Marriage of Shupe, In re

• Decision Date: 04 June 1996
• Docket Number: No. 95-383,95-383
• Parties: In re the MARRIAGE OF Yancy W. SHUPE, Petitioner and Appellant, and Pamela J. SHUPE, Respondent and Respondent.
• Court: Montana Supreme Court

Page 744

916 P.2d 744

276 Mont. 409

In re the MARRIAGE OF Yancy W. SHUPE, Petitioner and Appellant and Pamela J. SHUPE, Respondent and Respondent.

No. 95-383.

Supreme Court of Montana.

Submitted on Briefs Jan. 18, 1996.

Decided May 10, 1996.

Rehearing Denied June 4, 1996.

Robert Eddleman, Columbus, for Appellant.

Jill Deann Miller, Billings, for Respondent.

GRAY, Justice.

Yancy W. Shupe (Yancy) appeals from the Findings of Fact, Conclusions of Law and Order of the Thirteenth Judicial District Court, Stillwater County, denying his petition for modification of custody. The court based the denial on its conclusions that it did not have subject matter jurisdiction to modify custody under the Parental Kidnapping Prevention Act, 28 U.S.C. § 1738A, and that Yancy failed to satisfy the statutory requirements for modification. We affirm.

The dispositive issues on appeal are:

1. Is Yancy's appeal properly before us?

2. Did the District Court err in concluding that it did not have subject matter jurisdiction to modify custody under the Parental Kidnapping Prevention Act?

Yancy and Pamela Shupe (Pamela) are the parents of a minor child, Megan Shupe (Megan). Before the events at issue in this case, the family resided in Utah. In October of 1993, Yancy moved to Nye, Montana, to work at the Stillwater Mine; Pamela and Megan remained in Utah. Yancy and Pamela's marriage was dissolved by a Utah district court on January 12, 1994. In the decree of dissolution, the court granted Pamela sole custody of Megan and awarded Yancy liberal visitation rights.

Pamela and Megan remained in Utah immediately following the dissolution of the parties' marriage. The record reflects that, between April of 1994 and January of 1995, Pamela and Megan went back and forth between Montana and Utah on numerous occasions. Yancy moved some of Pamela's belongings to Montana in July of 1994. The parties agree that Pamela and Megan lived with Yancy in Montana from January of 1995 until sometime in March of that year.

On March 9, 1995, Pamela and Megan were involved in a single-car accident while returning to Nye from Dean, Montana; neither Pamela nor Megan was injured. Pamela was cited for driving under the influence of alcohol (DUI) and pleaded not guilty. Pamela and Megan returned to Utah later that month and lived with Pamela's mother.

In April of 1995, Yancy moved the District Court for a temporary order changing Megan's custody to him. He also petitioned for modification of custody pursuant to § 40-4-219, MCA. The District Court concluded that it did not have subject matter jurisdiction to modify custody under the Parental Kidnapping Prevention Act (PKPA) and, further, that Yancy failed to satisfy the statutory requirements for modification of custody. Yancy appeals. Additional facts are set forth below where necessary to our resolution of the issues.

1. Is Yancy's appeal properly before us?

Pamela contends that the District Court's order merely denied Yancy's motion for temporary custody and that such an order is not appealable under Rule 1, M.R.App.P. While we agree with Pamela that Rule 1, M.R.App.P., does not authorize an appeal from an order denying a motion for temporary change of custody, we disagree that the District Court's May 30, 1995, order was a mere denial of such a motion.

Yancy filed a motion for a temporary order changing custody and a petition for modification of custody under § 40-4-219, MCA, on the same date. The District Court held a hearing on May 14, 1995. The record reflects that, at the beginning of the hearing, the parties and the court were confused as to whether the hearing was limited to Yancy's motion for temporary custody or whether his petition for modification also was being heard. The District Court first indicated that only Yancy's motion for temporary custody was before it, then indicated that it also would hear Yancy's petition for modification of custody and, finally, indicated again that only the motion for temporary custody was being heard.

The District Court's findings of fact, conclusions of law and order state at the outset, and without further clarification, that "[t]his matter" was heard on May 14, 1995. The court's findings and conclusions address both jurisdiction and custody modification. Regarding the latter, the court concluded that Yancy had not met the requirements of § 40-4-219, MCA, and denied Yancy's "petition."

On the basis of the record before us, we cannot conclude that the District Court's order was limited to denying Yancy's motion for a temporary change of custody. We conclude that the order at issue substantively denied Yancy's § 40-4-219, MCA, petition for modification of custody on the bases of lack of subject matter jurisdiction and failure to satisfy the statutory requirements for custody modification. As a result, we hold that the District Court's order is appealable under Rule 1, M.R.App.P., and that Yancy's appeal is properly before us.

