Marriage of Whetham ( 1995 )

NO. 95-001
IN THE SUPREMECOURT OF THE STATE OF MONTANA
1995
IN RE THE MARRIAGE OF
KIMMA FLAMMONDWHETHAM,
Petitioner and Appellant,
and
JAMES LEROY WHETHAM,
Respondent
APPEAL FROM: District Court of the Ninth Judicial District,
In and for the County of Pondera,
The Honorable John M. McCarvel, Judge presiding.
COUNSEL OF RECORD:
For Appellant:
Thane Johnson; Werner, Epstein & Johnson,
Cut Bank, Montana
For Respondent:
Joan E. Cook, Attorney at Law, Great Falls,
Montana
Submitted on Briefs: April 27, 1995
Decided: May 25, 1995
Filed:
Justice W. William Leaphart delivered the Opinion of the Court.
Kimma Flammond Whetham (Kimma) appeals from the findings of
fact, conclusions of law and order of the Ninth Judicial District
Court, Pondera County, which modified Kimma's prior child custody
arrangement with her former husband James Leroy Whetham (James).
We affirm.
Kimma presents three issues for review which we restate as
follows:
1. Did the District Court err in concluding that it had
jurisdiction to determine the custody issue?
2. Did the District Court err in concluding it had
jurisdiction before entering findings of fact on the issue?
3. Did the District Court err in modifying custody?
Backsround
One child, Jamie, was born to Kimma and James on August 3,
1986. On October 10, 1989, Kimma and James' common law marriage
was dissolved. The decree of dissolution provided for joint
custody of Jamie with Kimma designated as the primary custodian.
Prior to entry of the decree, Kimma moved to Oregon with Jamie.
In mid-January of 1994, Kimma left Jamie and Kimma's other
daughter from a previous marriage with friends in Washington state
because she was forced to leave her housing. Kimma remained in
Oregon. Jamie lived with Kimma's friends in Washington state until
June of 1994. In June, Jamie went to Montana for her summer
visitation with James.
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On February 14, 1994, James petitioned the District Court to
modify the custody arrangement. On August 24, 1994, the court held
a hearing and on September 6, 1994, the court entered its findings
of fact, conclusions of law and order. The court concluded that it
had jurisdiction over the matter and ordered that the parties would
have joint custody, but that James would be the primary custodian.
On September 28, 1994, Kimma filed a motion to alter or amend
the judgment but the court took no action on the motion within 45
days, and it was deemed denied. Kimma appeals.
Issue 1
Did the District Court err in concluding that it had
jurisdiction to determine the custody issue?
The District Court concluded that it had jurisdiction to
modify custody based on § 40-4-211, MCA. We review conclusions of
law, such as jurisdictional conclusions, to determine whether the
court's interpretation of the law was correct. In re Marriage of
Barnard (1994), 264 Mont. 103, 106, 870 P.2d 91, 93.
Section 40-4-211(l), MCA, lists the situations in which
Montana courts may assume jurisdiction over child custody matters.
There are four separate circumstances under which the court may
assume jurisdiction, any one of which is sufficient. The District
Court concluded, and we agree, that 5 40-4-211(l) (b), MCA, was
sufficient to confer jurisdiction in this case. That section
states:
(1) A court of this state competent to decide child
custody matters has jurisdiction to make a child custody
determination by initial or modification decree if:
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ibj it'is i n the best interest of the child that a court
of this state assume jurisdiction 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 . . .
Section 40-4-211(l) (b), MCA.
Here, there is no dispute that James has significant
connection to this state. We hold that Jamie has a significant
connection to Montana because she was born and lived in Montana for
the first few years of her life, she has had summer visitation in
Montana, and both of her parents have close relatives living in
Montana. Additionally, Jamie's father or mother's relatives can
provide substantial evidence regarding Jamie's care. There is also
substantial evidence in Montana as to her protection, schooling and
relationships with other family members.
Kimma argues that Oregon is Jamie's home state and that the
District Court did not sufficiently consider that Oregon may have
jurisdiction over this matter. Kimma contends that In re Marriage
of Miller (1993), 259 Mont. 424, 856 P.2d 1378, demonstrates that
a district court must first consider whether another state is the
child's home state before determining jurisdiction. We disagree.
In Marriage of Miller, this Court determined that Pennsylvania was
the child's home state as a necessary step in determining whether
the Montana court had jurisdiction pursuant to § 40-4-211(l) (d),
MCA. Marriase of Miller, 856 P.2d at 1381. This analysis was
necessary as we determined that none of the other subsections of s
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40-4-211(l), MCA, conferred jurisdiction upon the district court.
