                            No.    92-179
          IN THE SUPREME COURT OF THE STATE OF MONTANA
                                  1992


IN RE THE MARRIAGE OF
JIM J. OLTERSDORF,
          Petitioner and Appellant,
    and
JOAN ARLENE OLTERSDORF,
          Respondent and Respondent.



APPEAL FROM:   District Court of the Fourth Judicial District,
               In and for the County of Ravalli,
               The Honorable John S. Henson, Judge presiding.


COUNSEL OF RECORD:
          For Appellant:
               Howard C. Greenwood, Hamilton, Montana
          For Respondent:
               Lori Ballinger and Paulette C. Ferguson,
               Missoula, Montana


                            Submitted on Briefs:     December 3, 1992
                                            Decided: December 24, 1992
Filed:
Chief    Justice J. A. Turnage delivered the Opinion of the Court.
        Jim Oltersdorf appeals an order of the Fourth Judicial D ~ S -
trict Court, Ravalli County, setting aside its previous order
determining child custody and child support in this dissolution of
the marriage of Jim and Joan Oltersdorf.       We affirm.
        The determinative issue is whether the ~istrictCourt had
jurisdiction over the question of child custody.
        In May 1990, Jim Oltersdorf filed with the ~istrictCourt for
Ravalli County, Montana, a petition for dissolution of his marriage
to Joan Oltersdorf.     In the petition, he stated that he had been a
Montana resident for more than ninety days and that Joan resided in
San Bernardino, California.      J i m s t a t e d that two children, Sasha
and Joalena, had been born to the parties and that Sasha was in his
care and custody and Joalena was in the care and custody of Joan.
During the time at issue in this case, Sasha was an elementary
school student and Joalena was a preschooler.
        Joan acknowledged receipt of the summons and petition pursuant
to Ruf e 4 (D) (1)(b), M.R. Civ.P.   The court ruled upon a motion con-
cerning visitation before it entered the final decree of dissolu-
tion in October 1991. In the decree, the court noted that Joan had
not appeared either personally or by counsel at trial.           Although
Jim had asked in his petition that he be awarded custody of Sasha
and Joan be awarded custody of Joalena, the court awarded custody
of both Sasha and Joalena to Jim.
        I n December 199 1, Joan, through her counsel, moved under Rules
55 (c) and 6 0 (b), M.R.Civ.P.,   to set aside the October 1991 judg-
ment.     After a hearing, the court granted the motion to set aside
its custody determination regarding Joalena, on the basis of lack
of notice to Joan.      The court also ruled that it lacked jurisdic-
tion to determine custody of either of the children.        In order to
restore the parties to their positions before the October 1991
order was entered, the court ordered that custody of both girls be
immediately returned to Joan.


        id the District Court have jurisdiction over the question of

child custody?
        Jim claims that the District Court had jurisdiction over child
custody because a dissolution had been filed in the court, Joan had
consented to jurisdiction by voluntarily appearing through counsel,
and the court had already exercised child custody jurisdiction by
ruling on a motion concerning visitation. But jurisdiction over a
dissolution of marriage does not necessarily confer jurisdiction
over child custody issues involved therein.       E.g.,   In re Marriage
of Brown    (19851,   218 Mont, 14, 706 P.2d 116; compare 5 5 40-4-104
and 40-4-211, MCA.     Also, the court did not acquire jurisdiction by
virtue of its previous rulings on motions concerning visitation,
because a court does not acquire subject matter jurisdiction merely
by ruling on a matter.       The issue of subject matter jurisdiction
may be invoked at any time in the course of a proceeding.    In re
Marriage of Lance (1984), 213 Mont. 182, 186, 690 P.2d 979, 981.
     Section 40-4-211, MCA, provides:
     (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:
     (a) this state:
     (i) is the home state of the child at the time of
     commencement of the proceedings; or
     (ii) had been the child's home state within 6 months
     before commencement of the proceedings and the child is
     absent from this state because of his removal or reten-
     tion by a person claiming his custody or for other reason
     and a parent or person acting as parent continues to live
     in this state; or
     (b) it is in 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; or
     (c) the child is physically present in this state and:
     (i) has been abandoned; or
     (ii) it is necessary in an emergency to protect him
     because he has been subjected to or threatened with
     mistreatment or abuse or is neglected or dependent; or
     (d) (i) no other state has jurisdiction under prerequi-
     sites substantially in accordance with subsections
     (1)(a), (1)(b), or (1)(c) of this section or another
     state has declined to exercise jurisdiction on the ground
     that this state is the more appropriate forum to deter-
     mine custody of the child; and
     (ii) it is in his best interest that the court assume
     jurisdiction.
One of the four disjunctive requirements set forth above must be
met before a court may make a custody determination.
       The record indicates that until Jim and Joan separated, Sasha
and Joalena lived with both parents in California.       In February
1988,   Joan, Sasha, and Joalena moved to Canada. In December 1989,
Sasha traveled to visit Jim in Montana, where he had by then
relocated.    She stayed until June 1990, when she joined Joan and
Joalena, who had moved back to California.       When Jim filed his

