No. 95-383
IN THE SUPREME COURT OF THE STATE OF MONTANA
1996
IN RE THE MARRIAGE OF
YANCY W. SHUPE,
Petitioner and Appellant,
and
PAMELA J. SHUPE,
Respondent and Respondent.
APPEAL FROM: District Court of the Thirteenth Judicial District,
In and for the County of Stillwater,
The Honorable Russell C. Fagg, Judge presiding.
COUNSEL OF RECORD:
For Appellant:
Robert Eddleman, Attorney at Law, Columbus,
Montana
For Respondent:
Jill Deann Miller, Attorney at Law, Billings,
Montana
Submitted on Briefs: January 18, 1996
Decided: May 10, 1996
Filed:
Justice Karla M. Gray delivered the Opinion of the Court.
Yancy W. Shupe (Yancy) appeals from the Findings of Fact,
Conclusions of Law and Order of the Thirteenth Judicial District
Court, Stillwater County, denying his petition for modification of
custody. The court based the denial on its conclusions that it did
not have subject matter jurisdiction to modify custody under the
Parental Kidnapping Prevention Act, 28 U.S.C. 5 1738A, and that
Yancy failed to satisfy the statutory requirements for
modification. We affirm.
The dispositive issues on appeal are:
1. Is Yancy's appeal properly before us?
2. Did the District Court err in concluding that it did not
have subject matter jurisdiction to modify custody under the
Parental Kidnapping Prevention Act?
Yancy and Pamela Shupe (Pamela) are the parents of a minor
child, Megan Shupe (Megan). Before the events at issue in this
case, the family resided in Utah. In October of 1993, Yancy moved
to Nye, Montana, to work at the Stillwater Mine; Pamela and Megan
remained in Utah. Yancy and Pamela's marriage was dissolved by a
Utah district court on January 12, 1994. In the decree of
dissolution, the court granted Pamela sole custody of Megan and
awarded Yancy liberal visitation rights.
Pamela and Megan remained in Utah immediately following the
dissolution of the parties' marriage. The record reflects that,
between April of 1994 and January of 1995, Pamela and Megan went
back and forth between Montana and Utah on numerous occasions.
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Yancy moved some of Pamela's belongings to Montana in July of 1994.
The parties agree that Pamela and Megan lived with Yancy in Montana
from January of 1995 until sometime in March of that year.
On March 9, 1995, Pamela and Megan were involved in a single-
car accident while returning to Nye from Dean, Montana; neither
Pamela nor Megan was injured. Pamela was cited for driving under
the influence of alcohol (DUI) and pleaded not guilty. Pamela and
Megan returned to Utah later that month and lived with Pamela's
mother.
In April of 1995, Yancy moved the District Court for a
temporary order changing Megan's custody to him. He also
petitioned for modification of custody pursuant to § 40-4-219, MCA.
The District Court concluded that it did not have subject matter
jurisdiction to modify custody under the Parental Kidnapping
Prevention Act (PKPA) and, further, that Yancy failed to satisfy
the statutory requirements for modification of custody. Yancy
appeals. Additional facts are set forth below where necessary to
our resolution of the issues.
1. Is Yancy's appeal properly before us?
Pamela contends that the District Court's order merely denied
Yancy's motion for temporary custody and that such an order is not
appealable under Rule 1, M.R.App.P. While we agree with Pamela
that Rule 1, M.R.App.P., does not authorize an appeal from an order
denying a motion for temporary change of custody, we disagree that
the District Court's May 30, 1995, order was a mere denial of such
a motion.
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Yancy filed a motion for a temporary order changing custody
and a petition for modification of custody under 5 40-4-219, MCA,
on the same date. The District Court held a hearing on May 14,
1995. The record reflects that, at the beginning of the hearing,
the parties and the court were confused as to whether the hearing
was limited to Yancy's motion for temporary custody or whether his
petition for modification also was being heard. The District Court
first indicated that only Yancy's motion for temporary custody was
before it, then indicated that it also would hear Yancy's petition
for modification of custody and, finally, indicated again that only
the motion for temporary custody was being heard.
The District Court's findings of fact, conclusions of law and
order state at the outset, and without further clarification, that
" [tlhis matter" was heard on May 14, 1995. The court's findings
and conclusions address both jurisdiction and custody modification.
