                                   NO.    95-001
               IN THE SUPREMECOURT OF THE STATE OF MONTANA
                                         1995


IN RE THE MARRIAGE OF
KIMMA FLAMMONDWHETHAM,
               Petitioner   and Appellant,
         and
JAMES LEROY WHETHAM,
               Respondent




APPEAL FROM:          District  Court of the Ninth Judicial District,
                      In and for the County of Pondera,
                      The Honorable John M. McCarvel, Judge presiding.


COUNSEL OF RECORD:
               For Appellant:
                      Thane Johnson; Werner,       Epstein   & Johnson,
                      Cut Bank, Montana

               For Respondent:
                      Joan E. Cook, Attorney       at Law, Great    Falls,
                      Montana


                                      Submitted     on Briefs:     April     27, 1995
                                                       Decided:    May 25, 1995
Filed:
Justice         W. William            Leaphart           delivered           the Opinion          of the Court.


         Kimma Flammond Whetham (Kimma) appeals                                          from     the      findings          of
fact,      conclusions            of law and order                     of the Ninth             Judicial          District
Court,          Pondera County,              which modified                  Kimma's prior           child         custody
arrangement          with        her      former         husband James Leroy                     Whetham (James).
We affirm.
         Kimma presents                 three         issues          for    review      which      we restate               as
follows:
         1.        Did     the        District           Court        err     in    concluding           that       it      had
jurisdiction             to determine                 the custody            issue?
         2.        Did      the         District           Court            err     in     concluding              it       had
jurisdiction             before         entering          findings           of fact       on the issue?
         3.        Did the District                    Court     err        in modifying          custody?
Backsround
           One child,            Jamie,          was born            to Kimma and James on August                                3,
1986.           On October            10, 1989,          Kimma and James'                  common law marriage
was dissolved.                    The decree               of        dissolution           provided          for         joint
custody          of Jamie with               Kimma designated                     as the primary            custodian.
Prior      to entry        of the decree,                  Kimma moved to Oregon with                           Jamie.
          In mid-January                of       1994,     Kimma left              Jamie     and Kimma's                 other
daughter          from a previous                 marriage           with     friends      in Washington                 state
because          she was forced                  to    leave         her    housing.         Kimma remained                      in
Oregon.          Jamie lived            with       Kimma's friends                 in Washington           state         until
June       of     1994.          In     June,         Jamie      went         to    Montana        for      her         summer
visitation          with     James.

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          On February          14, 1994,         James petitioned                 the District            Court        to
modify       the custody         arrangement.             On August             24, 1994, the court                  held
a hearing         and on September              6, 1994, the court                  entered       its     findings
of fact,         conclusions           of law and order.                The court        concluded            that     it
had jurisdiction               over the matter            and ordered            that    the parties               would
have joint          custody,         but that     James would be the primary                           custodian.
          On September           28, 1994, Kimma filed                   a motion        to alter         or amend
the judgment              but the court          took     no action             on the motion            within        45

days,      and it         was deemed denied.                  Kimma appeals.
Issue      1
          Did     the       District         Court       err       in     concluding            that          it      had

jurisdiction              to determine         the custody              issue?
          The District            Court       concluded           that      it     had     jurisdiction                to
modify         custody      based on § 40-4-211,                MCA. We review                conclusions              of
law,      such as jurisdictional                  conclusions,             to determine             whether           the
court's         interpretation            of the law was correct.                        In re Marriage                of
Barnard         (1994),       264 Mont.        103,      106,     870 P.2d 91, 93.
          Section          40-4-211(l),          MCA, lists               the      situations            in        which
Montana courts              may assume jurisdiction                     over child         custody        matters.

There      are      four     separate        circumstances               under     which      the       court         may
assume jurisdiction,                   any one of which is sufficient.                            The District
Court      concluded,            and we agree,             that         5 40-4-211(l)           (b),      MCA, was
sufficient           to     confer        jurisdiction            in     this      case.         That         section
states:
          (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:

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          ibj it'is      i n 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            . . .
Section        40-4-211(l)          (b),     MCA.
          Here,      there         is      no      dispute         that       James         has      significant
connection          to    this      state.           We hold       that       Jamie has a significant
connection          to Montana because she was born and lived                                    in Montana for
the first          few years        of her life,                she has had summer visitation                          in
Montana,          and both         of    her parents             have close         relatives          living          in
Montana.           Additionally,             Jamie's         father        or mother's            relatives          can
provide       substantial           evidence         regarding         Jamie's       care.        There is also
substantial          evidence           in Montana as to her protection,                          schooling          and
relationships             with     other        family      members.
           Kimma argues           that     Oregon is            Jamie's       home state           and that          the
District          Court     did    not sufficiently                consider         that       Oregon may have
jurisdiction             over this         matter.          Kimma contends              that     In re Marriage
of Miller          (1993),        259 Mont.          424,       856 P.2d 1378,             demonstrates             that
a district          court        must first          consider         whether       another        state       is    the
child's        home state          before         determining          jurisdiction.               We disagree.
In Marriage          of Miller,            this    Court determined                that        Pennsylvania          was
the child's          home state            as a necessary              step     in determining                whether
the Montana           court       had jurisdiction                pursuant         to      § 40-4-211(l)            (d),
MCA.        Marriase         of    Miller,         856 P.2d           at   1381.          This     analysis          was
necessary          as we determined               that      none of the other                  subsections          of s

