April 27 2010
DA 09-0597
IN THE SUPREME COURT OF THE STATE OF MONTANA
2010 MT 86
IN RE THE MARRIAGE OF
JENNIFER FONTENOT,
Petitioner and Appellant,
and
JACOB RYAN FONTENOT,
Respondent and Appellee.
APPEAL FROM: District Court of the Eighth Judicial District,
In and For the County of Cascade, Cause No. ADR 02-556
Honorable Thomas M. McKittrick, Presiding Judge
COUNSEL OF RECORD:
For Appellant:
Gary M. Zadick; Ugrin, Alexander, Zadick & Higgins,
Great Falls, Montana
For Appellee:
Barbara E. Bell; Marra, Sexe, Evenson & Bell, P.C.,
Great Falls, Montana
Submitted on Briefs: March 17, 2010
Decided: April 27, 2010
Filed:
__________________________________________
Clerk
Chief Justice Mike McGrath delivered the Opinion of the Court.
¶1 Jennifer Fontenot appeals from the District Court’s October 14, 2009 Order on
Respondent’s Motion to Dismiss and Petitioner’s Motion in Support of Jurisdiction. We
affirm.
¶2 Jennifer contends on appeal that the District Court erred in deciding that the
custody issues in this case should be determined by the courts of Louisiana, and not
Montana.
BACKGROUND
¶3 This is the third time this case has been before this Court on appeal on the issue of
whether Montana or Louisiana courts should determine the custody of the parties’ child, a
son who is now nine years old. In re the Marriage of Fontenot, 2003 MT 342, 317 Mont.
298, 77 P.3d 206 (Fontenot I); In re the Marriage of Fontenot, 2006 MT 324, 335 Mont.
79, 149 P.3d 28 (Fontenot II).
¶4 Jennifer and Jacob’s son was born in 2001; they were married and lived together
for a time. Jacob is a member of the United States Air Force who was stationed in Great
Falls and Jennifer described her occupation as entertainer. The Air Force transferred
Jacob to his home state of Louisiana and Jennifer filed for divorce in Montana. In
December, 2002, she left the son with a babysitter with arrangements for him to stay
overnight. The sitter noticed a significant bruise on the boy’s buttock and called the
Great Falls Police. The Police notified the Department of Family Services and a social
worker responded. She found a severe bruise on the boy and could see the imprints of
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several fingers in it. She took the boy to the emergency room where the attending
physician determined that the bruising was not accidental and that he did not suffer from
any disorder that made him susceptible to easy bruising.
¶5 The social worker took emergency custody of the boy and placed him in a secure
situation, as authorized by § 41-3-301(1), MCA. She contacted Jennifer and her
boyfriend at the time, and interviewed them about the bruise. Both denied knowing
anything about it although both admitted that they disciplined the child by spanking him.
While Jennifer was out of the room, the boyfriend admitted to the social worker that if
the boy had been abused, it was his fault. Both Jennifer and the boyfriend were evasive
or non-responsive to questions about drug use, and the boyfriend, a member of the Air
Force, would not respond to questions about whether he was the subject of disciplinary
proceedings.
¶6 Great Falls Police contacted the social worker to report that Jacob had been calling
seeking information about his son, and they asked the social worker to call Jacob. She
did, explaining the situation to him. He stated that he was coming to Montana to care for
his son and arrived shortly thereafter with his mother and grandmother. After consulting
with the other professionals in her office and with the County Attorney’s office, the
social worker determined that there were no custody orders concerning the boy and that
either parent was entitled to physical custody as provided in § 40-6-221, MCA. The
social worker therefore turned the boy over to Jacob, who returned with him to Louisiana.
The boy has lived with Jacob or Jacob’s mother in Louisiana since late December, 2002.
Jennifer has maintained little contact with her son since that time.
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¶7 Both Jennifer, in Montana, and Jacob, in Louisiana, commenced judicial
proceedings seeking custody of their son. In Montana, the District Court in Cascade
County, after conferring by telephone with the judge in Louisiana, decided that Louisiana
courts should determine the child custody issues. In Fontenot I, this Court reversed and
remanded to the District Court for a hearing on whether Montana should exercise
jurisdiction. On remand the District Court determined that Montana courts should
exercise jurisdiction over the child custody issues. In Fontenot II, this Court again
reversed, determining that the District Court had failed to apply the proper legal standard
and remanded for a determination of whether Montana courts should exercise
jurisdiction. In 2004, while these proceedings occurred in Montana, the court in
Louisiana held a custody hearing at which Jennifer appeared with counsel. The
Louisiana court awarded custody to Jacob and Jennifer did not appeal.