Regarding the latter, the court concluded that Yancy had not met
the requirements of § 40-4-219, MCA, and denied Yancy's "petition."
On the basis of the record before us, we cannot conclude that
the District Court's order was limited to denying Yancy's motion
for a temporary change of custody. We conclude that the order at
issue substantively denied Yancy's § 40-4-219, MCA, petition for
modification of custody on the bases of lack of subject matter
jurisdiction and failure to satisfy the statutory requirements for
custody modification. As a result, we hold that the District
Court's order is appealable under Rule 1, M.R.App.P., and that
Yancy's appeal is properly before us.
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2. Did the District Court err in concluding that it did
not have subject matter jurisdiction to modify custody
under the PKPA?
A. APPLICABILITY OF THE PKPA
All fifty states have adopted the Uniform Child Custody
Jurisdiction Act (UCCJA) in some form to address interstate custody
disputes. See Meade v. Meade (4th Cir. 1987), 812 F.2d 1473, 1475.
However, the UCCJA was found to be inadequate in addressing the
problems of forum shopping and "child snatching" because it
operated at the state level. Erler v. Erler (1993), 261 Mont. 65,
69, 862 P.2d 12, 15. Moreover, as the Utah Court of Appeals
observed in Curtis v. Curtis (Utah Ct. App. 1990), 789 P.2d 717,
721 n.9, the UCCJA creates the possibility of several states having
concurrent jurisdiction over child custody determinations.
Congress enacted the PKPA in 1980 to establish national
standards under which the courts of various states could determine
whether they had jurisdiction in a child custody proceeding and
what effect to give custody determinations by courts of other
jurisdictions. Erler, 862 P.2d at 15. Under the PKPA, full faith
and credit ordinarily must be given to a custody determination made
by a court of another state if that court appropriately exercised
jurisdiction under PKPA standards. See 28 U.S.C. § 1738A(a);
Erler, 862 P.2d at 15.
Two underlying purposes of the PKPA are to discourage
continuing interstate controversies over child custody and to
facilitate the enforcement of custody determinations of sister
states. Erler, 862 P.2d at 15 (citation omitted). In this regard,
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the PKPA prevents the issuance of competing decrees of sister
states. Erler, 862 P.2d at 16 (citing Nielsen v. Nielsen (La.
1985), 472 So. 2d 133, 136). Thus, the PKPA sets forth standards
for determining the one state with jurisdiction to modify an
existing custody order. & 28 U.S.C. 55 1738A(d) and (f); Curtis,
789 P.2d at 721.
The purposes of the PKPA are achieved through both 28 U.S.C.
§§ 1738A(d) and (f). 28 U.S.C. 5 1738A(d) provides for continuing
jurisdiction in the state in which the original child custody
determination was made so long as certain enumerated requirements
are satisfied (see Erler
-I 862 P.2d at 15), while 28 U.S.C. §
1738A(f) allows a court of a different state to modify a custody
determination only when it has jurisdiction to make such a
determination under its own laws and the court which made the
original custody determination no longer has jurisdiction or has
declined to exercise such jurisdiction (see Meade, 812 F.2d at
1476-77). Thus, Congress' enactment of 28 U.S.C. §§ 1738A(d) and
(f) remedied the problem of possible concurrent jurisdiction
present in the UCCJA. Accordingly, where the PKPA applies,
necessary jurisdictional determinations must be made thereunder.
Yancy argues that, pursuant to Erler, the PKPA does not apply
to his petition for modification of custody. His reliance on
Erler, however, is misplaced.
In Erler, the parties' marriage was dissolved by a Montana
district court in Missoula County and the mother was granted sole
custody of the parties' minor children. The mother and children
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subsequently moved to Seattle, Washington and, thereafter, the
father moved to modify custody in the district court in Missoula
County. Erler, 862 P.2d at 13. On appeal, we affirmed the
district court's determination that it did not have subject matter
jurisdiction under the PKPA, concluding that the PKPA did not apply
because Montana was the only state involved in the custody dispute.
Erler, 862 P.2d at 16.
Here, Yancy petitioned a Montana court for modification of the
Utah court's child custody determination regarding Megan. Thus,
unlike in Erler, two states are involved in this custody dispute.
The PKPA was enacted by Congress to address such a situation and to
prevent the issuance of conflicting and competing custody decrees
in sister states. Erler, 862 P.2d at 16. We conclude, therefore,
that the PKPA is applicable here. Accordingly, we turn to the
issue of whether the District Court erred in concluding that it did
not have subject matter jurisdiction to modify custody under the
PKPA.
B. SUBJECT MATTER JURISDICTION UNDER THE PKPA
The PKPA generally requires the courts of a state to enforce--
and decline to modify--child custody determinations made by the
courts of other states. 28 U.S.C. 5 1738A(a). A specific
exception to the general rule authorizes a court to modify a child
custody determination made by a court in another state when two
requirements are satisfied: (1) the court has jurisdiction to make
a child custody determination; and (2) the court of the other state
no longer has jurisdiction or has declined to exercise
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jurisdiction. 28 U.S.C. § 1738A(f).
(1) Analysis of Montana Jurisdiction
Under the first requirement of 28 U.S.C. § 1738A(f), a Montana
district court must have jurisdiction to make the child custody
determination pursuant to Montana law. & 28 U.S.C. §
1738A(f) (1). Since the custody dispute in this case has interstate
ramifications, Montana's version of the UCCJA governs whether a
Montana district court has jurisdiction to make a custody
determination under Montana law. & §§ 40-7-101through 40-7-125,
MCA. Section 40-7-104, MCA, provides that " [tl he jurisdictional
provisions of 40-4-211 apply to this chapter."
Section 40-4-211(l), MCA, sets forth four alternative bases
under which a Montana district court has jurisdiction to "make a
child custody determination by initial or modification decree."
Because the statute is written in the disjunctive, only one of the
stated bases need exist in order for a Montana court to have
jurisdiction under Montana law. The District Court addressed each
alternative and concluded that it did not have jurisdiction to make
a custody determination under § 40-4-211(l), MCA. Given the facts
of this case, it is appropriate to limit our review to the District
Court's findings and conclusion under the § 40-4-211(1)(b), MCA,
basis for jurisdiction.
Section 40-4-211, MCA, provides in pertinent 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:
(bj it.is in the best interest of the child that a court
of this state assume jurisdiction because:
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(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 . . . .
The District Court found that neither the "significant connection"
factor referenced in § 40-4-211(l) (b) (i), MCA, nor the "substantial
evidence" factor referenced in § 40-4-211(1)(b) (ii), MCA, was
satisfied in this case. Based on those findings, the District
Court concluded that it did not have jurisdiction pursuant to § 40-
4-211(1) (b), MCA, to make a custody determination.
We review a district court's findings of fact to determine
whether the findings are clearly erroneous. In re Marriage of
Brownell (1993), 263 Mont. 78, 81, 865 P.2d 307, 309 (citation
omitted). A court's findings are clearly erroneous if they are not
supported by substantial evidence, the court misapprehends the
effect of the evidence, or our review of the record convinces us
that a mistake has been committed. Marriage of Brownell, 865 P.2d
at 309 (citation omitted). We review a district court's
conclusions of law to determine if the court's interpretation of
the law is correct. In re Marriage of Kovash (1995), 270 Mont.
517, 521, 893 P.2d 860, 863 (citation omitted).
The District Court found that "[tlhere are not significant
contacts with Montana I1 and did not further elucidate. Although the
District Court used the language "significant contacts," it
apparently was referring to the "significant connection" factor
contained in 5 40-4-211(l) (b) (i), MCA; as set forth above, that
statutory subsection, as it pertains to this case, requires that
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Megan and either Yancy or Pamela have a significant connection with
Montana.
Here, Yancy lives and works in Montana and, as a result,
clearly has a significant connection with this state. Indeed,
Pamela does not dispute Yancy's significant connection with Montana
and the court did not find otherwise. With regard to Megan's
connection to Montana, the record reflects that she resided in
Montana for nearly three months almost immediately preceding
Yancy's petition. In addition, she has visited Montana on numerous
occasions and for varying periods of time since the parties'
divorce. Moreover, the record indicates that Megan's paternal
grandmother lives in Montana.
Pamela argues that "[tlhere is clearly sufficient evidence in
the record to support the District Court's determination" and, in
support of her argument, sets forth facts of record indicating that
Megan has a significant connection with Utah. However, evidence
that Megan has a significant connection with Utah does not equate
to a lack of a significant connection with Montana.
