Marriage of Alpert Hammerline ( 1993 )

No. 92-397
IN THE SUPREME COURT OF THE STATE OF MONTANA
1993
IN RE THE MARRIAGE OF
KENNETH J. ALPERT,
Petitioner and Appellant,
and
TERRI A. ALPERT, n/k/a
TERRI A. HAMELINE,
Respondent and Respondent.
APPEAL FROM: District Court of the Fourth Judicial District,
In and for the County of Ravalli,
The Honorable Jack L. Green, Judge presiding.
COUNSEL OF RECORD:
For Appellant:
Judith A. Loring, Attorney at Law,
Stevensville, Montana
For Respondent:
Lori Ballinger, Attorney at Law,
Missoula, Montana
Submitted on Briefs: December 3, 1992
Decided: May 1 8 , 1 9 9 3
Filed:
Justice Terry N. Trieweiler delivered the opinion of the Court.
Appellant Kenneth J. Alpert appeals from an order of the
Fourth Judicial District Court, Ravalli County, entered on July 24,
1992, which modifiedthe parties' original divorce decree in regard
to visitation rights and denied an award of attorney fees. We
reverse.
The dispositive issue on appeal is whether the District Court
had jurisdiction under the Uniform Child Custody Jurisdiction Act
to hear and determine respondent Terri Hameline's motion for
visitation rights.
Kenneth and Terri's ten-year marriage was dissolved by order
of the Fourth Judicial District Court on January 17, 1990. At the
time of the dissolution, the parties lived in Ravalli County and
had two minor children--Seth, who was nine years old, and Hannah,
who was seven years old. The divorce decree incorporated a
separation agreement which gave sole custody of the children to
Kenneth and reasonable visitation rights to Terri. In lieu of
defining actual times and periods of visitation in the agreement,
the parties agreed to mutually resolve these details.
In December 1990, Kenneth and the children moved from Montana
to the state of Texas. Although Kenneth did not file a written
notice with the court of his intent to leave Montana, he gave Terri
more than 30 days oral notice prior to moving. The adequacy of
that notice is not an issue on appeal. Since that time, the
children have had no significant contacts with Montana. They have
attended school in Texas, have seen medical and day care providers
in that state, and all significant information concerning the
children's care, well-being, and personal relationships is found in
Texas.
Terri filed a motion with the District Court on May 26, 1992,
in which she requested the court to specify her summer visitation
rights because she alleged that Kenneth was unreasonably
restricting her opportunities to visit the children. Kenneth
objected on the grounds that the Montana court lacked jurisdiction
and that the visitation which was requested by Terri was not in the
children's best interests. He also requested an award of attorney
fees.
The court issued its Findings, Conclusions, and Order on
July 24, 1992. Since the children were no longer residents of
Montana and had no significant contacts here since moving to Texas,
the court determined that it should not accept further or
continuing jurisdiction over any issues concerning the children
with the exception of visitation rights. In regard to the
visitation issue, the court concluded that it would be in the best
interests of the children to specifically define Terrilsvisitation
rights. Consequently, Terri was awarded visitation for a period of
28 days during the summer of 1992 and 45 days each summer
thereafter. Terri was ordered to pay all costs incurred in
bringing the children to Montana, and Kenneth was ordered to cover
the costs of returning the children to Texas. Neither party was
awarded attorney fees. On appeal, Kenneth contends that the court
was without jurisdiction to render this order and that he was
entitled to an award of attorney fees under the terms of the
couple's separation agreement.
Kenneth's jurisdictional challenge is based on Montana's
version of the Uniform Child Custody Jurisdiction Act (UCCJA),
found at 5 5 40-7-101 through -125, MCA. The stated purpose of the
UCCJA is to avoid the jurisdictional conflicts that arise in the
enforcement and modification of custody decrees, and to assure that
any litigation involving minor children occurs in the state where
the child has the closest connection and where significant evidence
concerning the child's care, protection, training, and personal
relationships is most readily available. Section 40-7-102, MCA.
Under 5 40-7-103(2), MCA, visitation rights are specifically
included in the definition of matters encompassed by a custody
proceeding.
Kenneth contends that under the UCCJA the District Court was
required to decline jurisdiction in favor of a Texas forum because
the court's visitation order amounted to a modification of the
original custody decree, and therefore, was a custody proceeding.
Terri, however, counters that the court merely clarified her
visitation rights and this was not a modification of the original
decree. Therefore, Terri claims that the provisions of the UCCJA
did not bar the court from ruling on her motion.
We disagree with the position set forth by Terri and hold
that, under the UCCJA, the court did not have subject matter
jurisdiction to enter its visitation order.
The District Court correctly concluded that "it should not
accept further or continuing jurisdiction over any issues
concerning the children." The relevant statute which dictates this
conclusion is 6 40-7-104, MCA, which sets forth the UCCJAts
jurisdictional requirements by incorporating the provisions of
§ 40-4-211, MCA. Before assuming jurisdiction in a custody
proceeding which, by statute, includes matters dealing with
visitation rights, a district court must first determine that one
of the four disjunctive requirements of § 40-4-211(1), MCA, is
satisfied. In reMam'age o Larlce (l984), 213 Mont. 182, 690 P.2d 979.
f
In this instance, none of these jurisdictional requirements are
met.
In InreMam'ageofHarper (1988), 235 Mont. 41, 46, 764 P.2d 1283,
1286, we held that "the distinction between modification and
enforcement of custody" for purposes of applying the UCCJA is
"superficial" and that "[plreserving such a distinction would
defeat the purposes set out in 5 40-7-102, MCA." We conclude that
to distinguish between a wmodificationu and "clarification" under
the facts in this case would be equally superficial. In this case,
the court's order altered the rights of the parties beyond that
originally contemplated when the visitation provisions were left
unspecified, and thus, modified those rights.
5
We are not holding that Terri's visitation rights should be
left unspecified or that her allegations of interference by Kenneth
should not be addressed. It is not uncommon in situations like
this, when one or both parties relocate, that custody or visitation
provisions need to be clearly defined or modified. See, e.g., In re
MarhgeofBolton (1984), 212 Mont. 212, 690 P.2d 401; h r e M a ~ a g e o f
Sandemon (l98l), 191 Mont. 316, 623 P.2d 1388. But it must be a
court of competent jurisdiction to enter a judgment which alters
the rights of the parties or imposes specific duties and
obligations. In this instance, that court is not in Montana.
Kenneth also contends that, in accordance with the parties1
1990 separation agreement, he is entitled to an award of attorney
fees and costs if the court's order is vacated. The pertinent
provision of the agreement, which was approved by the court,
provides as follows:
Should any action be commenced to enforce, modify, or
interpret any provisions contained herein, the Court, as
a cost of suit, shall award a reasonable attorney's fee
to the successful p a r t y .
Although we have determined that there was no subject matter
jurisdiction to hear Terri's motion for visitation, we note that
the court does have personal jurisdiction over the parties by
virtue of their appearances in this proceeding. Therefore, in
light of our holding, we remand this case for a determination by
the District Court of whether the above-mentioned provision of the
separation agreement contemplated an award of attorney fees in the
situation presented here.
The order of the District Court is vacated and this case
remanded for a determination on the issue of attorney fees.
We concur: