Pierce v. Pierce
| Decision Date | 11 February 1982 |
| Docket Number | No. 81-445,81-445 |
| Citation | 640 P.2d 899,197 Mont. 16 |
| Parties | Elizabeth Scott PIERCE, Petitioner and Respondent, v. Bruce Carroll PIERCE, Respondent and Appellant. |
| Court | Montana Supreme Court |
Datsopoulos, MacDonald & Lind, Missoula, for respondent and appellant.
Milodragovich, Dale & Dye, Missoula, for petitioner and respondent.
On September 7, 1979, the Circuit Court of Franklin County, Kentucky, decreed that the marriage of Bruce Carroll Pierce and Elizabeth Scott Pierce be dissolved and that Elizabeth Pierce be given custody of the parties' six year old son, Jeremy. This appeal results from a decision by the Missoula County District Court that under federal and state law it lacked jurisdiction to modify that child custody determination.
Bruce and Elizabeth Pierce were married on March 21, 1972, in Franklin County, Kentucky. On July 23, 1979, they entered into a separation and property settlement agreement whereby Elizabeth was given custody of Jeremy, and Bruce was given liberal visitation rights. That agreement was subsequently approved and adopted by the Franklin Circuit Court in its September 7, 1979, dissolution decree.
In August, 1979, with Elizabeth's consent, Bruce brought Jeremy to Montana. As of the date of this appeal the parties disagreed as to the nature and duration of Jeremy's visit to Montana. In the pleadings Bruce alleged that Elizabeth agreed to let Jeremy visit for an indefinite period, and Elizabeth alleged that before Jeremy left, they had agreed to a specific date on which Jeremy was to be returned but that Bruce failed to abide by their agreement.
One year later, on August 11, 1980, Bruce filed a petition for modification of child custody in the Missoula County District Court. Bruce alleged that jurisdiction was established under subsections (1)(a), (1)(b) and (1)(d) of section 40-4-211, MCA. In an affidavit filed in support of his petition, Bruce stated that he had resided in Missoula, Montana, since August, 1979; that Jeremy had been living with him for the past year with Elizabeth's consent; and that Jeremy was attending school in Missoula County.
In an initial response and counterpetition Elizabeth alleged that the court must decline to exercise jurisdiction over the modification petition because Bruce had improperly retained Jeremy in Montana after she requested that he be returned to her custody. In an amended response and counterpetition Elizabeth further alleged that Kentucky had continuing jurisdiction over the child custody determination, as was evidenced by an October 8, 1980, order from the Franklin Circuit Court finding Bruce in contempt of court for failing to return Jeremy to Elizabeth's custody, and that, because Kentucky desired to exercise its continuing jurisdiction, the Montana court could not exercise jurisdiction in accordance with 28 U.S.C. § 1738A, the "Full Faith and Credit Given to Child Custody Determinations" provision of the Parental Kidnapping Prevention Act of 1980. 1
At Elizabeth's request an order was issued on March 10, 1981, directing the Montana District Court to communicate directly with the judge of the Franklin Circuit Court of Kentucky in order to ascertain whether the Franklin Circuit Court desired to continue assertion of jurisdiction over the custody determination. On April 8, 1981, the District Court received a telephonic message from Judge Squire N. Williams of the Circuit Court of Frankfort, Kentucky, informing the court that Judge Williams agreed that since the child resided in Montana the custody matter should be determined in Montana. On April 13, 1981, Franklin Circuit Court Domestic Relations Commissioner, Robert A. Bowman, left a message that contradicted Judge Williams' earlier message. Judge Henson of the Montana District Court then asked Mr. Bowman to reduce his opinion to writing, and in a letter addressed to Judge Henson dated April 27, 1981, Mr. Bowman stated that it appeared that proper jurisdiction over the custody determination lies in Kentucky under the Uniform Child Custody Jurisdiction Act.
On July 27, 1981, Judge Henson heard arguments from counsel on the jurisdiction issue. During the hearing neither party presented any testimony through sworn witnesses. Elizabeth's counsel did, however, submit several exhibits as evidence that Kentucky had continuing jurisdiction. Exhibit 3 was a certified copy of the contempt order issued by the Franklin Circuit Court on October 8, 1980; Exhibit 4 was the April 27, 1981, letter from Mr. Bowman to Judge Henson. At the close of argument Judge Henson ruled, as a matter of law, that the Montana District Court had no jurisdiction over the cause. He also indicated that his ruling was not intended to be a reflection on the parties.
