March 18 2008
DA 07-0354
IN THE SUPREME COURT OF THE STATE OF MONTANA
2008 MT 93N
IN RE THE MARRIAGE OF:
RACHEL FICKINGER,
Petitioner and Appellee,
v.
SIMON T. FICKINGER,
Respondent and Appellant.
APPEAL FROM: District Court of the Fourth Judicial District,
In and For the County of Missoula, Cause No. DR 03-521,
Honorable Robert L. Deschamps, III, Presiding Judge
COUNSEL OF RECORD:
For Appellant:
P. Mars Scott, P. Mars Scott Law Offices, Missoula, Montana
For Appellee:
Jamie L. McKittrick, Attorney at Law, Missoula, Montana
Submitted on Briefs: February 20, 2008
Decided: March 18, 2008
Filed:
__________________________________________
Clerk
Justice Jim Rice delivered the Opinion of the Court.
¶1 Pursuant to Section I, Paragraph 3(d)(v), Montana Supreme Court 1996 Internal
Operating Rules, as amended in 2003, the following memorandum decision shall not be
cited as precedent. It shall be filed as a public document with the Clerk of the Supreme
Court and shall be reported by case title, Supreme Court cause number and result to the
State Reporter Publishing Company and West Group in the quarterly table of noncitable
cases issued by this Court.
¶2 Appellant Simon Fickinger (Simon) appeals the order of the Fourth Judicial
District Court, Missoula County, declining to exercise jurisdiction over the parties’ child
custody dispute and inviting the State of Indiana to exercise jurisdiction. We affirm.
¶3 Simon and Rachel were married in Indiana on July 8, 1989. In 1993 they moved
to Montana, where their son, A.H.F., and daughter, A.E.F., were born in 1994 and 1997,
respectively. The family resided in Montana until Simon and Rachel’s dissolution on
September 23, 2003. Pursuant to the parties’ August 7, 2003 Stipulated Parenting Plan,
which was approved by the District Court, Rachel then relocated to Indiana with the
children.
¶4 The children quickly became integrated into school, sports, and church activities
in Indiana and apparently progressed well, making friends and achieving high marks in
school. A.E.F. was placed in a school program for talented and gifted children. The
children have returned to Montana for numerous visits with Simon and his parents since
leaving, and Simon’s parents and siblings often visit the children in Indiana, staying at
Rachel’s home. The children have also received medical care in Indiana.
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¶5 On May 19, 2006, Simon moved the District Court to modify the parties’
parenting plan, requesting that their son, A.H.F., be allowed to reside with Simon in
Missoula. The District Court appointed a guardian ad litem (GAL) to conduct an initial
investigation, but prior to the submission of the GAL’s report, Rachel moved the District
Court to transfer jurisdiction to Indiana, pursuant to the Uniform Child Custody
Jurisdiction and Enforcement Act (UCCJEA). The GAL’s report ultimately
recommended that A.H.F. be allowed the opportunity to try residing with Simon in
Missoula for a school year. However, the District Court granted Rachel’s motion,
concluding that Indiana would be a more appropriate forum.
¶6 The District Court determined that “Indiana is a more appropriate forum to
exercise jurisdiction over the minor children, in part, because the children have resided
there for the last three and a half years. Furthermore, most, if not all, witnesses are
located in Indiana including teachers, friends, clergy, coaches and others.” The court also
concluded that the possibility of videoconferencing would be cumbersome and costly,
and that the GAL’s reluctance to travel to Indiana to meet with Rachel, the children, and
others was an obstacle that weighed in favor of transferring jurisdiction. Simon appeals.
¶7 We review a district court’s decision to decline jurisdiction for an abuse of
discretion. Stoneman v. Drollinger, 2003 MT 25, ¶ 10, 314 Mont. 139, ¶ 10, 64 P.3d 997,
¶ 10 (citations omitted).
¶8 This Court’s jurisdiction over child custody cases is governed by the UCCJEA.
Stoneman, ¶ 14. We explained the applicable rule in Stoneman:
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Under the UCCJEA, a Montana court has jurisdiction to make a
child custody determination if Montana is the “home state” of the child.
Section 40-7-201(1), MCA. The “home state” is defined as the state in
which a child lived with a parent or a person acting as parent for at least six
months immediately before the commencement of a child custody
proceeding. Section 40-7-103(7), MCA. As the “home state” of a child,
Montana will continue to have exclusive, continuing jurisdiction unless a
Montana court declines to exercise its jurisdiction. Section 40-7-202(2),
MCA. A court may decline to exercise its jurisdiction at any time if the
court determines that it is an inconvenient forum under the circumstances
and that a court of another state is a more appropriate forum to make the
child custody determination. Section 40-7-108(1), MCA.
Stoneman, ¶ 15. When determining whether a court of another state would be a more
appropriate forum, a district court must consider all relevant factors, including the
following:
(a) whether domestic violence has occurred and is likely to continue in the future
and which state could best protect the parties and the child;
(b) the length of time that the child has resided outside this state;
(c) the distance between the court in this state and the court in the state that would
assume jurisdiction;
(d) the relative financial circumstances of the parties;
(e) any agreement of the parties as to which state should assume jurisdiction;
(f) the nature and location of the evidence required to resolve the pending
litigation, including testimony of the child;
(g) the ability of the court of each state to decide the issue expeditiously and the
procedures necessary to present the evidence; and
(h) the familiarity of the court of each state with the facts and issues in the
pending litigation.
Section 40-7-108(2), MCA.
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¶9 The parties agree that Montana is the children’s “home state” and that the District
Court had jurisdiction to determine custody unless it declined to exercise its jurisdiction.
The parties also acknowledge that the District Court considered the aforementioned
factors. However, Simon argues that the District Court’s consideration of those factors
was “arbitrary and capricious” because: (1) the GAL’s report indicated that all witnesses
agree the children are “doing fine currently” in Indiana, and thus witness testimony
would be limited and uncontested and make an Indiana forum unnecessary; and (2)
Montana courts would be able to resolve this case more expeditiously.
¶10 Under the UCCJEA, the District Court was authorized to make an initial
determination about whether Montana was an inconvenient forum. It did so, finding that
the children have lived in Indiana for a substantial period of time and that most of the
witnesses are in Indiana. The District Court concluded that the possibility of using
videoconferencing to present witnesses would be untenable. In addition, a trial has
already been scheduled in Indiana for July 2008, and thus Simon’s argument that
Montana courts would be more expeditious is unpersuasive. Under the applicable
standard of review, it is clear the District Court considered the relevant factors and did
not abuse its discretion by declining to exercise jurisdiction.
¶11 It is appropriate to decide this case pursuant to our Order of February 11, 2003,
amending Section I.3 of our 1996 Internal Operating Rules and providing for
memorandum opinions. It is manifest on the face of the briefs and the record before us
that the appeal is without merit because the findings of fact are supported by substantial
evidence, the legal issues are clearly controlled by settled Montana law which the District
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Court correctly interpreted, and there was clearly no abuse of discretion by the District
Court.
¶12 We affirm the judgment of the District Court.
/S/ JIM RICE
We concur:
/S/ JAMES C. NELSON
/S/ JOHN WARNER
/S/ PATRICIA COTTER
/S/ BRIAN MORRIS
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