In Re the Marriage of Bolton

No. 84-83

I N THE SUPREME COURT O F THE S T A T E O F MONTANA

I N RE THE MARRIAGE O F

J E F F F E Y LAWRENCE BOLTON,

P e t i t i o n e r and R e s p o n d e n t ,

and

KATHLEEN E D I T H BOLTON,

R e s p o n d e n t and A p p e l l a n t .

A P P E A L FROM: T h e D i s t r i c t C o u r t of t h e E i g h t e e n t h J u d i c i a l D i s t r i c t ,
I n and f o r t h e C o u n t y of G a l l a t i n ,
T h e H o n o r a b l e T h o m a s O l s o n , Judge p r e s i d i n g .

COUNSEL O F RECORD:

For Appellant:

Scully, L i l l y & Andriolo; M i c h a e l J. L i l l y , Bozeman,
Montana

F o r Respondent:

W e l l c o m e & F r o s t ; A l b e r t A. Frost, Bozeman, Montana

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S u b m i t t e d on B r i e f s : May 31, 1984

Decided: August 30, 1984

Filed:

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Clerk
Mr. J u s t i c e L . C. Gulbrandson d e l i v e r e d t h e Opinion of the
Court.

K a t h l e e n B o l t o n a p p e a l s f r o m a n o r d e r of t h e D i s t r i c t

C o u r t g r a n t i n g a p e t i t i o n f o r m o d i f i c a t i o n of c u s t o d y of h e r
minor daughter. We affirm the decision of the District
Court.
The marriage of Kathleen E. Solton and Jeffrey L.

Bolton was dissolved by a decree issued by the Fourth
J u d i c i a l D i s t r i c t , C o u n t y o f M i s s o u l a , on O c t o b e r 3 0 , 1979.

C u s t o d y of the parties' minor child, J a i m e Brooke B o l t o n ,
was g r a n t e d t o t h e m o t h e r . The decree provided the father
r e a s o n a b l e v i s i t a t i o n w i t h t h e c h i l d , i n c l u d i n g o n e month i n
t h e summer and t h e C h r i s t m a s h o l i d a y s .
Following t h e d i s s o l u t i o n of t h e m a r r i a g e , t h e mother
and J a i m e moved t o S a n t a B a r b a r a , C a l i f o r n i a . On December
26, 1981, by a g r e e m e n t of the parties, J a i m e was s e n t t o
l i v e w i t h h e r f a t h e r i n M i s s o u l a , Montana f o r t h e b a l a n c e o f

her kindergarten school year. T h i s arrangement a r o s e due t o
an unexpected d e a t h i n t h e m o t h e r ' s f a m i l y i n Santa Barbara.
During t h e c h i l d ' s r e s i d e n c e w i t h t h e f a t h e r f r o m December

26, 1981 u n t i l J u l y 4 , 1982, Jaime a t t e n d e d kindergarten i n

Missoula. She also became acquainted with the father's
neighbor, Rose Reed, and with Mrs. Reed's two young

daughters. Mrs. Reed b a b y s a t f o r J a i m e when t h e f a t h e r ' s
work s c h e d u l e r e q u i r e d him t o be away. A s a g r e e d , J a i m e was

returned t o her mother i n Santa Barbara e a r l y i n J u l y of
1982.
On December 2 7 , 1 9 8 2 , J a i m e was a g a i n s e n t t o Montana
to l i v e with her father who had transferred t o Gallatin
Gateway, Montana. The parties agreed that Jaime could
complete the latter half of first grade at the Gallatin

Gateway Public School. According to the agreement Jaime

would be r e t u r n e d t o t h e m o t h e r ' s c u s t o d y a t t h e end o f the

1982-83 school year. During the time she attended first

g r a d e i n G a l l a t i n Gateway, J a i m e showed marked improvement

in both her social and academic development. She also

became q u i t e a t t a c h e d t o Mrs. Reed, a s w e l l a s c l o s e f r i e n d s

w i t h Mrs. Reed's daughters, a l l of whom by t h e n l i v e d w i t h

t h e f a t h e r i n G a l l a t i n Gateway. I n J u l y of 1983 t h e f a t h e r
m a r r i e d Rose Reed.

I n J u n e of 1983, t h e mother c o n t a c t e d t h e f a t h e r a b o u t

Jaime's return and the father indicated he would return

J a i m e a t t h e end o f t h e f i r s t w e e k o f J u l y , 1 9 8 3 .

On J u n e 23, 1983, t h e f a t h e r f i l e d a p e t i t i o n i n t h e

Eighteenth J u d i c i a l D i s t r i c t , G a l l a t i n County, Montana, to

modify t h e o r i g i n a l custody d e c r e e . Based on t h e p e t i t i o n ,

t h e D i s t r i c t Court granted t h e f a t h e r temporary custody of

the minor child. Custody was restored to the mother

f o l l o w i n g a show c a u s e h e a r i n g on A u g u s t 5 , 1 9 8 3 . Following

a hearing on the petition to modify the prior decree on

August 25, 1983, c u s t o d y was returned to the father. On

November 8 , 1983, t h e D i s t r i c t Court i s s u e d its f i n d i n g s of

f a c t , c o n c l u s i o n s o f l a w , and a n o r d e r g r a n t i n g t h e f a t h e r ' s

p e t i t i o n f o r m o d i f i c a t i o n of t h e c u s t o d y d e c r e e . The o r d e r

awarded permanent custody of Jaime to the father, with

l i b e r a l and r e a s o n a b l e r i g h t s of v i s i t a t i o n granted to the

mother.

The m o t h e r raises two i s s u e s i n h e r a p p e a l from t h e

D i s t r i c t Court o r d e r :

( 1 ) Did the District Court have subject matter
jurisdiction to hear the father's petition to modify the

prior custody decree?
(2) Did the District Court err in concluding that the
mother consented to the integration of the minor child into
the home of the father?
The mother's jurisdictional challenge is based upon
section 40-4-211, MCA, which is incorporated into the
Montana Uniform Child Custody Jurisdiction Act at section
40-7-104, MCA. The mother contends that under section
40-4-211, MCA the facts of this case required the District

Court to decline jurisdiction in favor of a California
forum. It is the father's position that section 40-4-211,
MCA is not controlling, but that jurisdiction was conferred
on the court under the common law doctrine of "continuing
jurisdiction" in custody cases.
In Wenz v. Schwartze (1979), 183 Mont. 166, 598 P.2d

1086, cert. denied 444 U.S. 1071, (1980), this Court defined
the scope of district court jurisdiction to modify a prior
custody decree with interstate implications. In
interpreting the Uniform Child Custody Jurisdiction Act,
section 40-7-101, MCA, et. seq., we stated, "The Act
establishes a two-tiered jurisdictional test which a court
must find satisfied before it makes even an initial custody
decree. .. " Wenz, supra at 178, 598 P.2d at 1093.
The first tier of the Wenz test mandates that one of
the four disjunctive requirements of section 40-4-211, MCA
be satisfied before a district court may take jurisdiction
to make a child custody determination. Wenz, supra at
178-79, 598 P.2d at 1093.
The second tier is found in section 40-7-108, MCA,
which grants the trial court discretionary authority to
"decline to exercise its jurisdiction" upon a determination
that it is an "inconvenient forum" and that a court of
another state is a "more appropriate forum." Further
jurisdictional requirements arise when a decree of another
state is already in force, which is not the case here. See
Wenz, supra at 180-86, 598 P.2d at 1094-97.

The father's reliance on the doctrine of "continuing
jurisdiction" as being the sole jurisdictional test in
interstate custody disputes is misplaced. Since the
enactment of the Uniform Marriage and Divorce Act in
Montana, the doctrine of continuing jurisdiction has been
linked to section 40-4-219, MCA. Foss v. Leifer (1976), 170
Mont. 97, 100, 550 P.2d 1309, 1311; Erhardt v. Erhardt
(1976), 171 Mont. 49, 50-51, 554 P.2d 758, 759. Section
40-4-219, MCA merely limits the authority of district courts
to modify prior custody decrees, unless the factual

threshold demanded by the statute is first established.
According to the Commissioners' Note, that statute is
"designed to maximize finality (and thus assure continuity
for the child) without jeopardizing the child's interest."
9A Uniform Laws Annotated 212 (master edition 1979)
(hereinafter ULA).
The function of section 40-4-211, MCA, on the other

hand, is to actually confer subject matter jurisdiction upon
a district court to hear custody matters with interstate
implications. As the Commissioners explicitly state,
section 40-4-211, MCA "governs jurisdiction to make an
initial decree as well as a modification decree." 9 ULA 125
(masters edition 1979). In those custody cases where a
state other than Montana has a possible interest, the

j u r i s d i c t i o n a l r e q u i r e m e n t s of s e c t i o n 40-4-211, MCA m u s t b e

met before a court may assert "continuing jurisdiction"

u n d e r s e c t i o n 40-4-219, MCA. T h i s p o s i t i o n is c o r r o b o r a t e d

by t h e C o m m i s s i o n e r s t Note t o s e c t i o n 40-4-211, MCA:

"The p r o v i s i o n s o f t h e [ U n i f o r m M a r r i a g e
amd D i v o r c e ] A c t c o n c e r n i n g c u s t o d y
adjudication are integrated with the
p r o v i s i o n s of t h e Uniform C h i l d Custody
J u r i s d i c t i o n Act . . . The l a t t e r A c t
deals with judicial jurisdiction to
a d j u d i c a t e a c u s t o d y c a s e when more t h a n
one s t a t e h a s an interest in the
litigation. The U n i f o r m M a r r i a g e a n d
D i v o r c e A c t g o v e r n s t h e s u b s t a n t i v e and
procedural aspects of custody
a d j u d i c a t i o n once t h e c o u r t has decided
t h a t i t c a n and s h o u l d h e a r t h e c a s e o n
t h e m e r i t s . " 9A ULA 1 9 4 ( m a s t e r e d i t i o n
1979 ) .
We find that section 40-4-211, MCA is the premier

jurisdictional hurdle which must be overcome before a

district court may modify a child custody decree with

interstate implications.

In the instant case, the two-tiered jurisdictional

test established in Wenz has been fully satisfied.

Jurisdiction was conferred on the District Court under

s e c t i o n s 40-4-211 and 40-7-108, MCA.

Of the several alternative bases for conferring

jurisdiction, subsection 40-4-211(1)(b) is the most

pertinent t o t h i s matter:

" ( 1 ) A c o u r t of t h i s s t a t e competent t o
decide child custody matters has
j u r i s d i c t i o n t o make a c h i l d c u s t o d y
d e t e r m i n a t i o n by i n i t a l o r m o d i f i c a t i o n
decree i f :

" ( b ) i t is i n t h e b e s t i n t e r e s t o f t h e
c h i l d t h a t a c o u r t o f t h i s s t a t e assume
j u r i s d i c t i o n because:
 "(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 parties agree that the father had a significant
connection with Montana. However, appellant argues that
Jaime lacked a significant connection with Montana due to

the fact that she had spent all of her time from the date of
her parents' divorce in October of 1979 through December of
1981 with her mother in California.
We note that section 40-4-211(1)(b), MCA does not

require that the child's only significant connection be with
Montana in order for a district court to assume
jurisdiction. The statute requires - significant
a
connection.
Here, the affidavit filed by the father provided the
district court with ample evidence that Jaime had a
significant connection with Montana. At the time the
petition was filed on June 23, 1983, Jaime had spent over
twelve months out of the previous eighteen with her father

in Montana. From December of 1981 through July 4, 1982,
Jaime resided with her father in Missoula and attended
kindergarten there. From December of 1982 to the time the
petition was filed, she resided with her father in Gallatin
Gateway, Montana and attended first grade there. The
father's affidavit indicates that Jaime had adjusted well to
her school in Gallatin Gateway, and that she had made
favorable progress both academically and socially.
Furthermore, the father's affidavit states that Jamie had
clearly expressed her desire to remain in school at Gallatin
Gateway, as well as her desire to remain with the father's
new family there. Jaime's preference in this regard was
conclusively established at the August 5, 1983 hearing on
the modification petition.
Similarly, there was before the court "substantial
evidence concerning the child's present or future care,
protection, training and personal relationships." The
record clearly indicated that during her visits to Montana
Jaime developed strong familial bonds to the father's
current family: Jaime's former babysitter and her two
daughters. Evidence of a majority of Jaime's educational
experience was located in Montana. Evidence of her
relationships with her peers largely existed in Montana.
Evidence of her care, treatment and home life in general for
twelve of the eighteen months preceding the filing of the
petition was available only in Montana.
The mother objects that there was no evidence of
Jaime's environment in California present in Montana. While
this is a fact that a trial court must carefully consider in
assuming jurisdiction, the statute requires only that
substantial evidence exist in the state taking jurisdiction.
The record clearly indicates that sufficient evidence
of Jaime's present and future care, protection, training and
personal relationships existed in Montana at the date of the
petition to satisfy the "substantial evidence" requirement
of section 40-4-211(1)(b), MCA.
The second jurisdictional test required by Wenz
demands that a court which has satisfied the prerequisites
of section 40-4-211, MCR, then determine whether
jurisdiction s h o u l d be e x e r c i s e d . S e c t i o n 40-7-108 states

part that:

" ( 1 ) A c o u r t which h a s j u r i s d i c t i o n under
t h i s c h a p t e r t o make a n i n i t i a l o r
m o d i f i c a t i o n d e c r e e may d e c l i n e t o
e x e r c i s e i t s j u r i s d i c t i o n any t i m e b e f o r e
making a d e c r e e i f i t f i n d s t h a t i t i s a n
i n c o n v e n i e n t f o r u m t o make 3 c u s t o d y
d e t e r m i n a t i o n under t h e c i r c u m s t a n c e s of
t h e c a s e and t h a t a c o u r t o f a n o t h e r
s t a t e i s a more a p p r o p r i a t e f o r u m . "

C r i t e r i a f o r d e t e r m i n i n g w h e t h e r a c o u r t would c o n s t i t u t e a n
i n c o n v e n i e n t forum is p r o v i d e d i n s u b s e c t i o n ( 3 ) o f s e c t i o n
40-7-108, MCA. However, the decision to decline

j u r i s d i c t i o n is e n t i r e l y w i t h i n t h e d i s c r e t i o n o f t h e t r i a l

court. Wenz, s u p r a a t 1 8 0 , 598 P.2d a t 1 0 9 4 .
We f i n d no a b u s e of the t r i a l court's discretion in

assuming j u r i s d i c t i o n t o h e a r t h i s c a s e .
The s e c o n d i s s u e i s w h e t h e r t h e D i s t r i c t C o u r t e r r e d
in ruling t h a t t h e mother consented t o t h e i n t e g r a t i o n of

the child into the home of the father. The controlling

s t a t u t e is s e c t i o n 40-4-219 (1) b ) , MCA:
(

" ( 1 ) The c o u r t may i n i t s d i s c r e t i o n
modify a p r i o r custody d e c r e e i f i t
f i n d s , upon t h e b a s i s o f f a c t s t h a t h a v e
arisen since the prior decree or t h a t
w e r e unknown t o t h e c o u r t a t t h e t i m e o f
e n t r y of t h e p r i o r d e c r e e , t h a t a c h a n g e
h a s o c c u r r e d i n t h e c i r c u m s t a n c e s of t h e
c h i l d o r h i s c u s t o d i a n and t h a t t h e
m o d i f i c a t i o n is n e c e s s a r y t o s e r v e t h e
b e s t i n t e r e s t o f t h e c h i l d and i f i t
further finds that:

" ( b ) The c h i l d h a s b e e n i n t e g r a t e d i n t o
t h e f a m i l y of t h e p e t i t i o n e r w i t h c o n s e n t
of t h e c u s t o d i a n . "
The m o t h e r argues t h a t the District Court e r r e d in
f a i l i n g t o f i n d a n e x p r e s s i n t e n t on h e r p a r t t o c o n s e n t t o
t h e i n t e g r a t i o n of t h e c h i l d i n t o t h e f a t h e r ' s family. We
disagree.
The rationale for the consent requirement in the
Uniform Act was to avoid non-custodial kidnapping. 9A ULA
212, Commissioners' Note (master edition 1979). We are
persuaded by the opinion of the Appellate Court of Illinois
in In Re Custody of Burnett (1979), 394 N.E.2d 58, 60, that:
"[Tlhe consent requirement [in the
Uniform Act] is intended to ensure that
the custodian acquiesced in the transfer
of physical custody (e.g. to discourage
non-custodial kidnapping), and the
integration into the family of the
petitioner, and should be viewed in that
narrow context. The consent requirement
is satisfied where as in this case the
custodian had placed the child with the
non-custodial parent and willingly
permitted the child to become integrated
in the new family."
The Burnett decision properly focuses on the elimination of
a motive for noncustodial kidnapping as the heart of the
consent requirement.
We find that where, as here, there is a voluntary
transfer of the child's physical custody from the custodial
to the non-custodial parent, which results in the child's
integration into the non-custodial parent's family, the
consent requirement of section 4Q-4-219(b) is satisfied.
Consent of the custodial parent to the child's integration
may be implied from the voluntary transfer of physical
custody.
While the mother contends that the record does not
support the court's conclusion regarding the consent
requirement, the standard of review employed by this Court
requires only that the findings and conclusions of the trial
court be supported by substantial credible evidence. In Re
Marriage of Pickering (Mont. 1984), 678 P.2d 1146, 41
 "This Court w i l l not s u b s t i t u t e its
judgment f o r t h a t of t h e t r i e r o f f a c t .
W e w i l l c o n s i d e r o n l y whether s u b s t a n t i a l
c r e d i b l e evidence supports t h e findings
and c o n c l u s i o n s . Findings w i l l n o t be
overturned unless there is a c l e a r
p r e p o n d e r a n c e o f e v i d e n c e a g a i n s t them,
r e c o g n i z i n g t h a t e v i d e n c e may b e weak o r
conflicting, yet still support the
findings." J e n s e n v. J e n s e n (Mont.
1 9 8 1 ) , 629 P.2d 7 6 5 , 7 6 8 , 3 8 S t . R e p . 9 2 7 ,
938.
The record contains substantial evidence of the
m o t h e r ' s a c q u i e s c e n c e t o b o t h o f J a i m e ' s t r a n s f e r s from h e r

home i n C a l i f o r n i a t o t h e f a t h e r ' s home i n Montana. On t h e

first occasion, the mother sent Jaime to live with her
f a t h e r i n Missoula s o t h a t Jaime could avoid t h e atmosphere

of g r i e f i n t h e m o t h e r ' s home f o l l o w i n g a n u n e x p e c t e d f a m i l y
death. J a i m e f i n i s h e d k i n d e r g r a r t e n i n M i s s o u l a and became

aquainted w i t h Rose Reed (Jaime's f u t u r e step-mother) and
h e r two young d a u g h t e r s . A f t e r a s i x month s t a y i n Montana,

Jaime returned to California, as agreed by the parties.
L e s s t h a n s i x months l a t e r , t h e mother a g a i n s e n t Jaime t o

Montana, interrupting her first grade year in school.
Again, t h e r e c o r d r e v e a l s t h a t t h e mother w i l l i n g l y conceded
to this transfer in custody. The m o t h e r knew J a i m e was
attending school i n Montana. S h e was a l s o aware of the
f a t h e r ' s new d o m e s t i c s i t u a t i o n and J a i m e ' s r e a c t i o n t o i t .

The D i s t r i c t Court found that Jaime was integrated

into the father's new f a m i l y a s a r e s u l t of the mother's
having s e n t Jaime t o Montana for the better part of the
formative period involving her first two years of formal
education. The court also found that under the
circumstances, the appellant should have known that the
child would become part of petitioner's family and home.
The findings of the District Court are silpported by

s u b s t a n t i a l c r e d i b l e evidence. The o r d e r of the District
H
C o u r t is a f f i r m e d . -/
,'
4.
/' ,

Justice ' ,
J

W e concur: /I