No. 92-155
IN THE SUPREME COURT OF THE STATE OF MONTANA
1993
IN RE THE MARRIAGE OF
PERRY WAYNE MILLER,
Petitioner and Respondent,
and
KATHY JO MILLER (BEAM),
Respondent and Appellant.
APPEAL FROM: District Court of the Seventeenth Judicial
District, In and f o r the County of Blaine,
The Honorable Leonard Langen, Judge presiding.
COUNSEL OF RECORD:
For Appellant:
Patrick F. Flaherty, Attorney at Law,
Great Falls, Montana
For Respondent:
Dan Falcon, Matteucci, Falcon, Squires &
Lester, Great Falls, Montana
Submitted on Briefs: June 17, 1993
Decided: ~ u l y
27, 1993
Filed:
Justice Terry N. Trieweiler delivered the opinion of the Court.
Appellant Kathy Jo Beam appeals from an order issued by the
District Court for the Seventeenth Judicial District, Blaine
County, in which the court modified the original custody decree and
awarded the parties joint custody of their minor child, Lori.
We vacate the order of the ~istrictCourt on the basis that
the court lacked subject matter jurisdiction to modify the original
custody decree, and remand to the court for dismissal of this
action.
The following issue, raised sua sponte by this Court, is the only
issue we find necessary to review:
Did the District Court have jurisdiction under Montana's
Uniform Child Custody Jurisdiction Act to hear and determine the
motion for modification?
Kathy and Perry Miller were married in October 1980, A son,
Joshua, was born in 1981, and a daughter, Lenore (Lori), whose
custody is in dispute in this case, was born in June 1982. The
marriage broke down, and in August 1982 Kathy and the children
moved to her parent's home in Johnstown, Pennsylvania.
On May 13, 1983, the parties' marriage was dissolved by the
Blaine County District Court. The decree provided that the issues
of custody and property distribution would be determined at a later
date. After the dissolution, Joshua remained in Montana with
Perry, and Lori returned to Pennsylvania with Kathy. Lori has
lived in Pennsylvania ever since that time.
In 1985, the court entered its findings of fact, conclusions
of law, and decree with respect to custody, child support, and
distribution of property. Kathy was awarded custody of Lori and
Perry was awarded custody of Joshua. This decision was based on
the court's findings that neither child had lived with the
noncustodial parent since they were infants and that they were each
happy and integrated with their respective families.
During the summer of 1990, when Lori was visiting in Montana,
Perry petitioned for custody of Lori and obtained a temporary
restraining order to keep her from returning to Pennsylvania.
These actions were precipitated by Lori's statements that Kathy's
live-in boyfriend was abusive to Kathy. Prior to the commencement
of Perry's action for modification, Lori had lived in Pennsylvania
for approximately eight years, attended school there, and had only
visited Perry in Montana for one month in 1988, and two months in
1989.
Hearings were conducted in the Montana court during February
1991. As a result of those hearings, the District Court found that
neither Lori nor Kathy were endangered by a live-in boyfriend at
that time. The court, therefore, lifted the temporary restraining
order. However, the original decree was modified to provide for
joint custody of Lori. The court's modification was based on a
stipulation which the parties entered into during the hearing.
Kathy sought reconsideration, but her motion was denied and
judgment was entered on March 18, 1992. From this judgment, Kathy
appeals.
Kathy contends that the court coerced her into entering into
the agreement and that it abused its discretion when it modified
the 1985 custody decree because the statutory requirements for
modification of custody were not satisfied. However, the
dispositive issue, which we raise suasponte, is whether the District
Court had subject matter jurisdiction to hear and determine Perry's
motion for modification.
It is well established that the issue of subject matter
jurisdiction may be raised at any stage of a judicial proceeding by
a party or sua sponte by the court. OgDonnelI v. Ryans, Znc. (1987), 227
Mont. 48, 49, 736 P.2d 965, 966. Seeako,Statev.Davis (1984), 210
Mont. 28, 30, 681 P . Z ~42, 43; Statev.Akm (1938), 106 Mont. 43, 57,
74 P.2d 1138, 1145; Oppenheirnerv. Regan (1905), 32 Mont. 110, 115, 79
P. 695, 696. Once the issue is raised and it is determined that a
court lacks subject matter jurisdiction, the only further action
the court can take is to dismiss the case. Rule 12(h) (3),
M.R.Civ.P.; ZnreMam'ageofLance (1984), 213 Mont. 182, 186-87, 690
P.2d 979, 981.
It is also a settled rule that subject matter jurisdiction
cannot be waived nor conferred by consent of a party where there is
no basis for jurisdiction under the law. OIDonneII, 736 P.2d at
966 (citing Statev. Davis, 681 P.2d at 43). Thus, in this instance,
Kathy's appearance and participation in the proceedings cannot be
construed as an acquiescence in, nor conferral of, subject matter
jurisdiction.