On July 31, 1981, Judge Henson issued findings of fact, conclusions of law and judgment. Specifically, the court found that:
The court concluded, inter alia, that:
In an August 27, 1981, order denying Bruce Pierce's motion for a new trial, the District Court reiterated that 28 U.S.C. § 1738A, and sections 40-7-109 and 40-7-114, MCA, were the bases upon which he concluded that no jurisdiction existed and that jurisdiction must be declined.
The appellant, Bruce Pierce, raises the following issues on appeal:
(1) Whether the District Court erred in dismissing appellant's petition for modification on the ground that Kentucky had, and desired to assert, continuing jurisdiction under 28 U.S.C. § 1738A?
(2) Whether the District Court erred in declining to exercise jurisdiction over appellant's petition for modification of the Kentucky custody determination on the ground that appellant had violated the terms of the Kentucky decree?
Prior to enactment of 28 U.S.C. § 1738A, in Montana, Kentucky and forty-two other states, the Uniform Child Custody Jurisdiction Act (UCCJA) protected one state's custody determination from modification by courts of another state. See, e.g., sections 40-7-101 et seq., MCA; Ky.Rev.Stat. §§ 403.400 et seq. In Wenz v. Schwartze (1979), Mont., 598 P.2d 1086, 36 St.Rep. 1360, this Court outlined the two-part process required to determine whether Montana has jurisdiction to modify another state's decree under the UCCJA. That process required first, a determination that Montana had jurisdiction under section 40-7- 104, MCA, which by reference incorporated the jurisdictional prerequisites of section 40-4-211, MCA, and second, a determination that the decree state no longer had jurisdiction or had declined to exercise its jurisdiction.
Section 8 of the Parental Kidnapping Prevention Act of 1980 elevated the UCCJA jurisdictional standards to a federal level. Custody determinations made in accordance with those standards must now be given full faith and credit. The same two-step decision-making process used under the UCCJA must be followed in applying 28 U.S.C. § 1738A(f).
The lower court correctly determined, under step 2 of the Wenz analysis, that if Kentucky had continuing jurisdiction, such a finding would foreclose any need for the trier of fact to ascertain whether Montana satisfied one of the four alternate jurisdictional bases under section 40-4-211, MCA. This Court finds no harm in the District Court's inverted approach to the jurisdictional issue; however, error does lie in the fact that the District Court's findings of fact and conclusions of law are not supported by evidence. Without benefit of either the affidavits required under section 40-7-110, MCA, or an evidentiary hearing, the District Court made conclusory findings that Kentucky's jurisdiction did in fact continue and that Montana must decline to exercise jurisdiction because appellant improperly retained the child after a visit. At a minimum, 28 U.S.C. § 1738A(f) requires the trier of fact to weigh the facts vis a vis the jurisdictional prerequisites established under the law of the decree state. The law is very clear: Kentucky's jurisdiction continues only if the child or one contestant still resides in Kentucky and one of the jurisdictional bases of Ky.Rev.Stat. § 403.420(1) is currently satisfied. 28 U.S.C. § 1738A(d). Ky.Rev.Stat. § 403.420(1), identical for the most part to section 40-4-211, MCA, provides:
To continue reading
Request your trial
-
Sams v. Boston, 18539
...conduct which the UCCJA was designed to discourage[,]" id. at 238); Snow v. Snow, 369 N.W.2d 581 (Minn.Ct.App.1985); Pierce v. Pierce, 197 Mont. 16, 640 P.2d 899 (1982) (declining to follow the Freeman case, discussed above in the text, as the UCCJ Act does not support the "tolling" of the ......
-
Calf Boss Ribs v. Cornelius (In re L.D.C.)
... ... sets forth the UCCJA's ... jurisdictional requirements by incorporating the provisions ... of § 40-4-211, MCA"); Pierce v. Pierce , ... 197 Mont. 16, 20-21 and 24-26, 640 P.2d 899, 902-03 and ... 904-06 (1982) (citing and applying two-tiered Wenz ... UCCJA child ... ...
-
Valerie L. Calf Boss Ribs v. Cornelius (In re L.D.C.)
...forth the UCCJA's jurisdictional requirements by incorporating the provisions of § 40-4-211, MCA"); Pierce v. Pierce , 197 Mont. 16, 20-21 and 24-26, 640 P.2d 899, 902-03 and 904-06 (1982) (citing and applying two-tiered Wenz UCCJA child custody jurisdiction analysis inclusive of § 40-4-211......
-
Cann v. Howard
...S.E.2d 675 (1984); Thompson, 484 U.S. 174, 108 S.Ct. 513; cf. Snow v. Snow, 369 N.W.2d 581 (Minn.App.1985); but see Pierce v. Pierce, 197 Mont. 16, 640 P.2d 899 (1982); see generally Annotation, Child Custody: When Does State That Issued Previous Custody Determination Have Continuing Jurisd......