June 8 2011
DA 10-0494
IN THE SUPREME COURT OF THE STATE OF MONTANA
2011 MT 133
IN RE THE MARRIAGE OF:
DAVIE LIN LLOYD,
Petitioner and Appellant,
and
BRETT CAMARON LLOYD,
Respondent and Appellee.
APPEAL FROM: District Court of the First Judicial District,
In and For the County of Lewis and Clark, Cause No. ADR 10-487
Honorable Dorothy McCarter, Presiding Judge
COUNSEL OF RECORD:
For Appellant:
KD Feeback; Gough, Shanahan, Johnson & Waterman, PLLP;
Helena, Montana
For Appellee:
Joan Hunter; Hunter Law Firm; Helena, Montana
Submitted on Briefs: April 6, 2011
Decided: June 8, 2011
Filed:
__________________________________________
Clerk
Justice Beth Baker delivered the Opinion of the Court.
¶1 Petitioner Davie Lin Lloyd (Davie) appeals an order of the District Court declining
transfer of jurisdiction over the parties’ child custody proceeding to Kentucky. The
dispositive issue on appeal is whether the court correctly determined that Montana has
continuing jurisdiction under the Uniform Child Custody and Jurisdiction Enforcement
Act (UCCJEA).
FACTUAL AND PROCEDURAL BACKGROUND
¶2 Davie and Brett Lloyd (Brett) were married in Billings, Montana, on January 2,
1997, and are the parents of one minor child, M.K.L. On September 10, 2004, the
Thirteenth Judicial District Court issued a decree of dissolution and parenting plan. The
parenting plan allowed for each parent to have alternating weekends, alternating holidays,
and two consecutive weeks with M.K.L. during the summer.
¶3 The parenting plan also required, pursuant to § 40-4-217, MCA (2003), a specific
procedure if a parent’s change of residence would significantly affect the child’s contact
with the other parent. The moving parent was required to prepare written notice of his or
her intent to change residence, prepare a proposed revised residential schedule, and serve
the non-moving parent personally or by certified mail not less than 30 days before the
proposed change of residence.
¶4 Subsequent to entry of the decree, Davie and M.K.L. moved to Texas and Brett
moved from Billings to Helena, Montana. Davie then moved to Oklahoma. Although
she did not fully comply with the parenting plan’s moving provisions governing change
2
in residence, Brett assisted her in the move to Texas and was aware of Davie’s address
and M.K.L.’s whereabouts while they resided in Texas and in Oklahoma.
¶5 In July 2009, M.K.L. was supposed to visit Brett during her summer vacation.
Despite Brett’s attempts to meet all of Davie’s demands, including extensive travel
arrangements and agreeing that M.K.L. would spend half of her time in Montana with
Davie’s extended family, Davie did not put M.K.L. on the plane. Shortly thereafter, Brett
filed a police report for custodial interference. The Lewis and Clark County sheriff’s
office contacted Davie and obtained a felony warrant in Oklahoma, her last known
residence, for parenting interference. On July 27, 2009, Brett filed a motion to amend the
parenting plan, seeking to have M.K.L. live with him in Montana and visit Davie during
the summer. Brett also filed a motion to hold Davie in contempt for failing to allow his
summer parenting time in violation of the parenting plan.
¶6 In August 2009, prior to being served with Brett’s motions, Davie moved her
residence again, this time to Kentucky. Davie did not provide Brett with an address for
her new residence, and he was unable to effectively serve her at her last known address in
Oklahoma. In May 2010, Davie filed in Kentucky state court a petition for full faith and
credit of the 2004 Montana decree and parenting plan. The petition stated that, to her
knowledge, no other proceedings were ongoing in this matter. On July 16, 2010, Brett
finally secured personal service of his motions at Davie’s place of employment in
Kentucky.
