                                 No. 83-491
                  IN THE SUPREME COURT OF THC STATE OF MONTANA
                                      1984




IN RE THE P.IARRIAGE OF

MICHAEL T. CONNOLLY,
                 Petitioner and Respondent,
         -vs-

JUDY RAE CONNOLLY,
                  Respondent and Appellant.




APPEAL FROM:       District Court of the First Judicial District,
                   In and for the County of Lewis & Clark,
                   The Honorable Henry Loble, Judge presiding.


COUNSEL OF RECORD:


         For Appellant:
                  John L. Hollow, Helena, Montana
         For Respondent :
                  Jeffrey M. Sherlock; Hull   &   Sherlock, Helena,
                  Montana


                                                        -.-   ----      --
                                  Submitted on Briefs:               January 19, 1984
                                                  Decided:           April 19, 1984


Filed:
            l,iJ 1 3 t984
               %(




                                 Clerk
Mr. Justice John C.                 Sheehy delivered the Opinion of the
Court.

      Judy Rae Connolly appeals from an order of the District
Court, First           Judicial District, Lewis and                Clark County,
modifying        the    parties'          dissolution     decree      and     awarding
Michael     T.    Connolly          custody of         the parties'     four minor
children.
      On November 5, 1-980, the District Court issued a decree
of dissolution dissolving the marriage of Judy Rae Connolly
and   Michael          T.    Connolly.           The    decree   of     dissolution
incorporated a property settlement agreement which contained
provisions       relating           to    the   support    and   custody       of   the
parties' four minor children.                   The parties agreed to a joint
custody arrangement, with Judy Connolly retaining custody of
the   two   younger children and Michael                      Connolly retaining
custody of the two older children.                      It was also agreed that
the noncustodial parent have reasonable visitation riqhts as
to the children not in his or her custody.                         After entry of
the decree, Judy Connolly returned to Gillette, Wyoming, with
the two younger children and Michael Connolly remained in
Helena, Montana, with the two older children.
      On January 5, 1983, Michael Connolly filed a petition in
the District Court requesting modification of the custody
arrangements.               Based    on    certain      circumstances which         he
alleged     seriously          endangered       the     two   younger       children's
physical, mental, moral or emotional health, Michael Connolly
requested that he be awarded sole custody of the two younger
children.        The District Court then ordered the Lewis and
Cl-ark County Welfare Department to conduct an investigation
into the custodial suitability of the parties.                        The District
Court also requested that the Sixth District Court of the
State of Wyoming conduct a hearing in Gillette, Wyoming, to
gather evidence as to the propriety of the petition for
rnodification of custody.          The transcript of the hearing was
forwarded to Montana and subseqently adopted as part of the
record in this case.
      The District Court heard final argument in this matter
                                               .
on three separate days in July and August of 1983.                   An
opinion and order was issued on September 15, 1983, wherein
the court ordered the decree of dissolution modified with
respect     to   the   custody    arrangements and   awarded   Michael
Connolly so1.e custody of the parties' four minor children.
Judy Connolly filed a notice of appeal on September 22, 1983,
from the order and opinion awarding Michael Connolly custody
of the children.        On December 2, 1983, she filed a notice of
appeal from a March 10, 1983 order and opinion denying a
motion to dismiss the cause for lack of iurisdiction.
      The following issues are before this Court on appeal:

      1.     Whether     the District Court had      jurisdiction to
modify the original custody award.
      2.    Whether there is substantial evidence to support the
District Court's conclusion that a modification of custody
would be in the best interest of the two younger children.
      3.    Whether the testimony of a Helena social worker was
properly admitted into evidence.
      The Uniform Chil-d Custody Jurisdiction Act wa.s adopted
by   the Montana       legislature in 1977.     Under the Act, and
section     40-4-211, MCA,       certain requirements must     he   met
before a court has jurisdiction to make a determination in
child custody matters.           These requirements are set forth as
follows :
     " (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 :
     " (a) this state:
     "(i) is the home state of the child at the time of
     commencement of the proceedings; or
     " (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;
     or
     "(b) it is in 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 ava.ilable in this state substa.ntia1
     evidence concerning the child's present or future
     care,    protection,   training,    and    personal
     relationships; or
     "(c) the child is physically present in this state
     and:
     " (i) has been abandoned; or
    "(ii) it is necessary in an emergency to protect
    him because he has been subjected. to or threatened
    with mistreatment or abuse or is neglected or
    dependen.t or
             ;

