                                                                                                April 5 2016


                                           DA 15-0524
                                                                                             Case Number: DA 15-0524

                   IN THE SUPREME COURT OF THE STATE OF MONTANA

                                           2016 MT 81



IN RE THE PARENTING OF:

M.M.K.,

               A Minor Child,

MARGARET AMBROSE,

               Petitioner and Appellant,

         and

BRITNEY NICOLE KERLEE,
n/k/a BRITNEY KUTIL,

               Respondent and Appellee.



APPEAL FROM:            District Court of the Eighth Judicial District,
                        In and For the County of Cascade, Cause No. BDR-2013-374
                        Honorable Jeffrey M. Sherlock, Presiding Judge


COUNSEL OF RECORD:

                 For Appellant:

                        Barbara E. Bell, Marra, Evenson & Bell, P.C., Great Falls, Montana

                 For Appellee:

                        Andrew T. Newcomer, Ugrin, Alexander, Zadick & Higgins, P.C.,
                        Great Falls, Montana


                                                     Submitted on Briefs: March 2, 2016
                                                                Decided: April 5, 2016


Filed:

                        __________________________________________
                                          Clerk
Chief Justice Mike McGrath delivered the Opinion of the Court.


¶1    Margaret Ambrose appeals from the District Court’s Findings of Fact,

Conclusions of Law and Order dated July 23, 2015. We affirm.

¶2    We restate the issue on appeal as follows:

      Did the District Court abuse its discretion in concluding that Montana is an
      inconvenient forum in which to determine whether Ambrose has a parental interest
      as to M.M.K., pursuant to § 40-7-108, MCA?

                FACTUAL AND PROCEDURAL BACKGROUND

¶3    Britney Kerlee (Kutil) is the mother of M.M.K., who was born in Great Falls,

Montana, in April 2011. M.M.K.’s father has not been involved in her life. In June 2012

when M.M.K. was just over a year old, Kutil reached an agreement with Ambrose under

which Ambrose would provide temporary care for M.M.K. Kutil knew Ambrose through

Ambrose’s daughter, but Ambrose is not related to Kutil or to M.M.K. Kutil executed a

six-month power of attorney in favor of Ambrose to allow her to care for M.M.K.

¶4    When the power of attorney expired Kutil and Ambrose disagreed as to who

should have custody of M.M.K. and Ambrose refused to return the child. The parties

disagree about the reasons for this conflict, and whether Ambrose wrongfully retained

custody of M.M.K. On June 5, 2013, Kutil recovered physical custody of M.M.K. from

Ambrose, with the help of volunteer attorneys, several law enforcement agencies and the

Montana Department of Public Health and Human Services, Child Protective Services.

Also in June 2013 Kutil, M.M.K., and her husband (they were married in July 2013 and

he is not M.M.K.’s father) moved to Oklahoma (1300 miles from Great Falls) where he

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could find work and where he had family members. Kutil and her husband now have a

child together, born in Oklahoma.

¶5     Kutil, M.M.K., Kutil’s husband, and their child have lived in Oklahoma

continuously since June 2013. Kutil is a stay-at-home mother providing care for the two

children. Kutil commenced an action in Oklahoma courts against M.M.K.’s biological

father, seeking to establish paternity, child support, and a parenting plan.

¶6     On June 10, 2013, Ambrose commenced the present case in the Montana Eighth

Judicial District Court in Cascade County by filing a Petition for Parental Interest

Determination pursuant to § 40-4-211(4)(b), MCA. Ambrose filed a concurrent Motion

and Brief for Interim Order in which she requested that the District Court grant her

interim custody of M.M.K. pending the outcome of the litigation. Kutil responded to the

petition requesting that it be denied; that she be awarded costs and attorney fees; and that

Ambrose be ordered to pay her travel expenses from Oklahoma for attending any

required court proceedings in Montana.

¶7     The District Court referred the case to its Standing Master. In March 2014 the

Master held a hearing and found that Ambrose had not established that any emergency

situation existed regarding M.M.K. sufficient to justify awarding her interim custody. In

July 2014 the Master held another hearing on pending motions, including Kutil’s request

that the District Court decline to exercise jurisdiction over the case.

¶8     The Master concluded that the District Court had jurisdiction to determine

Ambrose’s parental interest petition because M.M.K. lived in Montana at the time it was

filed, and had lived in Montana for two years before that. The Master determined that the
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dispute should be determined in “stages,” the first being whether Ambrose was entitled to

a parental interest as to M.M.K. Kutil filed objections to the Master’s decision and the

District Court conducted a hearing in July 2015. The District Court adopted the Master’s

findings of fact, except for correcting one date, but reversed a number of the Master’s

conclusions of law. The District Court reversed the Master’s conclusion that the parental

interest determination should be made first, in Montana, and determined instead that

Montana was an inconvenient forum and should decline to exercise jurisdiction over the

matter.