We note that the District Court's ultimate finding that
‘I [tl here are not significant contacts with Montana" is
irreconcilable with its underlying findings regarding Megan's, and
even Pamela's, connection with Montana. For example, the court
found that Yancy and Pamela "both agree that [Pamela and Meganl
resided in Montana from January, 1995 until March, 1995." The
court further found that Pamela opened a bank account in Montana in
January of 1995 and that Pamela and Megan spent "periods of 1994"
10
in Montana. Thus, the District Court's finding that there are not
significant "contacts" with Montana is not supported by substantial
evidence and is clearly erroneous.
In light of the District Court's multiple findings regarding
Pamela and Megan's connection with Montana and the evidence of
record as set forth above, it is clear that Megan had a significant
connection with Montana as required by § 40-4-211(l) (b) (i), MCA.
As previously stated, the parties do not dispute that Yancy has a
significant connection with Montana and the District Court did not
find otherwise. Thus, the additional § 40-4-211(l) (b) (i), MCA,
requirement that one of the contestants also have a significant
connection with Montana is satisfied in this case.
The District Court also found that there is not substantial
evidence in Montana concerning Megan's present or future care,
protection, training and personal relationships. Pamela argues
that the District Court's finding in this regard is supported by
substantial evidence because she and Megan "were only in Montana
for a short period of time.” However, evidence that Megan and
Pamela were only in Montana for a "short period of time" does not
necessarily mean that substantial evidence regarding Megan's
present and future care, protection, training and personal
relationships does not exist in Montana. Moreover, § 40-4-
211(1) (b) (i), MCA, which contains the foregoing "substantial
evidence" prerequisite to jurisdiction, is not time-related.
The record contains the following evidence which exists in
Montana and which the District Court did not address in ultimately
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finding that there is not substantial evidence in Montana regarding
Megan's present and future care, protection, training and personal
relationships. Officer Silk It Wak Rivera, the highway patrol
officer who investigated Pamela and Megan's accident, testified
about the details of the accident and Pamela's DUI citation.
Marilyn Kober, the Stillwater County Justice of the Peace,
testified that Pamela had alcohol on her breath when she appeared
on her DUI charge. Moreover, the record reflects that Pamela and
Yancy's neighbors and friends in Nye, Montana, have information
about the parties' roles in caring for Megan. For example, Cleo
Eberhart (Cleo) testified that she did not have any concerns about
Pamela's capabilities as a mother and that she thought Pamela was
a good mother. Cleo further testified that Pamela was Megan's
primary caregiver. Finally, as previously stated, Yancy and his
mother--who is Megan's paternal grandmother--live in Montana. In
light of the foregoing evidence, we conclude that the District
Court's finding that there is not substantial evidence in Montana
regarding Megan's present or future care, protection, training and
personal relationships for jurisdictional purposes under § 40-4-
211(1) (b) (ii), MCA, is not supported by substantial evidence and,
therefore, is clearly erroneous.
Based on our conclusions that the District Court's
jurisdictional findings under § 40-4-211(l) (b), MCA, are clearly
erroneous, we hold that the District Court erred in concluding that
it did not have jurisdiction under § 40-4-211(l), MCA, to make a
custody determination.
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(2) Analysis of Utah Jurisdiction
The fact that Montana has jurisdiction under its own laws to
make a custody determination does not, however, resolve the issue
of whether the District Court has jurisdiction under the PKPA to
modify the original Utah custody determination. In order to do so,
the second requirement of 28 U.S.C. 5 1738A(f) also must be met;
namely, that Utah no longer has jurisdiction or has declined to
exercise such jurisdiction to modify its earlier custody
determination. See 28 U.S.C. § 1738A(f) (2). Yancy did not file a
motion or petition for modification of custody in Utah and the
parties agree that Utah has not declined to exercise jurisdiction.
Therefore, our review is limited to the District Court's conclusion
that Utah did not lose jurisdiction over matters relating to
Megan's custody.