All child custody determinations, including initial and
modification decrees, are governed by the provisions of Montana's
Uniform Child Custody Jurisdiction Act (UCCJA), found at
40-7-101 through -125, MCA. The stated purpose of the UCCJA is
[Alssure 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.
Section 40-7-102(1)(c), MCA.
Section 40-4-211, MCA, is incorporated into the UCCJA by
§ 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 Mam'age of Bolton (1984),
212 Mont. 212, 218, 690 P.2d 401, 404. This Court has made clear
that the jurisdictional requirements of 5 40-4-211, MCA, must be
met before a court, which entered an initial custody decree, can
exercise continuing subject matter jurisdiction to modify that
decree. InreMamageofAlpert (Mont. 1993), 852 P.2d 669, 670-71, 50
St. Rep. 564, 565; Bolton, 690 P.2d at 404. Section 40-4-211, MCA,
provides in pertinent part 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 ... or
(b) it is in the best interest of the child that a
court of this state assume jurisdiction because:
(i) 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
(d) (i) no other state has jurisdiction under
prerequisites substantially in accordance with ...
this
section or another state has declined to exercise
jurisdiction ... and
(ii) it is in his best interest that the court
assume jurisdiction.
The record in this case reveals that prior to the commencement
of this proceeding Lori lived in Pennsylvania for approximately
eight years and only visited Montana during brief periods between
1988 and 1990. Thus, by definition, Montana is not ~ori'shome
state and the court had no jurisdiction under § 4 0 - 4 - 2 1 1 (1)(a),
MCA .
Next, the record demonstrates that Lori's most significant
connections are with Pennsylvania, and that is where relevant
evidence concerning such things as her medical care, training,
personal relationships, and protection is available. Her contacts
with Montana at the commencement of the action were minimal, and
relevant evidence is virtually non-existent in this State.
Therefore, there is no jurisdictional basis under 5 40-4-211(1) (b),
MCA .
Third, we note that Pennsylvania, which has been Lori1shome
state since 1982, has adopted the Uniform Child Custody
Jurisdiction Act in nearly identical form as Montana. 23 Pa.C.S.A.
§§ 5341 through 5366. Because it is both Lori's home state and the
state with which she has the most significant connections,
Pennsylvania, under its version of the UCCJA, has subject matter
jurisdiction to determine custody issues with respect to Lori.
Since there is no evidence in the record to suggest that
Pennsylvania has declined to exercise its jurisdiction in this
instance, § 40-4-211(1) (d), MCA, does not confer jurisdiction on a
Montana court.
Finally, the remaining alternative basis for jurisdiction set
forth in 5 40-4-2ll(l) (c), MCA, applies only in cases of
abandonment, neglect, or extreme emergency. This Court made clear
in Wenz v Schwartze (l979), 183 Mont. 166, 179, 598 P.2d 1086, 1094,
.
that, consistent with the Commissioners1 Notes to the Uniform Child
Custody Jurisdiction Act, application of this section requires
caution and "is to be used only in 'extraordinary circumstances.'"
See also, Application of Lang (1959), 193 N .Y. S. 2d 763.
The facts of this case do not constitute an extraordinary or
emergency situation. Although the modification petition was
initiated due to the belief that Kathy was living in an abusive
situation and that Lori had been threatened by the same individual,
there was no evidence that Lori was in immediate danger. Moreover,
by the time of the hearing in 1991, the court found that the
situation with Kathy's boyfriend had been wcured" and that it was
reasonable to award split physical custody. Thus, the court's own
findings negated any argument that there was an emergency situation
or necessity to immediately remove Lori from Kathy's custody.
Therefore, the section of the UCCJA which confers custody in
emergency situations is not applicable here.
After carefully considering the record in this case, we
conclude that none of the disjunctive requirements set forth in
g 40-4-211, MCA, are satisfied. We hold that the Montana District
Court lacked subject matter jurisdiction to intervene in this
matter.
Accordingly, the judgment of the District Court is vacated,
and pursuant to Rule 12(h)(3), M.R.Civ.P., we remand to the court
for dismissal of this action.
We concur:
L-
Justice J a m e s C. Nelson d i d n o t p a r t i c i p a t e .
July 27, 1993
CERTIFICATE OF SERVICE
I hereby certify that the following order was sent by United States mail, prepaid, to the following
named:
Patrick F. Flaherty
Attorney at Law
625 Central Ave. W., #I01
Great Falls, MT 59404
Daniel Falcon
MATTEUCCI, FALCON, SQUIRES & LESTER
P.O. Box 149
Great Falls, MT 59403
ED SMITH
CLERK OF THE SUPREME COURT
S T A T O F MONTANA
BY
Depu