¶9       Ambrose appeals.

                              STANDARD OF REVIEW

¶10      A district court may refer a matter to a standing master, who may conduct

necessary proceedings, rule upon the admissibility of evidence, receive testimony under

oath and issue orders that are subject to review by the district court upon objection of a

party.    Section 3-5-124, MCA; M. R. Civ. P. 53.       Unless the district court orders

otherwise, a master must issue findings of fact and conclusions of law upon matters

referred by the district court. Section 3-5-126(1), MCA. A party may object to the

master’s findings and conclusions and the district court, after hearing, may adopt the

master’s report or may modify or reject them in whole or in part; may receive further

evidence; or may recommit to the master with further instructions. Section 3-5-126(2),

MCA. A district court may modify the master’s findings or conclusions only upon

objection by a party. In re Marriage of McMichael, 2006 MT 237, ¶ 15, 333 Mont. 517,

143 P.2d 439.
                                            4
¶11    In non-jury actions the district court must accept the master’s findings of fact

unless they are clearly erroneous, M. R. Civ. P. 53(e)(2). The district court may conduct

plenary review of the master’s conclusions of law to determine whether they are correct.

Heavirland v. State, 2013 MT 313, ¶ 14, 372 Mont. 300, 311 P.3d 813. This Court

reviews a district court’s action de novo to determine whether it applied the proper

standard of review to the master’s findings of fact and conclusions of law. In re the

Parenting of G.J.A., 2014 MT 215, ¶ 11, 376 Mont. 212, 331 P.3d 835.

¶12    This Court reviews a district court’s decision on an issue of inconvenient forum to

determine whether the district court abused its discretion. In re the Marriage of Irwin,

259 Mont. 176, 179, 855 P.2d 525, 527 (1993); In re the Paternity and Custody of B.E.S.,

1998 MT 190, ¶ 13, 290 Mont. 188, 963 P.2d 449.

                                      DISCUSSION

¶13    Did the District Court abuse its discretion in concluding that Montana is an
       inconvenient forum in which to determine whether Ambrose has a parental
       interest as to M.M.K. pursuant to § 40-7-108, MCA?

¶14    Ambrose commenced this proceeding to establish that she has a parental interest

as to M.M.K., and that she should be awarded custody. Under Montana law, a district

court may award “a parental interest” in a child to a person who is not a natural parent as

provided in § 40-4-228, MCA. The person petitioning for the award must show by clear

and convincing evidence that the natural parent has “engaged in conduct that is contrary

to the child-parent relationship”; that the petitioner has established a child-parent

relationship with the child; and that it is in the best interest of the child to continue that

relationship. Section 40-4-228(2), MCA. A district court’s determination of the best
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interest of the child is broadly based upon “all relevant parenting factors,” guided by the

considerations in § 40-4-212, MCA. Neither the Standing Master nor the District Court

has determined whether Ambrose qualifies for an award of parental interest.

¶15    The issue is not whether the Montana court has jurisdiction over Ambrose’s

petition, but whether it should exercise that jurisdiction.         Montana courts have

jurisdiction to determine parenting issues if this State was the home state of the child at

the commencement of the action or had been within six months. Section 40-4-211(1)(a),

MCA. A Montana court may also assume jurisdiction over parenting issues when it is in

the best interest of the child; when the child, the parents or “one contestant” have

significant contacts here; and when there is substantial evidence in this State concerning

the child’s condition and needs. Section 40-4-211, MCA.

¶16    However, a court that has jurisdiction to make a child custody determination may

decline to exercise that jurisdiction if it determines that it is “an inconvenient forum

under the circumstances” and the court of another state provides a more appropriate

forum. Section 40-7-108, MCA. Whatever right Ambrose may have under § 40-4-211,

MCA, is subject to the District Court’s determination of inconvenient forum.

¶17    A court considering this issue must consider “all relevant factors,” including:

               (a) whether domestic violence has occurred . . . ;
               (b) the length of time that the child has resided outside this state;
               (c) the distance between the court in this state and the court in the
       state that could assume jurisdiction;
               (d) the relative financial circumstances of the parties;
               (e) any agreement of the parties as to which state should assume
       jurisdiction;


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              (f) the nature and location of the evidence required to resolve the
      pending litigation, including the testimony of the child;
              (g) the ability of the court of each state to decide the issue
      expeditiously and the procedures necessary to present the evidence; and
              (h) the familiarity of the court of each state with the facts and issues
      in the pending litigation.