¶8 In October, 2009, the District Court in Montana entered its order concluding that
Louisiana courts should exercise jurisdiction. Jennifer appeals from that order.
STANDARD OF REVIEW
¶9 This Court reviews a decision to decline jurisdiction to determine whether the
district court abused its discretion. Fontenot I, ¶ 11. We review conclusions of law to
determine whether they are correct. Paslov v. Cox, 2004 MT 325, ¶ 22, 324 Mont. 94,
104 P.3d 1025.
DISCUSSION
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¶10 In Fontenot II we held that since Montana1 and Louisiana had different statutes
governing jurisdiction of child custody disputes, resolution of the issue required
application of the Parental Kidnapping Prevention Act, 28 USC § 1738A. The PKPA
was designed to prevent the issuance of competing custody decrees by sister states, as
happened in this case. Fontenot II, ¶ 26.
¶11 On remand after Fontenot II, the District Court conducted a hearing and received
briefs and arguments from the parties. The District Court then issued the order appealed
from, in which it found that the child had resided in Louisiana for six years and that the
courts in that state had conducted a number of hearings on the merits of the custody
dispute and were familiar with the facts and issues. The District Court found that the
child’s home, school and community are in Louisiana and that he has received continuous
and stable care there.
¶12 The District Court applied the PKPA and determined that Montana could exercise
jurisdiction because jurisdiction existed under Montana law and because Montana was
the home state of the child within six months of the date the proceedings for custody were
commenced. 28 USC § 1738A. The District Court further determined that under § 40-7-
108, MCA, a Montana court may “decline to exercise its jurisdiction at any time if it
determines it is an inconvenient forum under the circumstances, and a court of another
state is a more appropriate forum.” (Emphasis in original.)
1
Montana has adopted the Uniform Child Custody Jurisdiction and Enforcement Act, §§
40-7-101 through -317, MCA.
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¶13 Considering the facts presented, the District Court determined that Louisiana was
the more convenient forum to determine the custody issue. The District Court noted that
over five years had passed since it last considered the inconvenient forum issues in § 40-
7-108, MCA. The District Court again noted the length of time the child has lived in
Louisiana and the fact that the evidence required to resolve custody issues is primarily in
that state. While the child was initially taken into custody in Montana as a victim of
suspected abuse, the District Court concluded that there was no evidence that the facts
surrounding those events “are more relevant to a custody determination than the people
and circumstances associated with the child’s life in Louisiana for the last five and one-
half years.”
¶14 The District Court noted again that the Louisiana court had held hearings on the
merits of the custody issue and is familiar with the issues, whereas in Montana only
jurisdictional issues had been addressed. The District Court concluded that under the
circumstances the Louisiana court is in a better position to resolve the issues
expeditiously. The District Court found no evidence of domestic violence between
Jennifer and Jacob and no evidence that the relative financial positions of the parties
would prevent them from adequately litigating in either state. The District Court further
found that the
overwhelming fact of this case is that Jennifer—in spite of her efforts to
retain custody of the minor child—has had very little, if any, contact with
the minor child since December of 2002, when the child was taken to
Louisiana; whereas the child has presumably developed significant
relationships with Jacob and others in his community in Louisiana.
The minor child’s home, school and community are in Louisiana.
Evidence regarding the continuity and stability of care of the child is in
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Louisiana. Evidence regarding the minor child’s developmental needs is in
Louisiana. It is simply not in the best interests of the child to litigate the
proceedings in Montana and it is in the best interest of the child that
Louisiana assumes and/or retains jurisdiction.
The District Court concluded that it should decline to exercise jurisdiction because
Louisiana is a more appropriate forum to determine custody issues. Even if Montana
were a more appropriate forum in 2004, Louisiana is the more appropriate forum now.
¶15 The District Court is affirmed.
/S/ MIKE McGRATH
We concur:
/S/ JAMES C. NELSON
/S/ PATRICIA O. COTTER
/S/ MICHAEL E WHEAT
/S/ W. WILLIAM LEAPHART
/S/ BRIAN MORRIS
/S/ JIM RICE
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