                                                 No.    86-57

                 I N THE SUPREME COURT OF THE STATE OF MONTANA

                                                     1986




I N RE THE MARRIAGE OF

GILLIAN E.     HELSEL,

                     P e t i t i o n e r and A p p e l l a n t ,

         and

JEFFREY T.     HELSEL,

                     R e s p o n d e n t and R e s p o n d e n t .




APPEAL FROM:         D i s t r i c t C o u r t of t h e F o u r t h J u d i c i a l D i s t r i c t ,
                     I n and f o r t h e C o u n t y of M i s s o u l a ,
                     T h e H o n o r a b l e J a m e s B. W h e e l i s , Judge p r e s i d i n g .


COIJNSEL OF RECORD:


         For A p p e l l a n t :

                     B r u c e B.   Barrett,        ASUM L e g a l S e r v i c e s , M i s s o u l a ,
                     Montana


         F o r Respondent :

                     S o l & Wolfe; Michael S o l , M i s s o u l a , Montana




                                                    S u b m i t t e d on B r i e f s :   June 2 0 , 1 9 8 6
                                                        Decided:       A u g u s t 26,    1986



Filed:




                                                    Clerk
Mr. Justice Fred J. Weber delivered the Opinion of the Court.

     Gillian Helsel, wife, filed a petition for dissolution
of marriage.     Jeff Helsel, husband, filed his response which
sought a declaration of invalidity of the marriage.           The
District Court for the Fourth Judicial District declared the
marriage   invalid.    We reverse and remand for appropriate
proceedings to consider the dissolution of marriage.
     The issues are:
     1.    Did the District Court err when it declared the
marriage of the parties invalid under    §   40-1-402, MCA, on the
basis of immaturity of the parties?
     2.    Did the District Court err in concluding that the
parties' marriage was invalid on the basis of fraud?
     The parties met on October 20, 1984 and married on
January    4,   1985, after   obtaining a marriage     license in
Missoula County.      Wife is a Canadian citizen.      On June 3,
1985, wife received a temporary visa which enabled her to
work in the United States.       On August 6, 1985, wife peti-
tioned the District Court for a dissolution of marriage.
Husband    filed his response which sought a declaration of
invalidity of the marriage.      The District Court granted the
declaration of invalidity.     Wife appealed.


    Did the District Court err when it declared the marriage
of the parties invalid under 5 40-1-402, MCA, on the basis of
immaturity of the parties?
     Section 40-1-402(1) (a), MCA, provides:

    (1) The district court shall enter its decree
    declaring the invalidity of a marriage entered into
    under the following circumstances:
         (a) a party lacked capacity to consent to the
    marriage at the time the marriage was entered into,
     either because of mental incapacity or infirmity or
     because of the influence of alcohol, drugs, or
     other incapacitating substances, or a party was
     induced to enter into a marriage by force or duress
     or by fraud involving the essentials of marriage;


     In the case at hand, the District Court concluded:

     6. The Court concludes that the parties were
     sufficiently immature to not understand the impli-
     cations    of    entering   into    the    marital
     relationship  ...
     7. The Court concludes that the parties were
     unable to sufficiently understand their own rela-
     tionship with one another, and were incapable of
     understanding the nature of the marital relation-
     ship they entered into. They both expressed what
     amounts to complete misunderstandings of each other
     the realization of which seemed to begin on the
     first day of the marital relationship.


     9. The marriage of the parties never contained the
     essentials of a marital relationship.
    As   5   40-1-402 (1)(a), MCA,   states, a declaration of
invalidity can be entered if a party lacked the capacity to
consent to the marriage because of mental incapacity or
infirmity.   Neither the findings of fact nor the conclusions
of law demonstrate a determination that either party lacked
the capacity to consent to their marriage.   Immaturity of the
parties and misunderstandings between the parties in and of
themselves do not establish the absence of capacity to con-
sent to the marriage.    We approve the statement in the Uni-
form Marriage and Divorce Act Commissioner's Notes:


    Courts construing the "lacks capacity to consent"
    language of Subsection (a) (1) [ (1)(a)1 will un-
    doubtedly continue to apply existing stringent
    standards by holding that a declaration of invalid-
    ity is appropriate only if the petitioner offers
    clear and definite evidence that one of the spouses
    lacked "sufficient mental capacity to understand
    intelligently the marriage contract. .   . .and the
       obligations it imposed upon him."      [citing Ertel v.
       Ertel (Ill. 1942), 40 N.E.2d 8 5 1 .
Uniform Marriage and Divorce Act Commissioner's Notes, S 208.
       We hold that the District Court erred when it declared
the marriage of the parties invalid under       §   40-1-402, MCA, on
the basis of immaturity of the parties.


       Did the District Court err in concluding that the par-
ties' marriage was invalid on the basis of fraud?
       In the findings of fact, the District Court stated:

       4. Respondent testified that the loving relation-
       ship he thought they had disappeared the first day
       of marriage, and their marriage was punctuated by
       fights, and representations by the Petitioner that
       they should each live their own lives, and pursue
       their own activities.
       5. Respondent signed a Petition to get his wife a
       green card, and stated that as soon as she received
       it, she threw him out of their apartment.
       6. Respondent testified that he does not feel a
       legitimate marital relationship existed.
       None of the findings of fact demonstrate that fraud
induced the marriage or that there was fraud involving the
essentials of the marriage as required by           §   40-1-402(1) (a),
MCA.    The District Court did not reach a legal conclusion
regarding fraud.      In addition, the record does not show that
fraud was present.      We conclude there is no basis to declare
the marriage invalid for fraud.
       We therefore reverse the decision of the District Court
and    remand   for   further proceedings     consistent with      this
opinion.




We Concur:
