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                                                               No. 97-680




                          IN THE SUPREME COURT OF THE STATE OF MONTANA




                                                             1998 MT 190




                                    IN RE PATERNITY AND CUSTODY OF B.E.S.,




                                                            A Minor Child.




                                                           JAMES LEWIS,




                                                    Petitioner and Respondent,




                                                                      v.




                                    MELISSA SOWERS, n/k/a MELISSA GREENE,




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                                                    Respondent and Appellant.




                                                               APPEAL FROM: District Court of the Eighth Judicial
                                                                                 District,

                                                In and for the County of Cascade,

                                     The Honorable Marge Johnson, Judge presiding.




                                                    COUNSEL OF RECORD:




                                                             For Appellant:




                              Marcia Birkenbuel, Attorney at Law; Great Falls, Montana




                                                            For Respondent:




                               Daniel L. Falcon, Attorney at Law; Great Falls, Montana




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                                               Submitted on Briefs: June 11, 1998




                                                        Decided: July 29, 1998

                                                                    Filed:




                                    __________________________________________

                                                                    Clerk

                            Justice Jim Regnier delivered the opinion of the Court.

¶ In August 1995, James Lewis filed a petition in the Eighth Judicial District Court,
Cascade County, to establish paternity, custody, and visitation rights as the father of
then three-year-old B.E.S. In June 1997, Lewis filed a motion for contempt and for
specified visitation on the grounds that the child's mother, Melissa Sowers (now
known as Melissa Greene and hereinafter referred to as Sowers) had denied him
reasonable visitation. Sowers later filed a motion asking that the District Court
decline to exercise continuing jurisdiction over the matter. The court denied Sowers'
motion to decline jurisdiction, and subsequently entered an oral order granting
Lewis much of the relief he sought by way of his motion for contempt and specified
visitation. Sowers appeals from the District Court's order denying her motion to
decline jurisdiction and from the court's oral order granting Lewis's motion for
specified visitation and request for attorney fees.

¶ The sole dispositive issue presented by Sowers on appeal is whether the District
Court abused its discretion in denying her motion to decline jurisdiction.

                             FACTUAL AND PROCEDURAL BACKGROUND
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¶ B.E.S. was born in Great Falls, Montana, on March 29, 1992, to Melissa Sowers
and James Lewis. The relationship between Sowers and Lewis had begun to
deteriorate prior to B.E.S.'s birth, and the two never married. The record indicates
that Lewis's paternity was initially established by blood tests performed in 1994.

¶ B.E.S. has lived with her mother for her entire life. B.E.S. lived in Great Falls with
her mother from the time of her birth until the summer of 1997, when she and her
mother moved to Fargo, North Dakota, to live with Sowers' new husband. On August
15, 1995, while B.E.S. and her mother were still living in Great Falls, Lewis filed a
petition in Cascade County District Court to establish paternity, custody, and
visitation rights as B.E.S.'s father. Lewis is a Wisconsin resident, as he was at the
time he filed the petition in August 1995.

¶ On March 6, 1996, Lewis filed a motion for temporary visitation on the grounds
that he and Sowers had been unable to negotiate an acceptable visitation schedule.
On March 15, 1996, Sowers filed a motion for an order requiring Lewis to pay
temporary child support, to maintain health insurance for B.E.S. and to pay all of the
child's uncovered medical expenses. The court held a hearing on March 18, 1996, to
address the parties' respective motions. Prior to the hearing, the parties reached an
agreement with respect to temporary visitation, temporary child and medical
support, and a variety of other issues. The parties entered their stipulations upon the
record during the hearing.

¶ More than one year later, on June 24, 1997, Lewis filed a "motion for contempt, for
specified visitation, and other relief." Lewis asserted he had been denied visitation
with his daughter on a regular basis, and asked the court to order "a set visitation
schedule." Lewis additionally asked that the court hold Sowers "in contempt for her
failure to abide by past orders, and to live up to her obligations under the joint
custody statutes regarding maintaining contact between" B.E.S. and Lewis. Among
Lewis's remaining requests were that the court issue an order temporarily
prohibiting Sowers from removing B.E.S. from the court's jurisdiction, and that it
order Sowers to pay the attorney fees and costs he incurred in connection with filing
the motion.

¶ On July 10, 1997, the District Court issued a temporary order mandating that B.E.
S. "remain in Great Falls, Montana, with her maternal grandmother, until a hearing

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can be held in this matter." The court set a hearing to address the remainder of
Lewis's motion for October 31, 1997.

¶ On September 19, 1997, Sowers filed a motion for an order declining jurisdiction.
Sowers asked that the court decline "to exercise continuing jurisdiction in this matter
for the reasons that this state is an inconvenient forum, pursuant to Section 40-7-108,
MCA, and the child's home state of North Dakota is a more appropriate forum for
this case." Sowers noted that Lewis was a resident of Wisconsin, and argued that
because she and B.E.S. were residents of North Dakota, "[a]ny evidence regarding
the child's present or future care, protection, training, and personal relationships is
more readily available in North Dakota than in Montana." Sowers argued that "[t]he
state of North Dakota obviously has a closer connection with the child and her family
than Montana has," and asserted that the continued exercise of jurisdiction by
Montana's courts would contravene the purpose of the Uniform Child Custody
Jurisdiction Act.