petition for dissolution in May 1990, Sasha had lived with him in
Montana for a little over four months and Joalena had never lived
in Montana.
       Neither Sasha nor Joalena had lived in Montana for six months
prior to Jim's filing of the petition for dissolution. Therefore,
Montana was not the IfhomestateJt
                                under part (a) of    §   40-4-211(1),
MCA,    "Home stateM is defined at 5 40-7-103(5), MCA, for purposes
of both the Uniform Child Custody Jurisdiction Act, Title 40,
Chapter 7, MCA, and the Uniform Marriage and Divorce Act, Title   40,

Chapter 4, MCA, as the state in which the child lived for the
preceding six months.
       In the order setting aside its previous custody order, the
District Court reasoned as follows concerning the requirements of
parts (b), (c), and (d) of 5 40-4-211(1), MCA:
       Subsection (b) of 40-4-211(1) confers jurisdiction if
       such jurisdiction is in the childls best interest
       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 substan-
    tial evidence concerning the child's present or future
    care, protection, training, and personal relationships
     ...
    This prerequisite is drafted in the present tense.
    Therefore, the Court shall determine if it was proper to
    assume jurisdiction on the date of October 3, 1991 based
    on the facts and circumstances as they existed on that
    date. According to Petitioner's affidavit filed July 17,
    1990, the Petitioner had resided in Montana since Septem-
    ber of 1989. Petitioner testified that he travelled to
    California and remained there during part of February and
    March of 1991. While in California, Petitioner lived
    with Respondent for a portion of that time, and re-
    searched employment opportunities. As of October 3,
    1991, Joalena had been living with Respondent in Califor-
    nia since March, 1990, a period of roughly one and one-
    half years. In addition, Sasha had been living with
    Respondent and attending school in California since June
    5, 1990, a period of roughly one year and four months.
    According to these facts, neither child had a significant
    connection in Montana at the time of the October 3, 1991
    hearing so as to allow this Court to assume jurisdiction
    to make a child custody determination of either child.
    Likewise, 5 40-4-211(c) or (d) does not confer jurisdic-
    tion in Montana. Rather, the facts and circumstances
    establish a sufficient nexus between the minor children
    and the State of California so as to confer jurisdiction
    in that State. Therefore, aside from the fact that the
    Respondent lacked notice regarding the child custody
    determination of Joalena, jurisdiction did not lie in
    Montana for this Court to make the subject child custody
    determinations regarding either child.

We agree with the District Court's analysis concerning jurisdic-
tion. We hold that the court did not err in concluding it did not
have jurisdiction to determine custody of Sasha or Joalena.
    Jim also argues that a Rule 60(b), M.R.Civ.P., motion may not
be used to set aside an order based on lack of jurisdiction. Rule
60(b) (6), M.R.Civ.P., allows a judgment to be set aside for "any
o t h e r r e a s o n j u s t i f y i n g r e l i e f from t h e operation of t h e judgment.'@
That language is c l e a r l y broad enough t o include l a c k of j u r i s d i c -

tion.
        Because w e h o l d that t h e D i s t r i c t Court d i d n o t have j u r i s d i c -
t i o n t o d e t e r m i n e c h i l d custody, w e need n o t address t h e i s s u e of
whether J o a n w a s g i v e n adequate n o t i c e of t h e c u s t o d y proceeding
concerning J o a l e n a .
        Affirmed.




                                                     [-
                                                     17*   Chief J u s t i c e

W e concur:
                                  December 24, 1992

                             CERTIFICATE OF SERVICE

I hereby certify that the following order was sent by United States mail, prepaid, to the
following named:


Howard C. Greenwood
Attorney at Law
P.O. Box 1567
Hamilton, MT 59840

Lori Ballinger & Paulette C. Ferguson
Attorneys at Law
210 N. Higgins, Ste. 302
Missoula, MT 59802


                                                ED SMITH
                                                CLERK OF THE SUPREME COURT
                                                STATE OF MONTANA

                                                BY:
                                                 ~ e p t ~ '