Section 40-7-108(2), MCA. The purpose of these provisions is to “assure that any

litigation involving minor children occurs in the state where the child has the closest

connection and where significant evidence concerning the child’s care, protection,

training, and personal relationships is most readily available.” Marriage of Irwin, 259

Mont. at 178, 855 P.2d at 526. The District Court determined that Montana was an

inconvenient forum to determine Ambrose’s petition, and we review that decision to

determine whether the District Court abused its discretion. Marriage of Irwin, 259 Mont.

at 178, 855 P.2d at 527.

¶18   While considering the factors involved in determining the inconvenient forum

issue, the District Court concluded that domestic violence was not an issue and that

M.M.K. had lived in Oklahoma a “substantial portion of her young life.” Therefore, the

District Court concluded that evidence of M.M.K.’s life in Oklahoma is the primary

evidence concerning what is in her best interest, and is “particularly relevant to the

determination of the appropriate parenting plan.” These considerations weighed in favor

of a determination that Montana is an inconvenient forum.




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¶19    The District Court determined that the 1300 miles between Oklahoma and

Montana along with Ambrose’s superior financial position1 both weighed in favor of

determining that Montana is an inconvenient forum. The District Court concluded that

since no Montana court had made any substantive findings regarding the parental interest

determination or a parenting plan for M.M.K., there was no evidence as to which state’s

courts could most expeditiously consider the case. The District Court noted that Kutil

offered to stipulate to the application of Montana law in the Oklahoma proceedings. The

District Court reiterated the amount of time M.M.K. has spent in Oklahoma, her lack of

contact with Ambrose or Montana since June 2013, and that the Oklahoma court would

have more relevant information about the facts.

¶20    Based upon its analysis of the facts under § 40-7-108, MCA, the District Court

concluded that the applicable factors all weighed in favor of a determination that

Montana should decline to exercise jurisdiction.

¶21    Ambrose recognizes that Oklahoma and Montana have both enacted the Uniform

Child Custody Jurisdiction and Enforcement Act, Title 40, chapter 7, MCA.                    She

contends, however, that the District Court’s decision was an abuse of discretion because,

she asserts, Oklahoma does not provide a statutory basis for a non-relative to assert a

parental interest in a child similar to § 40-4-211(6), MCA. The parties substantially

disagree about whether Oklahoma law would allow Ambrose to assert custody or


       1
          Ambrose is a civilian contractor for the United States Air Force. She refused to provide
personal financial information during discovery, but the District Court determined that she was
in a “far more secure financial position” than Kutil, who has two small children and qualifies for
state medical assistance in Oklahoma.
                                                  8
visitation rights as to M.M.K. Ambrose does not cite any Oklahoma law demonstrating

that she would not be heard in that case, while Kutil cites several Oklahoma cases that

could indicate a right for non-relatives to assert a parental-type interest in a child. We

need not determine that choice of law issue because this appeal involves an issue of

inconvenient forum.

¶22    Ambrose characterizes Kutil’s relocation to Oklahoma as “forum shopping” that is

contrary to the purposes of the Uniform Child Custody Jurisdiction and Enforcement Act.

We find no basis to support this accusation of forum shopping. Kutil’s reasons for

moving to Oklahoma are plain in the record, and she has offered, on the record, to

stipulate to the application of Montana law in Oklahoma proceedings. Further, these

choice of law issues are not before the Court. The issue here is whether the facts

demonstrate that Montana is an inconvenient forum for determining what is in the best

interest of M.M.K.    Holding proceedings in Montana to determine M.M.K.’s future

would place a heavy burden of time, expense, travel and dislocation upon Kutil and her

family.

                                    CONCLUSION

¶23    Regardless of whether Ambrose can or cannot assert a parental interest in

Oklahoma, the issue here is the best forum for determining the best interest of the child.

The District Court carefully considered the recommendations of the Standing Master and

the applicable facts and concluded that the best forum to resolve M.M.K.’s future is not

in Montana. The District Court properly applied the facts to the law and did not abuse its

discretion.
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¶24   Affirmed.


                               /S/ MIKE McGRATH


We Concur:

/S/ BETH BAKER
/S/ LAURIE McKINNON
/S/ PATRICIA COTTER
/S/ JAMES JEREMIAH SHEA




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