¶ On October 29, 1997, the District Court issued an order denying Sowers' motion
for an order declining jurisdiction, finding that, at the time Lewis filed his motion for
contempt, for specified visitation, and other relief, "Montana was clearly the home
state of the child and it is at that point that the determination is made." The court
additionally noted that, as of the October 29, 1997, date of its order, B.E.S. had "yet
to live for a six month period of time in North Dakota."

¶ On October 31, 1997, the court held a hearing on Lewis's motion for contempt,
visitation, and other relief. At the close of the hearing, the court entered an oral
order granting Lewis certain visitation rights, and mandating that Sowers pay a
portion of Lewis's attorney fees and costs.

¶ On November 26, 1997, Sowers filed her notice of appeal from the District Court's
October 29, 1997, order denying her motion to decline jurisdiction, and from its
October 31, 1997, oral order regarding visitation and attorney fees.

                                                            DISCUSSION

¶ Did the District Court abuse its discretion in denying Sowers' motion to decline
jurisdiction?



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¶ As noted, Sowers appeals from the District Court's order denying her motion to
decline jurisdiction, as well as from its subsequent order granting Lewis certain
visitation rights and mandating that she pay a portion of his attorney fees and costs.
Although Sowers appeals from both orders, the sole issue she raises on appeal is
whether the court erred in denying her motion to decline jurisdiction. We review the
District Court's decision denying Sowers' motion to decline jurisdiction for an abuse
of discretion. See, e.g., In re Marriage of Irwin (1993), 259 Mont. 176, 179, 855 P.2d
525, 527.

¶ On appeal, Sowers argues the District Court failed to complete the two-tiered
jurisdictional analysis required by the Uniform Child Custody Jurisdiction Act
(UCCJA), and that it was thus an abuse of discretion for the court to deny her
motion to decline jurisdiction. Although Sowers does not specifically dispute the
District Court's conclusion that Montana was B.E.S.'s "home state" at the time of
Lewis's motion for contempt and visitation, she does assert the court erred in ending
its jurisdictional inquiry at that point. Sowers argues that once the court had
evaluated the jurisdictional prerequisites of § 40-4-211, MCA, it was bound to then
determine whether Montana's courts were an inconvenient forum to make a custody
determination under the circumstances present at the time of her September 19,
1997, motion to decline jurisdiction. More specifically, Sowers argues the court
abused its discretion in failing to address those factors identified in § 40-7-108(3),
MCA, as relevant to an inconvenient forum determination. For example, although
Sowers concedes the court considered whether another state was B.E.S.'s home state,
she argues the court failed to consider whether another state had a closer connection
with the child and whether substantial evidence regarding B.E.S.'s welfare was more
readily available in another state. Sowers also argues the court failed to consider
whether the continued exercise of jurisdiction by Montana's courts would contravene
the purposes of the UCCJA as set forth in § 40-7-102, MCA. Based on the foregoing,
Sowers asks that we vacate the District Court's decision, and remand this matter
"with instructions to stay the District Court proceedings pending assumption of
jurisdiction over these matters by the North Dakota court."

¶ Lewis, in contrast, argues the District Court correctly concluded it had jurisdiction
over the present case pursuant to § 40-4-211, MCA, and asserts the court did not
abuse its discretion in deciding to maintain jurisdiction over the matter. More
specifically, Lewis argues the District Court correctly concluded that Montana was B.
E.S.'s "home state," and argues the court thus had jurisdiction pursuant to § 40-4-

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211, MCA.

¶ Lewis next recognizes that § 40-7-108, MCA, authorizes a Montana court to decline
jurisdiction "at any time before making a decree if it finds that it is an inconvenient
forum to make a custody determination under the circumstances of the case and that
a court of another state is a more appropriate forum," but argues the court was not
obligated to undertake such an analysis. Even if it was necessary for the court to
address the inconvenient forum question, however, Lewis argues there was no more
appropriate forum in this case than that presented by Montana's courts. For
example, Lewis asserts that "all relevant evidence pertaining to B.E.S.'s care,
training, [and] personal relationships" was located in Montana at the time he filed
his motion for contempt and visitation. Moreover, unlike Sowers, Lewis asserts that
the District Court's decision to maintain jurisdiction in this case actually complies
with the stated purposes of the UCCJA. Based on the foregoing, Lewis argues the
District Court did not abuse its discretion in denying Sowers' motion to decline
jurisdiction.

¶ We have previously stated that the UCCJA "establishes a two-tiered jurisdictional
test which a court must find satisfied before it makes even an initial custody decree."
In re Marriage of Bolton (1984), 212 Mont. 212, 216, 690 P.2d. 401, 403 (quoting Wenz
v. Schwartze (1979), 183 Mont. 166, 178, 598 P.2d 1086, 1093, cert. denied (1980), 444
U.S. 1071, 100 S. Ct. 1015, 62 L. Ed. 2d 753). The first tier "mandates that one of the
four disjunctive requirements of Section 40-4-211, MCA, be satisfied before a district
court may take jurisdiction to make a child custody determination." Bolton, 212
Mont. at 216, 690 P.2d at 403. Section 40-4-211(1), MCA, provides in pertinent part
that "[a] court of this state competent to decide parenting matters has jurisdiction to
make a parenting determination by initial or amended decree if: (a) this state: (i) is
the home state of the child at the time of the commencement of the proceedings."