2. Did the District Court err in concluding that it did not have subject matter jurisdiction to modify custody under the PKPA?

A. APPLICABILITY OF THE PKPA

All fifty states have adopted the Uniform Child Custody Jurisdiction Act (UCCJA) in some form to address interstate custody disputes. See Meade v. Meade (4th Cir.1987), 812 F.2d 1473, 1475. However, the UCCJA was found to be inadequate in addressing the problems of forum shopping and "child snatching" because it operated at the state level. Erler v. Erler (1993), 261 Mont. 65, 69 862 P.2d 12, 15. Moreover, as the Utah Court of Appeals observed in Curtis v. Curtis (Utah.Ct.App.1990), 789 P.2d 717, 721 n. 9, the UCCJA creates the possibility of several states having concurrent jurisdiction over child custody determinations.

Congress enacted the PKPA in 1980 to establish national standards under which the courts of various states could determine whether they had jurisdiction in a child custody proceeding and what effect to give custody determinations by courts of other jurisdictions. Erler, 862 P.2d at 15. Under the PKPA, full faith and credit ordinarily must be given to a custody determination made by a court of another state if that court appropriately exercised jurisdiction under PKPA standards. See 28 U.S.C. § 1738A(a); Erler, 862 P.2d at 15.

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. Erler, 862 P.2d at 15 (citation omitted). In this regard, the PKPA prevents the issuance of competing decrees of sister states. Erler, 862 P.2d at 16 (citing Nielsen v. Nielsen (La.App.1985), 472 So.2d 133, 136). Thus, the PKPA sets forth standards for determining the one state with jurisdiction to modify an existing custody order. See 28 U.S.C. §§ 1738A(d) and (f); Curtis, 789 P.2d at 721.

The purposes of the PKPA are achieved through both 28 U.S.C. §§ 1738A(d) and (f). 28 U.S.C. § 1738A(d) provides for continuing jurisdiction in the state in which the original child custody determination was made so long as certain enumerated requirements are satisfied (see Erler, 862 P.2d at 15), while 28 U.S.C. § 1738A(f) allows a court of a different state to modify a custody determination only when it has jurisdiction to make such a determination under its own laws and the court which made the original custody determination no longer has jurisdiction or has declined to exercise such jurisdiction (see Meade, 812 F.2d at 1476-77). Thus, Congress' enactment of 28 U.S.C. §§ 1738A(d) and (f) remedied the problem of possible concurrent jurisdiction present in the UCCJA. Accordingly, where the PKPA applies, necessary jurisdictional determinations must be made thereunder.

Yancy argues that, pursuant to Erler, the PKPA does not apply to his petition for modification of custody. His reliance on Erler, however, is misplaced.

In Erler, the parties' marriage was dissolved by a Montana district court in Missoula County and the mother was granted sole custody of the parties' minor children. The mother and children subsequently moved to Seattle, Washington and, thereafter, the father moved to modify custody in the district court in Missoula County. Erler, 862 P.2d at 13. On appeal, we affirmed the district court's determination that it did not have subject matter jurisdiction under the PKPA, concluding that the PKPA did not apply because Montana was the only state involved in the custody dispute. Erler, 862 P.2d at 16.

Here, Yancy petitioned a Montana court for modification of the Utah court's child custody determination regarding Megan. Thus, unlike in Erler, two states are involved in this custody dispute. The PKPA was enacted by Congress to address such a situation and to prevent the issuance of conflicting and competing custody decrees in sister states. Erler, 862 P.2d at 16. We conclude, therefore, that the PKPA is applicable here. Accordingly, we turn to the issue of whether the District Court erred in concluding that it did not have subject matter jurisdiction to modify custody under the PKPA.

B. SUBJECT MATTER JURISDICTION UNDER THE PKPA

The PKPA generally requires the courts of a state to enforce--and decline to modify--child custody determinations made by the courts of other states. 28 U.S.C. § 1738A(a). A specific exception to the general rule authorizes a court to modify a child custody determination made by a court in another state when two requirements are satisfied: (1) the court has jurisdiction to make a child custody determination; and (2) the court of the other state no longer has jurisdiction or has declined to exercise jurisdiction. 28 U.S.C. § 1738A(f).

(1) Analysis of Montana Jurisdiction

Under the first requirement of 28 U.S.C. § 1738A(f), a Montana district court must have jurisdiction to make the child custody determination pursuant to Montana law. See 28 U.S.C. § 1738A(f)(1). Since the custody dispute in this case has interstate...