Utah's version of the UCCJA, set forth at Title 78, Chapter
45c of the Utah Code Annotated, governs whether Utah district
courts have jurisdiction. Section 78-45c-3, Utah Code Ann., like
§ 40-4-211(l), MCA, sets forth four alternative bases under which
a Utah district court would have jurisdiction to "make a child
custody determination by initial or modification decree." The
District Court found that, when this proceeding was commenced in
April of 1995, Utah was Megan's home state. Based on that finding,
the court concluded that "Utah did not lose its jurisdiction."
Under § 78-45c-3(l) (a) (i), Utah Code Ann., Utah has
jurisdiction if Utah was, in fact, Megan's home state at the time
Yancy commenced these proceedings. Section 78-45c-2(5), Utah Code
13
Ann., defines "home state" as "the state in which the child
immediately preceding the time involved lived with his parents [or]
parent . . for at least six consecutive months. . . .'I Yancy and
Pamela agree that Megan lived in Montana with them from January
until sometime in March of 1995. Therefore, the District Court's
finding that Utah was Megan's home state is not supported by
substantial evidence and is clearly erroneous.
Notwithstanding the District Court's erroneous finding,
however, the court's conclusion that Utah has jurisdiction over
matters involving Megan's custody is not necessarily incorrect. It
is well-established that we will affirm a district court's decision
which reaches the right result, regardless of the court's
reasoning. See Farmer's Union Cent. Exch. v. Department of Revenue
(1995) I 272 Mont. 471, 475, 901 P.2d 561, 563; Bohmer v. Uninsured
Employers' Fund (1994), 266 Mont. 289, 291, 880 P.2d 816, 817.
Under Utah law, as in Montana, another basis for jurisdiction
over custody determinations is that it is in the child's best
interests for Utah to assume jurisdiction because the child and at
least one contestant have a significant connection with Utah and
there exists in Utah substantial evidence regarding the child's
present and future care, protection, training and personal
relationships. & § 78-45c-3(l) (b), Utah Code Ann. We note that
the District Court did not address this basis for Utah
jurisdiction, presumably because it concluded that Utah was Megan's
home state.
The record contains the following evidence regarding Pamela
14
and Megan's connection with Utah. Megan was born in Utah and has
lived there most of her life, with the exception of approximately
three months in which she lived in Montana and periods of time in
1994 when she visited Montana. After leaving Montana in March of
1995, Pamela and Megan returned to Utah and lived with Pamela's
mother and Megan's maternal grandmother, Ivy Northlander.
Additionally, Pamela's other children, who are Megan's half-
siblings, live in Utah. Thus, the record reflects that both Pamela
and Megan have a significant connection with Utah.
The record also reflects that substantial evidence exists in
Utah concerning Megan's present and future care, protection,
training and personal relationships. For example, Lonni Watson, a
friend of Pamela's in Utah, testified that she did not have any
concerns about Pamela's ability to care for Megan and that Pamela
"spoils [Meganl rotten." Additionally, Pamela's mother, Ivy,
testified regarding Pamela's relationship with Megan. IVY
testified that Pamela and Megan were living with her in Utah and
that Megan was well cared for by Pamela.
In light of the foregoing evidence, we conclude that, at the
time Yancy petitioned the District Court for modification of Utah's
custody determination, Utah had jurisdiction to make a child
custody determination under § 78-45c-3(l) (b), Utah Code Ann. Thus,
we hold that the District Court's conclusion that Utah did not lose
jurisdiction is correct. We observe, in this regard, that our
conclusions that Montana and that Utah both have jurisdiction under
their respective laws to make a child custody determination
15
illustrate the problems regarding concurrent jurisdiction which can
arise under the UCCJA and which were remedied by enactment of the
PKPA.
Since Utah has jurisdiction to make a custody determination,
the requirement of 28 U.S.C. § 1738A(f) (2)--that Utah no longer has
jurisdiction to make a child custody determination or declined to
exercise such jurisdiction--is not satisfied. Thus, notwith-
standing that the requirement of 28 U.S.C. § 1738A(f)(i)--that
Montana has jurisdiction to make a custody determination under
Montana law--is satisfied, the District Court was not authorized to
modify the original Utah custody determination regarding Megan
under 28 U.S.C. § 1738A(f). Accordingly, we hold that the District
Court correctly concluded that it did not have subject matter
jurisdiction under the PKPA to modify Utah's original custody
determination in this case.
Affirmed. i
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