97-618




                                                                                No. 97-618

                                             IN THE SUPREME COURT OF THE STATE OF MONTANA

                                                                                1998 MT 122



                                                                          IN RE MARRIAGE OF

                                                   THERESA LUNDBY, f/k/a/ THERESA RIPLEY,
                                                             n/k/a THERESA KOLAR,

                                                                   Petitioner and Appellant,

                                                                                       and

                                                                                DONALD LUNDBY,

                                                                    Respondent and Respondent.




                            APPEAL FROM:            District Court of the Eighth Judicial District,
                                                   In and for the County of Cascade,
                                             The Honorable Kenneth R. Neill, Judge presiding.


                                                                               COUNSEL OF RECORD:

                                                                                 For Appellant:

                                               Torger S. Oaas, Attorney at Law, Lewistown, Montana

                                                                                For Respondent:

                                       Daniel L. Falcon; Matteuci, Falcon, Squires & Lester, P.C.;
                                                          Great Falls, Montana



                                                               Submitted on Briefs: April 23, 1998

                                                                          Decided:               May 14, 1998

                                                                                            Filed:


                                                       __________________________________________


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                                                                                            Clerk

                            Justice Jim Regnier delivered the opinion of the Court.

¶1   This is an appeal from an order of the Eighth Judicial District Court,
Cascade County, granting change of primary custody of the parties' minor
children from the appellant, Theresa Lundby, to the respondent, Donald
Lundby. Vacated and Remanded.

¶2   The dispositive issue on appeal is whether the District Court had
jurisdiction to modify the custody agreement between the parties.
           FACTUAL AND PROCEDURAL BACKGROUND

¶3   Theresa Lundby and Donald Lundby were married in Great Falls,
Montana, on October 4, 1980. They have two children, David, born October
12, 1982, and Kevin, born May 12, 1985. Theresa and Donald separated on
April 9, 1992. On January 29, 1993, the Eighth Judicial District Court,
Cascade County, entered a final decree of dissolution, dissolving the marriage.
By a stipulated agreement which was incorporated into the court's decree,
Donald and Theresa were granted joint legal custody of the children.

¶4   Sometime in 1995, disputes arose over the conduct of visitation and the
parties returned to court. Most issues were settled by the parties and the
District Court only slightly modified the original custody award. However,
with the consent of both parties, Theresa was named primary physical and
residential custodian of the children by the court.

¶5   On April 4, 1996, Donald filed a motion for contempt and other relief,
alleging numerous failures by Theresa to abide by past court orders regarding
custody and visitation with the children. On June 10, 1996, Theresa filed a
motion for contempt of court and modification, claiming that Donald had
violated the court's orders regarding the children. After numerous delays
involving continuances and the death of the first District Court Judge, by an
amended order filed January 3, 1997, Judge Kenneth R. Neill appointed a
special master to make a final report concerning "all pending custody,
visitation, child support, medical expenses and contempt issues" between the
parties.

¶6   The special master met with the attorneys and reviewed the contents of
the District Court file. A hearing was held on January 16 and 17, 1997.
Witnesses testified and exhibits were entered into evidence. The special master
also interviewed both children. On January 24, 1997, the special master
submitted his report to the court, recommending changing primary physical
and residential custody from Theresa to Donald.

¶7   On August 14, 1997, after considering objections to the report by
Theresa, the District Court adopted the special master's report as the final
order of the court. Theresa now appeals from the District Court's order
adopting the special master's report.
                       DISCUSSION


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¶8   Did the District Court have jurisdiction to modify the custody
agreement between the parties?

¶9    The standard of review of a district court's conclusions of law is
whether the court's interpretation of the law is correct. Carbon County v.
Union Reserve Coal Co. (1995), 271 Mont. 459, 469, 898 P.2d 680, 686.

¶10 Theresa argues that the District Court erred in adopting the special
master's report recommending that primary custody of Kevin and David be
changed from Theresa to Donald because the court did not have jurisdiction
to modify custody. Theresa contends that in order for Donald to invoke the
jurisdiction of the court to modify custody, he must file a motion complying
with the provisions of § 40-4-220, MCA (1995). Theresa claims that the
record is devoid of any motion by Donald requesting a modification of custody
pursuant to the requirements of § 40-4-220, MCA (1995).

¶11 Donald counters that the issue of custody modification was tried by the
implied consent of the parties. He claims that he made an oral motion for
custody modification during the proceedings which the special master and the
parties recognized. Moreover, he contends that Theresa did not object at any
time during the proceedings to Donald's oral motion to modify custody.
Furthermore, Donald argues that there was substantial compliance with the
procedures set forth in § 40-4-220, MCA (1995), to give Theresa adequate
notice of his request to modify custody and, thus, the District Court had
properly assumed jurisdiction over the issue.

¶12        Section 40-4-220(1), MCA (1995), provided:
          A party seeking a temporary custody order or modification of a
          custody decree shall submit, together with his moving papers, an
          affidavit setting forth facts supporting the requested order or
          modification and shall give notice, together with a copy of his
          affidavit, to other parties to the proceeding, who may file
          opposing affidavits. The court shall deny the motion unless it
          finds that adequate cause for hearing the motion is established
          by the affidavits, in which case it shall set a date for hearing on
          an order to show cause why the requested order or modification
          should not be granted.