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40-4-211(l),             MCA, conferred                  jurisdiction                upon the district                     court.
However in this                case,        the District              Court         had jurisdiction                   pursuant
to       5       40-4-211(1)(b),                MCA,          thus       a         home     state             analysis           was
unnecessary.
           Finally,          once jurisdiction                   is      established                under        § 40-4-211,
MCA, the court                may still             decline          jurisdiction              if      it     finds      that      it
is     an inconvenient                forum.           Section         40-7-108(l),                   MCA.       Here,      given
the parties'             significant                connections              to Montana,              it     cannot      be said
that       the District              Court      erred         in failing             to find           that      Montana was
an inconvenient                forum.          We hold that              the District                 Court       did not err
in concluding                that     it     had jurisdiction                      to modify           custody.
Issue        2
         Did the District                    Court      err      in concluding                 it      had jurisdiction
before           entering       findings            of fact          on the issue?
         After         the      court         questioned               both         parties,               and    before         the
attorneys             questioned             the      parties,               Kimma's        counsel              requested              a
ruling           on jurisdiction.                    In response,                  Judge McCarvel                stated         that
the      court       had jurisdiction.                      Several           days after               the hearing,              the
District           Court entered              its     written         findings         of fact              and conclusions
of     law.         Kimma contends                   that     the       judge's           oral        statement            before
issuing           findings      of fact             is contrary          to the commands of Rule 52(a),
M.R.Civ.P.,             and this             Court's         ruling           in    Marry        v.        Missoula        County
Sheriff's            Dept.      (1993),             263 Mont.         152,         866 P.2d 1129.
           Rule 52(a),              M.R.Civ.P.,             requires           the court              to specially              find
the      facts         and      separately              state          its         conclusions               based       on      the
findings.             In Marrv,            the plaintiff              brought         a personal              injury       action

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following            an auto             accident.               Th,e trial            court     initially              found         that
the      parties            were         equally            at        fault      and made a conclusion                                that
because            the parties             were equally                  at fault,           the plaintiff               could         not
recover.             The plaintiff                 moved the court                      to amend its               findings            and
conclusions                on the basis                  that,         under      Montana          law,      if       the parties
were equally                at fault,            she could               recover            50% of her damages.                        The
court        amended its             findings,              but stated            it    was the court's                  intention
to     deny the plaintiff                        any recovery.                       Thus the          court          amended its
findings            to     read      that        the plaintiff                    was more at                fault        than         the
other         driver.              Marrv,        866 P.2d at                   1130-31.           This       Court        reversed
stating            that      it     was apparent                      that     the      court        did     not       review          the
record            before          amending         its       findings            in     violation            of Rule          52(b),
M.R.Civ.P.,                and that             the      trial          court        effectively             made its            legal
conclusion               before       making supporting                         findings         in violation              of Rule

52    (a),     M.R.Civ.P.                 Marry,         866 P.2d at 1131.
             The present                 case     is        distinguishable.                         The District                Court
questioned                 the      parties            before               counsel          requested            a     ruling          on
jurisdiction.                     In response               to the request,                    the judge           made an oral
ruling.            The court             also made written                     findings         before        making written
conclusions                which         were      supported                  by the         findings.             There         is     no
indication,                as      there         was in               Marry,         that      the     court          skewed           its
findings            to      arrive         at     a desired                   conclusion.              We hold            that         the
District            Court          did     not        err        in     making         its      findings           of     fact         and
conclusions                of law.
Issue         3
             Did the District                   Court        err        in modifying             custody?

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        We have            stated        that       we will          overturn          a      court ' s       custody
decision          only     when the         court's          findings            and conclusions              clearly

demonstrate          an abuse of discretion.                        In re Marriage               of Hunt          (1994),
264 Mont.         159,     164, 870 P.2d 720, 723.                         We hold      that       the court            did
not abuse its             discretion.
        Section          40-4-219(l),             MCA, provides             in relevant            part:
        The court may in its discretion        modify a prior     custody
        decree if it finds,      upon the basis of facts       that have
        arisen since the prior decree or that were unknown to the
        court at the time of entry of the prior          decree, that a
        change has occurred in the circumstances        of the child or
        his custodian    and that the modification     is necessary to
        serve the best interest      of the child and if it further
        finds that:
        . . .
         (c) the child's   present environment     endangers seriously
        his physical,    mental, moral, or emotional     health and the
        harm likely    to be caused by a change of environment          is
        outweighed by its advantages to him . .            .
Here,       the    District            Court       concluded         that        § 40-4-219(l)             (c),      MCA,
permitted         the modification                 of custody            in this      case.            We agree.
        Kimma left               Jamie      in     the      care     of     friends        in      the      state        of
Washington          for approximately                five        months.         Kimma testified             that       she
did so because she did not have adequate                                    housing        for     Jamie.           Jamie
testified         that     her mother             did not visit            her very        often        during       this
time    period.                Jamie     was removed              from     her      school        in     Oregon         and
registered          in a Washington                school.          When James picked                  up Jamie for
summer visitation,                 he discovered             that    Jamie was suffering                   from head
lice.       Jamie testified                that     she wanted to live                 with      her father             and
that    she had          met     friends         in Montana
        The record              supports         the District            Court's      conclusion            that        the
modification             in custody         was in Jamie's                best     interests           and that         the

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requisites          of 5 40-4-219(l)        cc), MCA, were met in the present               case.
We hold      that     the District      Court    did not err         in modifying    the prior
custody      arrangement.
       Affirmed.
       Pursuant        to Section      I,    Paragraph     3(c),     Montana Supreme Court
1988 Internal          Operating      Rules,    this   decision       shall   not be cited      as
precedent      and shall         be published     by its    filing     as a public       document
with   the Clerk         of the Supreme Court            and by a report        of its     result
to Montana Law Week, State                  Reporter     and West Publishing         Company.




We concur:



             Chief     Justice




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