¶ In the present case, the District Court specifically concluded that because B.E.S.
had "yet to live for a six month period of time in North Dakota" at the time of
Lewis's motion for contempt and specified visitation, or the time of its order,
"Montana was clearly the home state of the child." Because Sowers does not
specifically dispute this conclusion on appeal, we need not determine whether the
court erred in concluding that Montana qualified as B.E.S.'s "home state" as that
term is defined by § 40-7-103(5), MCA. It is thus apparent that the first tier of the
UCCJA's jurisdictional test was met in the present case.

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¶ The second tier of the UCCJA's jurisdictional test "demands that a court which
has satisfied the prerequisites of Section 40-4-211, MCA, then determine whether
jurisdiction should be exercised." Bolton, 212 Mont. at 220, 690 P.2d at 405. Under
this second tier, the district court has "discretionary authority to 'decline to exercise
its jurisdiction' upon a determination that it is an 'inconvenient forum' and that a
court of another state is a 'more appropriate forum.'" Bolton, 212 Mont. at 216-17,
690 P.2d at 403 (citing § 40-7-108, MCA). We have explicitly recognized that "[t]he
decision to decline jurisdiction on inconvenient forum grounds is purely
discretionary with the District Court." In re Marriage of Cook (1986), 223 Mont. 293,
297, 725 P.2d 562, 564-65. We have stated that the court, in determining whether it is
an inconvenient forum, "shall consider if it is in the child's best interest for another
state to assume jurisdiction, taking into account such factors as whether another
state is the child's home state, whether substantial evidence concerning the child's
welfare is more readily available in another state, and whether the exercise of
jurisdiction by a Montana court would contravene the UCCJA's stated purposes."
Irwin, 259 Mont. at 179, 855 P.2d at 527 (citing § 40-7-108(3), MCA). Section 40-7-108
(3), MCA, specifically provides that:

                  In determining if it is an inconvenient forum, the court shall consider if it is in
                  the interest of the child that another state assume jurisdiction. For this purpose
                  it may take into account the following factors, among others:

                  (a) if another state is or recently was the child's home state;

                  (b) if another state has a closer connection with the child and his family or
                  with the child and one or more of the contestants;

                  (c) if substantial evidence concerning the child's present or future care,
                  protection, training, and personal relationships is more readily available in
                  another state;

                  (d) if the parties have agreed on another forum which is no less appropriate;
                  and

                  (e) if the exercise of jurisdiction by a court of this state would contravene any
                  of the purposes stated in 40-7-102.


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¶ Although the District Court considered the "home state" factor, it is clear from the
text of its order denying Sowers' motion to decline jurisdiction that it did not
specifically evaluate any of the remaining statutory factors before deciding to
maintain jurisdiction over the present case. Despite the fact that the court did not
expressly discuss the remaining criteria identified by § 40-7-108(3), MCA, we
nevertheless conclude the court did not abuse its discretion in denying Sowers'
motion to decline jurisdiction. Nowhere does § 40-7-108(3), MCA, mandate that the
court consider each of the five factors set forth within. Instead, the statute simply
lists a number of elements which the court may consider in making an inconvenient
forum determination. In the present case, the court clearly considered the first factor
set forth in § 40-7-108(3), MCA, and concluded that Montana was B.E.S.'s home
state. The record indicates that B.E.S. spent the first five years of her life in Great
Falls, Montana, and moved to North Dakota in early July 1997, just days after Lewis
filed his motion for contempt and for specified relief. Sowers filed her motion asking
that the court decline to exercise continuing jurisdiction over the case just two and
one-half months after B.E.S. had moved to North Dakota. At the time of Sowers'
motion to decline jurisdiction, B.E.S. had lived in Montana for all but two and one-
half months of her life. Under these circumstances, there is no indication that B.E.S.
and her family had any closer connection to North Dakota then they did to Montana,
and no indication that evidence regarding B.E.S.'s welfare was any more readily
available in North Dakota than it was in her home state of Montana. Finally, we note
there is no indication that the exercise of continuing jurisdiction by the Montana
court in this case contravenes any of the nine general purposes of the UCCJA, among
which is the deterrence of "unilateral removals of children undertaken to obtain
custody awards." Section 40-7-102(1)(e), MCA.

¶ Based on the foregoing, we hold the District Court did not abuse its discretion in
denying Sowers' motion to decline jurisdiction, and accordingly affirm the court's
October 31, 1997, oral order regarding visitation and attorney fees.



/S/ JIM REGNIER




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We Concur:



/S/ J. A. TURNAGE

/S/ KARLA M. GRAY

/S/ WILLIAM E. HUNT, SR.

/S/ TERRY N. TRIEWEILER




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