Under the statute, a party seeking to modify custody must submit a motion
with an affidavit setting forth the facts supporting the request and provide
notice to other parties in the proceeding.

¶13 In this case, no motion or affidavit was filed by Donald with the District
Court pursuant to § 40-4-220(1), MCA (1995).   Theresa never received
written notice of custody modification or an affidavit by Donald setting forth
the facts supporting his request for modification of custody. She was not
given an opportunity to file an opposing affidavit. We have previously held
that if the requirements of § 40-4-220(1), MCA (1995), are not met, a district
court has no jurisdiction to consider modifying custody. Knowlton v.
Knowlton (1981), 193 Mont. 448, 450, 632 P.2d 336, 337. See also In re
Marriage of Allison (1994), 269 Mont. 250, 887 P.2d 1217; Strouf v. Strouf

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(1978), 176 Mont. 406, 578 P.2d 746.

¶14 Donald responds by relying on In re Marriage of Stout (1985), 216
Mont. 342, 701 P.2d 729, and arguing that he had substantially complied with
§ 40-4-220(1), MCA (1995). Donald contends that his testimony, under oath
during the hearing before the special master, sufficiently set forth the
necessary facts to put Theresa on notice of his factual basis for modification
of custody.

¶15 In Stout, the father was awarded custody after he filed a verified
petition alleging specific facts as the basis for custody modification with the
district court. Stout, 216 Mont. at 345-46, 701 P.2d at 731. On appeal, the
mother argued that the court erred in not dismissing the petition to modify
custody because no separate document entitled "affidavit" was filed and served
with the petition. Stout, 216 Mont. at 347, 701 P.2d at 732. We held that the
court was correct in ruling that the verified petition complied with § 40-4-220(1),
MCA.
Stout, 216 Mont. at 347, 701 P.2d at 732. Our decision was
based on our determination that a verified petition is equivalent to an affidavit
and the father's petition set forth facts sufficient to put the mother on notice of
the factual basis for the modification. Stout, 216 Mont. at 347-48, 701 P.2d
at 732.

¶16 We determine that Donald, unlike the petitioner in Stout, has not
substantially complied with the requirements of § 40-4-220(1), MCA (1995).
As stated above, Donald filed no motion or affidavit with the court requesting
a modification of the custody agreement. No notice was provided to Theresa
regarding his request for custody modification.

¶17 Even if an oral motion was made by Donald during the proceeding
before the special master, that oral motion, along with Donald's testimony
setting forth his factual basis for modification, could not sufficiently give
Theresa notice that Donald wanted to modify their custody arrangement.
Theresa attended the hearing before the special master on notice of only
Donald's motion for contempt. She was not prepared to defend an argument
by Donald regarding custody modification.

¶18 Furthermore, we note that only two motions were before the District
Court when it appointed the special master for the purpose of making a report
concerning "all pending custody, visitation, child support, medical expenses
and contempt issues" in this case. First, there was Donald's motion for
contempt and other relief. Donald moved the court to hold Theresa in
contempt for failing to abide by the court's previous orders regarding
visitation, care of the children, the children's medical expenses, and the
transportation of the children between visits. Next, there was Theresa's motion
for contempt of court and modification. Theresa moved the court to hold
Donald in contempt for failing to abide by the court's July 7, 1995, order
regarding insurance coverage, visitation, modification of child support, and the
transportation of the children. Neither Donald's nor Theresa's motions
requested modification of custody.


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¶19 Therefore, when the District Court appointed the special master to
resolve the motions between the parties, the only pending issues to be resolved
were the contempt motions. There was no motion for custody modification
before the court. In fact, the special master recognized that custody was not
at issue here. In making his closing remarks before the parties at the end of the
hearing on January 17, 1997, the special master stated: "Frankly, my
impression after going through the file in my own mind was I wondered why
we did not have a custody motion on the table here." However, for reasons
that escape this Court, the special master, in addition to resolving the issues in
the contempt motions, recommended that the primary custody of the children
should be changed from Theresa to Donald. The special master's report,
including the recommendation regarding custody, was adopted in its entirety
as the final order of the District Court.

¶20 Under Rule 53, M.R.Civ.P., a special master's authority is limited to the
particular issues or acts stated in the order of reference to the master. In this
case, the special master was appointed to resolve all pending issues between
the parties. As stated above, the only pending issues to be resolved were the
parties' contempt motions. There was no motion for custody modification to
be decided before the District Court or the special master.

¶21 We conclude that the District Court erred in adopting the special
master's report granting primary custody of the children to Donald. The
District Court's August 13, 1997, order granting primary custody of the
children to Donald is vacated for lack of jurisdiction. This matter is remanded
for proceedings consistent with this opinion.

                                                             /S/       JIM REGNIER


We Concur:

/S/       J. A. TURNAGE
/S/       TERRY N. TRIEWEILER
/S/       JAMES C. NELSON
/S/       W. WILLIAM LEAPHART




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