¶7 On August 2, 2010, the District Court for the Thirteenth Judicial District
transferred the case to the First Judicial District Court, Lewis and Clark County. On
3
August 19, 2010, Brett filed an ex parte motion to transfer care, custody, and control of
M.K.L. to him and allow him to take her back to Montana. His affidavit supporting the
motion represented that Davie still had not informed him of her new address or allowed
contact with M.K.L. Brett claimed Davie did not allow him the parenting time provided
under the parenting plan and restricted the time he has been allowed by imposing
conditions under threat of never seeing his daughter again. Brett claimed that, due to
Davie’s behavior, he had been unable to communicate with his daughter for nearly two
years. The First Judicial District Court entered an order that day in which it found Davie
had willfully and maliciously withheld M.K.L. from Brett for a period in excess of one
year. The court noted that a felony warrant was outstanding and a motion for contempt
was pending. The court ordered that M.K.L. be immediately transferred to her father and
set a hearing on the matter for September 7, 2010. Davie was served notice of the court’s
order on August 24, 2010.
¶8 Davie obtained counsel in Montana and, on August 27, 2010, filed a motion to
vacate the September hearing. Davie informed the court that she had filed a motion with
the Fleming County Circuit Court of Kentucky to grant full faith and credit to the parties’
2004 decree and parenting plan. Davie argued the Montana court should stay its decision
until the Kentucky court determined whether it had jurisdiction. She also contended the
ex parte order requiring the transfer of M.K.L. to her father was improper for failing to
meet Uniform District Court Rules requiring notice to opposing counsel.
¶9 On September 2, 2010, the Kentucky court sent a letter to the Montana District
Court, stating:
4
Pursuant to KRS 403.820 and MCA 40-7-140, the sections, respectively, of
the Kentucky and Montana legislative adoptions of the UCCJEA covering
exclusive, continuing jurisdiction of the state which has made the initial
child custody determination, this Court has determined that it is desirable
for the District Court in Lewis and Clark County (in the State of Montana,
where this action was commenced initially), to make certain findings and
determinations with respect to this action.
¶10 Recognizing that both Montana and Kentucky have adopted the UCCJEA, the
Kentucky court requested the Montana court to determine whether it had exclusive,
continuing jurisdiction under the Act and, if so, whether it believed the Kentucky court
would be a more convenient forum in which to conduct further child custody
proceedings. The Kentucky court also requested the Montana court to consider whether
Brett’s visitation was prevented between 2004 and 2009, whether Davie had been given
appropriate notice regarding the Montana modification motion, and whether Davie had
intentionally misled the Kentucky court when she filed her request for full faith and credit
in May 2010 stating that, to her knowledge, no other proceedings were ongoing in this
matter. The Kentucky court also issued an order summarizing an agreement of the
Montana and Kentucky judges that M.K.L. remain in school in Kentucky and that any
questions be resolved in the September 7, 2010 hearing.
¶11 On September 7, 2010, the court held a hearing on Brett’s motion for immediate
transfer of custody and to consider the Kentucky court’s requests. Both Davie and Brett
were present with counsel. Davie contended that Brett consented to each of her moves
from 2004 to the present and that he was also aware of her address at every location.
Davie claimed she filed her motion to transfer jurisdiction of the custody proceedings to
Kentucky, because Kentucky is now M.K.L.’s “home state.”
5
¶12 The District Court issued a decision and order of jurisdiction on September 30,
2010. Regarding parental interference, the District Court found Brett was not informed
of M.K.L’s actual residential address in Kentucky until the September 2010 hearing. The
court found Davie failed and refused to facilitate contact between Brett and M.K.L. even
before the move to Kentucky and that Brett was “cheated out of his rightful parenting
times by Davie’s conditions.”
¶13 Regarding the child’s connection to Montana, the court found that M.K.L. had
extended family in Montana and no relatives in Kentucky. It also found that Davie’s job
likely will result in another move, thereby severing any Kentucky connection in only a
few years. In addition, the court found Davie’s car is still registered in Montana and she
does not have a Kentucky driver’s license.
¶14 The court further found that Brett made many attempts to serve Davie with his
July 2009 motion to amend the parenting plan. In light of the fact that Davie deliberately
kept her residence secret from Brett, the Court found that service on Davie in July 2010
was not untimely. The court also found, however, that Davie had not intentionally misled
the Kentucky court because her action in Kentucky was filed in May 2010 and she did
not receive service of the Montana action until two months later.
¶15 Regarding Davie’s multiple relocations, the court concluded that although Davie
failed to follow the parenting plan’s procedure for change of residence, Brett waived that
issue by assenting to Davie’s moves to Texas and Oklahoma without following the
provisions of the plan.