However in this case, the District Court had jurisdiction pursuant
to 5 40-4-211(1)(b), MCA, thus a home state analysis was
unnecessary.
Finally, once jurisdiction is established under § 40-4-211,
MCA, the court may still decline jurisdiction if it finds that it
is an inconvenient forum. Section 40-7-108(l), MCA. Here, given
the parties' significant connections to Montana, it cannot be said
that the District Court erred in failing to find that Montana was
an inconvenient forum. We hold that the District Court did not err
in concluding that it had jurisdiction to modify custody.
Issue 2
Did the District Court err in concluding it had jurisdiction
before entering findings of fact on the issue?
After the court questioned both parties, and before the
attorneys questioned the parties, Kimma's counsel requested a
ruling on jurisdiction. In response, Judge McCarvel stated that
the court had jurisdiction. Several days after the hearing, the
District Court entered its written findings of fact and conclusions
of law. Kimma contends that the judge's oral statement before
issuing findings of fact is contrary to the commands of Rule 52(a),
M.R.Civ.P., and this Court's ruling in Marry v. Missoula County
Sheriff's Dept. (1993), 263 Mont. 152, 866 P.2d 1129.
Rule 52(a), M.R.Civ.P., requires the court to specially find
the facts and separately state its conclusions based on the
findings. In Marrv, the plaintiff brought a personal injury action
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following an auto accident. Th,e trial court initially found that
the parties were equally at fault and made a conclusion that
because the parties were equally at fault, the plaintiff could not
recover. The plaintiff moved the court to amend its findings and
conclusions on the basis that, under Montana law, if the parties
were equally at fault, she could recover 50% of her damages. The
court amended its findings, but stated it was the court's intention
to deny the plaintiff any recovery. Thus the court amended its
findings to read that the plaintiff was more at fault than the
other driver. Marrv, 866 P.2d at 1130-31. This Court reversed
stating that it was apparent that the court did not review the
record before amending its findings in violation of Rule 52(b),
M.R.Civ.P., and that the trial court effectively made its legal
conclusion before making supporting findings in violation of Rule
52 (a), M.R.Civ.P. Marry, 866 P.2d at 1131.
The present case is distinguishable. The District Court
questioned the parties before counsel requested a ruling on
jurisdiction. In response to the request, the judge made an oral
ruling. The court also made written findings before making written
conclusions which were supported by the findings. There is no
indication, as there was in Marry, that the court skewed its
findings to arrive at a desired conclusion. We hold that the
District Court did not err in making its findings of fact and
conclusions of law.
Issue 3
Did the District Court err in modifying custody?
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We have stated that we will overturn a court ' s custody
decision only when the court's findings and conclusions clearly
demonstrate an abuse of discretion. In re Marriage of Hunt (1994),
264 Mont. 159, 164, 870 P.2d 720, 723. We hold that the court did
not abuse its discretion.
Section 40-4-219(l), MCA, provides in relevant part:
The court may in its discretion modify a prior custody
decree if it finds, upon the basis of facts that have
arisen since the prior decree or that were unknown to the
court at the time of entry of the prior decree, that a
change has occurred in the circumstances of the child or
his custodian and that the modification is necessary to
serve the best interest of the child and if it further
finds that:
. . .
(c) the child's present environment endangers seriously
his physical, mental, moral, or emotional health and the
harm likely to be caused by a change of environment is
outweighed by its advantages to him . . .
Here, the District Court concluded that § 40-4-219(l) (c), MCA,
permitted the modification of custody in this case. We agree.
Kimma left Jamie in the care of friends in the state of
Washington for approximately five months. Kimma testified that she
did so because she did not have adequate housing for Jamie. Jamie
testified that her mother did not visit her very often during this
time period. Jamie was removed from her school in Oregon and
registered in a Washington school. When James picked up Jamie for
summer visitation, he discovered that Jamie was suffering from head
lice. Jamie testified that she wanted to live with her father and
that she had met friends in Montana
The record supports the District Court's conclusion that the
modification in custody was in Jamie's best interests and that the
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requisites of 5 40-4-219(l) cc), MCA, were met in the present case.
We hold that the District Court did not err in modifying the prior
custody arrangement.
Affirmed.
Pursuant to Section I, Paragraph 3(c), Montana Supreme Court
1988 Internal Operating Rules, this decision shall not be cited as
precedent and shall be published by its filing as a public document
with the Clerk of the Supreme Court and by a report of its result
to Montana Law Week, State Reporter and West Publishing Company.
We concur:
Chief Justice
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