                               No. 8 6 - 1 6 9
               IN THE SUPREME COURT OF THE STATE OF MONTANA
                                    1987




IN RE THE MARRIAGE OF
GARELD E. COX,
                Petitioner and Respondent,
       and
PENNY E. COX,
                Respondent and Appellant.



APPEAL FROM:    District Court of the Tenth Judicial District,
                In and for the County of Fergus,
                The Honorable Chan Ettien, Judge presiding.
COUNSEL OF RECORD:
      For Appellant:
                Richard J. Carstensen, Billings, Montana
       For Respondent:
                Torger Oaas, Lewistown, Montana



                                   Submitted on Briefs: Jan. 22, 1 9 8 7
                                      Decided:   March 24, 1 9 8 7 '
Mr. Justice Fred J. Weber delivered the Opinion of the Court.

      Penny Cox appeals from orders of the District Court of
the Tenth Judicial District, Fergus County, raising jurisdic-
tion and custody modification issues arising out of the
marriage dissolution and child custody hearing below.      We
affirm.
      The issues are:
      1. Was wife's notice of appeal filed too late to have
this Court review the jurisdiction issues raised?
      2. Did the District Court err in its jurisdiction
rulings?
      3. Did the District Court err in denying wife a modifi-
cation hearing?
      Gareld E. Cox (husband) and Penny E. Cox (wife) were
married in 1978 and had one child named Kenneth Cox (Kenneth)
of that marriage.     In January 1982, husband and wife filed
separate dissolution petitions with the District Court. The
petitions were consolidated in the case below.       In April
1982, wife also filed a petition for divorce and an affidavit
for the purpose of service by publication in a New Mexico
court, neither of which mentioned the pending Montana case.
In July 1982, the New Mexico court purported to dissolve the
parties' marriage and grant custody of Kenneth to wife.
Husband was not present or represented at that hearing. In
June 1983, the Montana District Court dissolved the marriage
between the parties and awarded custody of Kenneth to hus-
band.    Both parties were represented at that hearing, al-
though wife was not present.
      In December 1984, the New Mexico court concluded that
wife's affidavit for service by publication had been false
and misleading, that wife had not exercised sufficient inqui-
ry in attempting to locate husband, that the New Mexico
proceedings should have been stayed due to the pending Mon-
tana proceeding, that the New Mexico court had not obtained
jurisdiction over husband prior to the entering of its de-
cree, and that the New Mexico court was without authority to
enter its decree. The New Mexico court then set aside its
decree with directions to have Kenneth delivered to husband
pursuant to the Montana decree.
      Wife moved to vacate the Montana District Court's find-
ings, conclusions, and decree, essentially challenging juris-
diction of the District Court under SS 40-4-104 and 40-4-211,
MCA, and requesting a child custody modification. The Dis-
trict Court denied wife's motion on all grounds in two orders
filed in March and July of 1985.      In September 1985, the
District Court issued a subsequent order reaffirming its
earlier orders. In December 1985, wife again filed a motion
in the District Court challenging jurisdiction of the Dis-
trict Court and requesting a modification of the custody
order.    In a March 1986 minute entry, the District Court
concluded that it would not take testimony on the modifica-
tion or custody issues because those issues had already been
decided.   However, the court stated it would hear testimony
regarding visitation.     It is from this order that wife
appeals.
                              I
     Was wife's notice of appeal filed too late to have this
Court review the jurisdiction issues raised?
     Husband maintains that wife filed her notice of appeal
after the 30 day time limit for appeals found in Rule 5,
M.R.App.Civ.P.   Specifically, husband maintains that wife's
jurisdiction challenges were denied by a District Court order
on July 12, 1985 and her notice of appeal was filed on April
10, 1986. Thus, the 30 day time limit had passed and her
jurisdiction issues on appeal should be dismissed.
     Although the District Court decided the jurisdiction
issues in its July 1985 order, wife again raised this issue
in her motion of December 11, 1985.     It is a well settled
principle of law that lack of subject matter jurisdiction may
be raised at any time. Rule 12(h) (3), M.R.Civ.P., and Corban
v. Corban (1972), 161 Mont. 93, 504 P.2d 985. Therefore, the
wife had 30 days from the March 10, 1986, effective dismissal
of her subject matter jurisdiction motion to perfect her
appeal. Her notice of appeal was filed on time and thus we
will review the jurisdiction issues raised.

     Did the District Court err in its jurisdiction rulings?
     Wife maintains there were two jurisdictional rulings
made in error in this case.     First, wife argues that the
court did not have jurisdiction over the dissolution proceed-
ing pursuant to 5 40-4-104(a), MCA. Second, wife argues that
the court did not have jurisdiction over Kenneth pursuant to
§ 40-4-211, MCA.
     On the first issue, wife maintains that husband was not
a resident of Montana when he filed for dissolution and that
fraud was committed on the court by the husband when he filed
his petition for dissolution and stated:

     That petitioner has been a resident of the State of
     Montana for more than 120 days next proceeding the
     filing of this petition, however, he has not been
     physically present in this State for that period of
     time.
Wife maintains that this statement is false due to the amount
of time husband had been in New Mexico prior to the filing of
the petition. Apparently, husband had spent about a month
and a half in New Mexico during this 120 day period.
     We point out that 5 40-4-104(a), MCA, only requires the
court to find one of the parties was domiciled within Montana
"for 90 days next preceding - making - - findings"
                                the         of the
(emphasis added).    Both sides agree that husband was domi-
ciled in Montana for 90 days preceding the dissolution order
and findings. Therefore, the District Court concluded that
it had jurisdiction over the dissolution pursuant to
§ 40-4-104 (a), MCA.  We affirm that conclusion. There is no
evidence of fraud upon the court.
     On the second issue, wife argues that the District Court
did not have jurisdiction over Kenneth pursuant to
S 40-4-211 (1)(a)(ii), MCA, which provides in pertinent part:

