
motor total, and fine motor total sub-test.
g. On the whole, Jerad was in the second percentile
according to the BDI and had an age equivalent of thirty-
nine (39) months, fourteen (14) months below his actual
age at the time of testing.
The father stated that his stable home environment would
benefit Jerad's development, while the mother's instability
endangers Jerad's mental and emotional health.
The District Court modified custody of Jerad, stating that
placing him in the primary custody of his father would be in
Jerad's best interests. The court placed Jerad with his father for
the 1989-1990 school year, with joint custody visitation rights to
the mother during portions of summer vacation and specific
holidays. The custodial placement is subject to the court's review
at the conclusion of the 1989-1990 school year. From this
decision, Jody Klose appeals.
The mother's first contention is that the District Court
lacked subject matter jurisdiction under the Uniform Child Custody
Jurisdiction Act. The mother filed a motion for change of venue
and a motion to dismiss, asserting that California was the proper
forum due to the child's and mother's residency there. The court
denied the motions, holding that jurisdiction was properly with the
court pursuant to 5 40-4-211, MCA. That statute reads in part:
(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 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:
(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 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.
In its denial of the mother's motions, the District Court
stated:
The mother and child moved t'oCalifornia less than three
months before the father filed his motion. They had not
previously lived in California. California is not the
child's ''home state. [Sections 40-4-211 (1)(a) and 40-
7-103 (5), M. C.A. ]
Before moving to California in June, 1987, the mother and
child had lived primarily in Oregon and one or both had
lived in Washington and Nevada for periods of one to
three months since November, 1986. The mother and child
have moved frequently and lived in four or more different
households in the last two years. The Court was not
presented evidence of any significant connection between
mother or child and the State of California. In view of
the evidence of the mother's frequent moves and lack of
proof that the mother intends to remain in California,
it cannot be said that the mother will remain in
California. Mere physical presence of the mother and
child in California, for a period of less than six months
before commencement of the proceedings, is not sufficient
to confer jurisdiction in California. [40-4-211(1) (a)
and ( 2 ) , M.C.A.]
The court, pursuant to 5 40-4-211(1) (d), concluded that it
would be in the best interests of the child to assert its
jurisdiction to make the child custody determination. The court
properly followed the guidelines of 5 40-4-211, MCA, and determined
that Montana was the appropriate forum. The court noted the
child's educational handicap and need for special care, and
determined that failing to exercise jurisdiction would only delay
the litigation and thereby the prompt attention the child needed,
should the father's allegations prove true.
At the time of the April 1989 hearing, mother and child no
longer resided in California, but had been in Oregon for six
months. The court s decision to reject subject matter jurisdiction
in favor of California was justified, given the mother's proclivity
to relocate, and the applicable law.
The mother argues that the court should have declined
jurisdiction, as Montana was an inconvenient forum under the
guidelines of 5 40-7-108, MCA. Specifically, the mother contends
that the court overlooked the likelihood that substantial evidence
concerning the child's ''present or future care, protection,
training, and personal relationships1' would be more readily
available in California. We disagree. Mother and child had only
recently moved to California. The only permanent home environment
for the child is the father's in this case. The mother testified
at final hearing that she intended to make her home in Oregon.
Given the stable location of the father in Montana, it was the best
arena for jurisdiction to be exercised.
The mother next contends that the District Court abused its
discretion in modifying the custody arrangement, and that the order
is not supported by the evidence. Findings of fact of the District
Court will not be set aside unless clearly erroneous. Rule 52(a),
M.R.Civ.P. There is substantial evidence in the record to support
the exhaustive findings of fact and conclusions of law contained
in the District Court order.
The court found that the mother's lifestyle and living
situation lacked stability. Following the dissolution, she moved
some 13 times, affording the child little opportunity for a stable
home environment. She has removed the child from school in the
middle of the year to move to Oregon. No evidence was introduced
that tended to show that the mother would provide a suitably stable
home environment for the child in the future.
The District Court noted that the child has a learning
disability which may be due in part to a lazy eye. The mother has
sought medical treatment for the child. However, her contention
that the father has not aided in the medical care lacks merit, as
the mother had custody of the boy at almost all times. The father
testified that he is willing and able to seek any additional
treatment for the child.
Mother's contention that granting the father custody will harm
the child by disrupting his home and school environment also lacks
merit. The child has moved numerous times throughout his life with
his mother. He was removed from his school in California in the
middle of the year to move to Oregon. At the time of trial, the
child was attending a christian school. The mother testified she
planned on enrolling the boy in public school the following year.
Therefore, the child's school environment would have been altered
regardless of modification of custody.
The District Court modified custody on the basis of facts that
arose subsequent to the prior decree, as authorized by 5 40-4-219,
MCA. The court noted the mother's lack of a stable lifestyle,
while noting that the father now resided permanently in Missoula
in a stable environment. Ample evidence was produced at the
hearing that it would be in the best interest of the child to place
him with the father. We conclude that the findings of the District
Court are sufficient to meet the criteria of 5 40-4-219, MCA, for
modification of custody.
Affirmed.
4.,422AA,
Justice
We Concur: