Vannatta v. Boulds

No. 03-231

IN THE SUPREME COURT OF THE STATE OF MONTANA

2003 MT 343

TREVOR VANNATTA,

Petitioner and Respondent,

BARRIE L. BOULDS, f/k/a
BARRIE L. VANNATTA,

Respondent and Appellant.

APPEAL FROM: District Court of the Fifteenth Judicial District,
In and For the County of Roosevelt, Cause No. DR 2002-29,
Honorable David J. Cybulski, Presiding Judge

COUNSEL OF RECORD:

For Appellant:

Fred J. Hofman, Hofman Law Office, Wolf Point, Montana

Jeff Nehring, Attorney at Law, Williston, North Dakota

For Respondent:

Janet Christoffersen, Crowley, Haughey, Hanson, Toole & Dietrich,
P.L.L.P., Williston, North Dakota

Submitted on Briefs: October 9, 2003

Decided: December 15, 2003

Filed:

__________________________________________
Clerk
Justice W. William Leaphart delivered the Opinion of the Court.

¶1 Barrie L. Boulds (Boulds) appeals the District Court’s order amending a custody

decree and naming Trevor Vannatta (Vannatta) as their minor child’s primary residential

caregiver. We reverse.

¶2 The issue on appeal is whether, under the Uniform Child Custody Jurisdiction and

Enforcement Act and the Parental Kidnapping and Prevention Act, the Montana District

Court lacked subject matter jurisdiction to modify the original custody decree from the State

of North Dakota?

Factual and Procedural Background

¶3 Boulds and Vannatta were married in May of 1997. Their one child (Sydney) was

born in October of 1996 in North Dakota. Their marriage was dissolved in North Dakota in

April of 2000. The County of Williams District Court in North Dakota entered a divorce

judgment which granted Boulds residential custody of Sydney and reserved liberal visitation

rights for Vannatta. Vannatta currently resides and works in North Dakota. He has

remarried. Boulds moved to Montana in 2002 and was residing in Montana when this action

commenced. During this same period, Sydney began her summer visitation with Vannatta

in North Dakota. In August of 2002, Sydney went back to Montana with Boulds.

Approximately one week later, because of scheduling conflicts Boulds was experiencing,

Sydney moved back to North Dakota to live with Vannatta.

¶4 The current case arises because on December 16, 2002, Vannatta filed a petition in

Roosevelt County, Montana, to modify the custody decree. Boulds had notified Vannatta

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that she planned to resume her residential custody of Sydney, possibly in Montana. In

January of 2003, Boulds moved to dismiss the action in the Montana court based on lack of

jurisdiction. At the time this action began, Boulds was working in Montana and planned on

attending college, either in Montana or North Dakota. Sydney has lived with both Boulds

and Vannatta. When Vannatta filed the petition seeking custody, Sydney was living with

him in North Dakota. Sydney was covered by Vannatta’s health insurance. She also

attended school, church, gymnastics, and Sunday school in North Dakota.

¶5 The Montana District Court considered the Uniform Child Custody Jurisdiction and

Enforcement Act (UCCJEA) and the Parental Kidnapping and Prevention Act (PKPA). The

court concluded, over Boulds’s objection, that it had jurisdiction even though the original

dissolution occurred in North Dakota because Boulds had been a Montana resident since

April 2002 and Vannatta, the parent remaining in North Dakota, consented to the action in

the Montana court and waived his protection under both acts. The court then granted

Vannatta primary custody based on a substantial change in circumstances since the original

custody order was entered, including the integration of Sydney into Vannatta’s family with

Boulds’s consent, and because it was in Sydney’s best interests. The court terminated

Vannatta’s obligation to make child support payments and ordered Boulds to reimburse

Vannatta for past support payments beginning in August 2002. Boulds appeals the District

Court’s order modifying the North Dakota custody agreement.

Discussion

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¶6 Issue: Whether the Montana District Court lacked subject matter jurisdiction under

the UCCJEA and the PKPA to modify the original custody decree from the State of North

Dakota?

¶7 We review a district court’s findings of fact to determine if the findings are clearly

erroneous. In re Marriage of Brownwell (1993), 263 Mont. 78, 81, 865 P.2d 307, 309. We

review a district court’s conclusions of law to determine whether the court’s interpretation

of the law is correct. In re Marriage of Kovash (1995), 270 Mont. 517, 521, 893 P.2d 860,

863.

¶8 Montana adopted a form of the Uniform Child Custody Jurisdiction Act (UCCJA) to

address interstate custody disputes. In re Marriage of Shupe (1996), 276 Mont. 409, 413,

916 P.2d 744, 746. Because the UCCJA inadequately remedied the problems of forum-

shopping and child snatching, Congress enacted the PKPA in 1980 to establish national

standards for state courts to determine whether they have jurisdiction in child custody

proceedings and to determine what effect to give custody determinations from other states.

Shupe, 276 Mont. at 413, 916 P.2d at 747. “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.” Shupe, 276 Mont. at 414, 916 P.2d

at 747.

¶9 Full faith and credit ordinarily must be given to child custody determinations made

by another state’s court if that court appropriately exercised jurisdiction under PKPA

standards. Shupe, 276 Mont. at 414, 916 P.2d at 747; 28 U.S.C. § 1738A(a). The United

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States Supreme Court has stated that “[o]nce a State exercises jurisdiction consistently with

the provisions of the [Parental Kidnapping Prevention] Act, no other State may exercise

concurrent jurisdiction over the custody dispute, § 1738A(g), even if it would have been

empowered to take jurisdiction in the first instance, and all States must accord full faith and

credit to the first State’s ensuing custody decree.” Thompson v. Thompson (1988), 484 U.S.

174, 177, 108 S.Ct. 513, 515, 98 L.Ed.2d 512, 518-19. We have similarly stated that the

PKPA normally requires courts to decline to modify child custody determinations issued by

another state. Shupe, 276 Mont. at 415, 916 P.2d at 747.

¶10 In 1999, the Montana Legislature adopted the Uniform Child Custody Jurisdiction and

Enforcement Act (UCCJEA) which repealed and replaced the UCCJA provisions in Montana

law. Stoneman v. Drollinger, 2003 MT 25, ¶ 14, 314 Mont. 139, ¶ 14, 64 P.3d 997, ¶ 14.

The purpose of the UCCJEA, which was approved by the National Conference of

Commissioners on Uniform State Laws in 1997, was “[t]o harmonize state child custody

jurisdictional provisions with the PKPA and to eliminate inconsistent state court interpreta-

tions of jurisdictional issues . . . .” Stoneman, ¶ 14.

¶11 Pursuant to the UCCJEA, § 40-7-203, MCA, provides as follows:

a court of this state may not modify a child custody determination made by a
court of another state unless a court of this state has jurisdiction to make an
initial determination under 40-7-201(1)(a) or (1)(b) and:
(1) the court of the other state determines it no longer has exclusive,
continuing jurisdiction under 40-7-202 or that a court of this state would be a
more convenient forum under 40-7-108; or
(2) a court of this state or a court of the other state determines that the
child, the child’s parents, and any person acting as a parent do not presently
reside in the other state.

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The state seeking to modify the original state’s custody decree is not authorized to determine

that the original state has lost its jurisdiction unless the child, the child’s parents, and any

person acting as a parent no longer reside in the original decree state. Commissioners’ Note,

§ 40-7-203, MCA.

¶12 In the present case, it is undisputed that North Dakota properly exercised jurisdiction

when the original custody decree was issued. Therefore, our analysis will focus on whether

Montana, subsequent to the original decree, obtained jurisdiction. Boulds and Vannatta were

divorced in North Dakota and the County of Williams District Court properly exercised

jurisdiction and entered a divorce decree and custody decree. Pursuant to the custody decree,

Boulds was granted primary custody of Sydney.

¶13 Until otherwise determined, North Dakota has continuing jurisdiction and the

Montana court must give full faith and credit to North Dakota’s decree. Thompson, 484 U.S.

at 177, 108 S.Ct. at 515, 98 L.Ed.2d at 518. The Montana court may only exercise

jurisdiction under certain circumstances and otherwise must decline to modify the North

Dakota decree. Shupe, 276 Mont. at 415, 916 P.2d at 747. First, Montana must have

jurisdiction to make such a child custody determination. Section 40-7-203, MCA. Second,

the North Dakota court must determine it no longer has exclusive, continuing jurisdiction or

that a Montana court would be a more convenient forum, pursuant to § 40-7-108, MCA.

Section 40-7-203(1), MCA. In the alternative, the second requirement may be satisfied if

either the Montana court or the North Dakota court determine that Sydney, her parents, and

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any person acting as her parent no longer reside in North Dakota. Section 40-7-203(2),

MCA. We will address the second requirement first because it is dispositive of this case.

¶14 The record does not reflect that the County of Williams District Court in North

Dakota determined that it no longer has exclusive, continuing jurisdiction. The record also

does not reflect that the North Dakota court determined that a Montana court would be a

more convenient forum. In the absence of such determinations by the North Dakota court,

the Montana court did not gain jurisdiction to modify the North Dakota decree. Section 40-

7-203(1), MCA.

¶15 North Dakota could also lose jurisdiction if neither Sydney, her parents, nor any

person acting as a parent presently reside in North Dakota. Section 40-7-203(2), MCA.

Here, even though Boulds lives in Montana, North Dakota retains jurisdiction because

Vannatta is a North Dakota resident. Section 40-7-203(2), MCA.

¶16 Vannatta is still a resident of North Dakota where the custody decree was entered.

Sydney is also a North Dakota resident, attending school, church, and participating in

recreational activities like gymnastics. Boulds’s move to Montana does not defeat North

Dakota jurisdiction. Section 40-7-203(2), MCA. The fact that Vannatta chose to file his

petition in Montana is insufficient to confer jurisdiction in the Montana District Court to

modify a custody determination made by a court of another state. Jurisdiction cannot be

conferred by consent of the parties. In re Marriage of Miller (1993), 259 Mont. 424, 427,

856 P.2d 1378, 1380. Jurisdiction is defined by the law; in this instance, by reference to the

provisions of § 40-7-203, MCA. Section 40-7-203, MCA, only grants a Montana court

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jurisdiction to modify an out-of-state custody decree if: (1) the other state determines it no

longer has exclusive, continuing jurisdiction or that a Montana court would be a more

convenient forum; or (2) a court of this state or a court of the other state determines none of

the interested parties presently reside in the other state. Since neither of these circumstances

pertain, the Montana court had no jurisdiction to entertain the petition to modify.

¶17 Accordingly, we conclude that the District Court’s application of the law was

incorrect. We reverse.

/S/ W. WILLIAM LEAPHART

We concur:

/S/ KARLA M. GRAY
/S/ JOHN WARNER
/S/ JAMES C. NELSON
/S/ PATRICIA COTTER