     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:
          ...
          (ii) had been the child's home state within 6
     months before commencement of the proceeding and
     the child is absent from this state because of his
     removal or retention by a person claiming his
     custody or for other reason and a parent or person
     acting as parent continues to live in this state;
     Wife argues that under this statute New Mexico was the
proper forum to decide Kenneth's custody.        However, the
record shows that the conditions found in § 40-4-211, MCA,
have been met and that the District Court properly had juris-
diction over the child custody proceeding.       After having
lived in Montana for several years, wife and Kenneth went to
New Mexico on August 27, 1981. Husband filed for the disso-
lution of the marriage, asking for the custody of Kenneth, on
January 27, 1982. Thus, Montana was Kenneth's "home state
within 6 months before commencement of the proceedings."
Section 40-4-211, MCA.    Second, there is no question that
Kenneth was absent from the state because of his retention by
wife who was claiming his custody.            Therefore, the
requirements found in S 40-4-211, MCA, have been satisfied
and the court had jurisdiction over the child custody pro-
ceeding pursuant to that statute.
     Finally, wife asserts that jurisdiction should be de-
clined pursuant to S 40-7-109(1), MCA, which provides:

    If the petitioner for an initial decree has wrong-
    fully taken the child from another state or has
    engaged in similar reprehensible conduct, the court
    may decline to exercise jurisdiction if this is
    just and proper under the circumstances.
Wife alleges that husband wrongfully took Kenneth from New
Mexico and brought him to Montana.      The record does not
demonstrate a wrongful taking.    The actions of the father
taking Kenneth to Montana from New Mexico do not in and of
themselves demonstrate a wrongful taking. Section 40-7-109,
MCA, is discretionary.   The District Court concluded there
was not a wrongful taking and assumed jurisdiction.      We
cannot find an abuse of its discretionary power by the Dis-
trict Court.   Accordingly, we affirm the District Court's
conclusion that it had jurisdiction over the child custody
proceeding.
                            111
     Did the District Court err in denying wife a modifica-
tion hearing?
     Wife argues she is entitled to another hearing to con-
sider whether the custody decree should be modified pursuant
to S 40-4-219(1), MCA, which provides:

    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 :
            (a) the custodian agrees to the modification;
            (b) the child has been integrated into the
     family of the petitioner with consent of the
     custodian;
            (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; or
            (dl the child is 14 years of age or older and
     desires the modification.
Wife recognizes that the modification is discretionary with
the District Court, but believes new facts have been present-
ed that show Kenneth's "present environment endangers seri-
ously his physical, mental, moral or emotional health."
Although wife was represented by counsel in the dissolution
hearing on June 20, 1983, wife was not present and no evi-
dence was presented from her viewpoint as to the best inter-
ests of Kenneth.     Wife maintains that various affidavits
filed by her in 1985 and 1986 provide the necessary factual
basis for the court to hold a hearing on the modification of
custody. In particular she refers to a child psychologist's
report.
     Section 40-4-220, MCA, provides that the court "shall
deny the motion unless it finds adequate cause for hearing
the motion is established by the affidavits     . . . "   The
affidavits provided by wife essentially state that Kenneth
has been moved about a number of times by his father, that he
has had his school interrupted, and that he has spent extend-
ed periods of time with his grandmother. The husband coun-
tered with affidavits which indicate Kenneth is presently
living in a healthy environment and is a "cheerful" child.
The psychologist's report does not recommend a custody ar-
rangement, but does clearly show that the custody litigation
over Kenneth is having an adverse affect on him. We note the
concerns of the psychologist with regard to Kenneth ' s hyper-
activity and his recommendation that Kenneth be reexamined at
the Child Study Center. For their assistance, we call this
to the attention of both parties.
     After careful consideration, we conclude the District
Court has not abused its discretion in denying the motion for
a modification hearing.
                                    /

     Affirmed.



We Concur:




         Justices
           IN THE SUPREME COURT OF THE STATE OF
                           No. 86-169
                                                      ' ',   +,;   2 'j.297
IN RE THE MARRIAGE OF
GARELD E. COX*
          petitioner and Respondent,
                                             1
     and                                     1       O R D E R
PENNY E. COX,
          Respondent and Appellant.


     P,znny E. Cox, respo~dentand appellant, has petitioned
for rehearing in this matter.      After careful consideration of
each argument made, we conclude that our opinion dated March
-7.1, 1987, should be amended by changing the first paragraph

                                                 -
after the issues were stated. on page 1 of the opinion to
read:

           Gareld E. Cox (husband) and Penny E. Cox
      (wife) were married in 1978 and had one child named
     Kenneth Cox (Kenneth) of that marriage. In January
     1982, husband filed a dissolution petition with the
     District Court and wife filed a petition for custo-
     dy of minor child with the District Court.       The
     petitions were consolidated in the case below. In
     April 1982, wife also*- filed a petition for divorce
     and an affidavit for the purpose of service by
     publication in a New Mexico court, neither of which
     mentioned the pending Montana case. In July 1982,
     the New Mexico court purported to dissolve the
     parties' marriage and grant custody of Kenneth to
     wife.    Husband was not present or represented at
     that hearing.    In June 1983, the Montana District
     Court dissolved the rriarrjage between the parties
     and awarded custody of Kenneth to husband.      Both
     parties were represented at that hearing, although
     wife was not present.

In all other r e s p e c B the petition for rehearing is denied.
     DATED this       day of May, 1987.
                                                                              C l
                                                                              '--\


                                         Chief Justice



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