6
¶16 The court concluded Montana is the “home state” of the child and M.K.L. has a
significant connection to the state of Montana to maintain jurisdiction over the custody of
M.K.L. The court decided that although M.K.L. has lived in Kentucky for more than six
months, that fact is not sufficient to transfer jurisdiction. Davie appeals.
STANDARD OF REVIEW
¶17 We review for correctness a district court’s interpretation and application of
statutes. Kulstad v. Maniaci, 2009 MT 326, ¶ 50, 352 Mont. 513, 220 P.3d 595. Our
standard of review of a decision on a motion to decline jurisdiction is whether the district
court abused its discretion. In re Myrland, 2010 MT 286, ¶ 11, 359 Mont. 1, 248 P.3d
290 (citing In re Marriage of Stoneman, 2003 MT 25, ¶ 10, 314 Mont. 139, 64 P.3d 997).
A district court’s findings of fact will not be disturbed unless they are clearly erroneous.
In re Marriage of Fontenot, 2006 MT 324, ¶ 20, 335 Mont. 79, 149 P.3d 28. A finding is
clearly erroneous if it is not supported by substantial evidence, if the district court
misapprehended the effect of the evidence, or if our review of the record convinces us
that the district court made a mistake. In re Marriage of Steinbeisser, 2002 MT 309,
¶ 17, 313 Mont. 74, 60 P.3d 441.
DISCUSSION
¶18 As a preliminary matter, we address Davie’s assertion that the court’s ex parte
order requiring transfer of M.K.L. was illegal for failure to follow the Uniform District
Court Rules requiring notice to opposing counsel. M. R. App. P. 6(1) permits an appeal
from a final judgment and from those final orders specified in M. R. App. P. 6(2), (3) and
(4). Subsection (3), which defines the final orders appealable in civil cases, does not
7
include an order temporarily transferring custody pending a show cause hearing. See
M. R. App. P. 6(3). We have denied review of orders that do not meet the criteria of
M. R. App. P. 6 and are interlocutory. See Farmer’s Union Mut. Ins. Co. v. Bodell, 2008
MT 363, 346 Mont. 414, 197 P.3d 913. We also note the transfer order was not
implemented pending resolution of the jurisdictional determination. The record indicates
that the Montana and Kentucky courts communicated regarding the transfer order and
agreed that M.K.L. should remain in school in Kentucky until jurisdiction is decided. We
therefore decline to review this claim on the present appeal.
¶19 Davie’s principal claim on appeal is that Montana does not have continuing
jurisdiction over this matter under the applicable provisions of the UCCJEA. Pursuant to
the UCCJEA, a Montana court has jurisdiction to make an initial child custody
determination only if:
this state is the home state of the child on the date of the commencement of
the proceeding or was the home state of the child within 6 months before
the commencement of the proceeding and the child is absent from this state
but a parent or person acting as a parent continues to live in this state.
Section 40-7-201(1)(a), MCA. The pertinent date for purposes of determining
jurisdiction is the date of commencement of a child custody proceeding, that is, the date
the first pleading was filed. Section 40-7-103(5), MCA; In re Myrland, ¶ 17 (citing
Stephens v. Fourth Jud. Dist. Ct., 2006 MT 21, ¶ 13, 331 Mont. 40, 128 P.3d 126).
¶20 Davie contends that because she and M.K.L. currently reside in Kentucky and
lived there six months before she filed a motion for full faith and credit and before Brett
filed a motion to amend the parenting plan, Kentucky is the home state of M.K.L. and
8
should exercise jurisdiction over the child custody proceeding. However, Brett’s motion
to amend the parenting plan was not the commencement of the custody proceeding. For
purposes of jurisdiction, the initial custody proceeding commenced on June 14, 2004,
when the petition for dissolution and proposed parenting plan were filed with the
Thirteenth Judicial District Court, Yellowstone County, Montana. At the time of filing,
Montana was M.K.L.’s home state and the Montana court entered the dissolution and
custody decree. The District Court was therefore correct in finding that Montana is
M.K.L.’s home state for the purpose of jurisdiction.
¶21 Davie is incorrect in asserting that her petition for full faith and credit transferred
jurisdiction over the proceedings to Kentucky. While full faith and credit may be
acquired in any UCCJEA state for the purpose of enforcing child custody determinations,
a motion for full faith and credit does not automatically transfer jurisdiction of the matter.
See § 40-7-303, MCA. A state court other than one in the home state is not permitted to
exercise jurisdiction over custody proceedings unless the home state determines that it no
longer has a significant connection to the child, the home state declines jurisdiction
because it finds another state to be a more convenient forum, or temporary jurisdiction is
required due to a child protection emergency. Sections 40-7-201 to -204, MCA. “[T]he
original decree State is the sole determinant of whether jurisdiction continues. A party
seeking to modify a custody determination must obtain an order from the original decree
State stating that it no longer has jurisdiction.” Commissioners’ Note, § 40-7-202, MCA;
see also § 40-7-203, MCA. Davie’s motion cannot be considered a transfer of
9
jurisdiction because only a Montana court can determine whether Montana maintains
jurisdiction.
¶22 Furthermore, a motion for full faith and credit is not a motion to commence or
modify a custody proceeding. Davie’s motion acknowledges that custody proceedings
were commenced and a valid and enforceable custody decree was issued in Montana.
The Kentucky court also acknowledged that Montana is M.K.L.’s home state and stayed
its proceedings for a Montana court to determine whether it will exercise continuing and
exclusive jurisdiction.
¶23 As the home state of M.K.L., Montana has exclusive continuing jurisdiction over
the proceedings until:
a court of this state determines that neither the child, the child and one
parent, nor the child and a person acting as a parent have a significant
connection with this state and that substantial evidence is no longer
available in this state concerning the child’s care, protection, training, and
personal relationships[.]
Section 40-7-202(1)(a), MCA (emphasis added). The Commissioners’ Notes to § 40-7-
202, MCA, inform the courts’ analysis of this issue:
If the relationship between the child and the person remaining in the State
with exclusive, continuing jurisdiction becomes so attenuated that the court
could no longer find significant connections and substantial evidence,
jurisdiction would no longer exist.
Commissioners’ Note 2, § 40-7-201, MCA.
¶24 The District Court considered that M.K.L.’s father lives in Montana and plans to
reside here for the rest of his life. The court also noted that all of M.K.L.’s extended
family members still live in Montana. Her father has visitation rights and M.K.L. has
10
spent extended time in Montana visiting her father and her family. In fact, the only
reason M.K.L. has not visited Montana recently is due to Davie’s interference. The court
had substantial evidence from which to conclude that significant connections with
Montana remain.
¶25 Pursuant to § 40-7-202(2), MCA, when a Montana court is the home state and
finds a significant connection to maintain continuing and exclusive jurisdiction, a court
may nonetheless decline jurisdiction if it finds another court would be a more convenient
forum. In response to the Kentucky court’s request that Montana consider whether
Kentucky would be a more convenient forum, the District Court considered Davie’s and
M.K.L.’s limited connection to Kentucky, including that they would likely be leaving that
state before long and that Davie did not have a driver’s license or her car registered in
Kentucky. In light of all the circumstances, and based on the evidence before it, the
District Court did not find Kentucky to be a more appropriate forum for further child
custody proceedings.
¶26 Davie has not met her burden of demonstrating clear error in the District Court’s
findings of fact. The court held a hearing during which it considered evidence of
M.K.L.’s development, her relationship with both of her parents, and her contacts with
both Montana and Kentucky. The court had discretion to assess the credibility of the
witnesses. Albrecht v. Albrecht, 2002 MT 227, ¶ 47, 311 Mont. 412, 56 P.3d 339. Its
findings were based on substantial credible evidence and its decision to exercise
continuing and exclusive jurisdiction was fully reasoned.
11
CONCLUSION
¶27 The District Court correctly concluded that Montana is M.K.L.’s “home state”
under the UCCJEA. It did not abuse its discretion in finding that M.K.L. has a significant
connection to Montana or that Kentucky would not be a more convenient forum for
conducting further child custody proceedings in this matter.
¶28 We affirm.
/S/ BETH BAKER
We concur:
/S/ JAMES C. NELSON
/S/ MICHAEL E WHEAT
/S/ JIM RICE
/S/ BRIAN MORRIS
12