    "(d) (i) no other state has jurisdiction under
    perequisites substantially j n accordance with
                                    .
    subsections (1) (a), ( 1 ) (b), or (1)(c) of this
    section or another state has decl-ined to exercise
    jurisdiction on the ground that this state is the
    more appropriate forum to determine custody of the
    child; and
     "(ii) it is in his best int.erest that the court
     assume jurisdiction."
    Each requirement sets forth an alternative basis for a
court to assert jurisdiction.   In the Commissioners' Note to
section 40-7-104, MCA, it is stated th-at:
    "Paragraphs    (1)  and  (2) of    subsection   (a)
    [40-4-211(1) (a)(i) and (ii)] establish the two
    major bases for jurisdiction. In the first place,
    a court in the child's home state has jurisdiction,
      and secondly, if there is no home state or the
      child and his family have equal or stronger ties
      with another state, a court in that state has
      jurisdiction     ...
      "Paraqraph (3) of subsection (a) C40-4-211(1.) (c)1
           - -                                               .   .

      retains and affirms parens patriae jurisdiction,
      usually exercised by a juvenile court, which a
      state must assume when a child is in a situation
      requiring immediate protection
      extraordinary   jurisdiction  is
                                             . . .
                                         reserved
                                                    This
                                                      for
      extraordinary circumstances      ...
      "Pa-ragraph (4) of subsection (a) [40-4-211(1)(d)1
      provides a final basis for jurisdiction which is
      subsidiary in nature. It is to be resorted to only
      if no other state could, or would, assume
      jurisdiction under the other criteria of this
      section. "
      The   District    Court   in   this case relied on     section
40-4-211(1) (b), MCA, as its basis for jurisdiction.             Under
section 40-4-211(1) (b), the court is required to find first,
that the child and his parents or the child and at least one
contestant have a significant connection with this state, and
second, that there is available in this state substantial
evidence    concerning   the    child's   present or    future care,
protection, training, and personal relationships.
      The District Court found that because Michael Connolly
lives and works in Helena he has a. "significant connection"
with this forum.       The District Court further found that the
presence of Michael Connolly and the two older children in
Helena provides a significant connection with this forum for
the two younger children.
      In reaching its conclusion that the above-cited facts
are   sufficient   to    establish    the   necessary   "significant
connections," the District Court relied on the case of Reeve
v. Reeve (Fl. 1980), 391 So.2d 789.
      In Reeve, a mother sought modification of a dissolution
decree awarding custody of the minor daughter to the father.
The father a.nd the child were then living in New Jersey and
the mother was living in Florida.              The court applied the
jurisdictional requirements of         the Uniform Child             Custody
Jurisdiction Act and found that:
    "Section 61.1308(1) (b) does not require that a
    child's only significant connection be with the
    State of Florida in order for jurisdiction of the
    Florida court to attach.       [Citation omitted.]
    Although the child has resided in New Jersey since
    July, 1975, the wife has apparently resided in
    Florida since the dissol.ution and has not lost
    contact with the child, having visited with her in
    October, 1976, December, 1978, and the summer of
    1979. Under these circumstances, the child and. one
    contestant, the wife, have a significant connection
    with this state." 391 So.2d at 791.
     The District Court further relied on Reeve to find that
substantial evidence existed in Montana as to the children's
care, protection, training, and personal relationships.                 The
court in Reeve held that:
     "As to the second part of the test, for purposes of
     determining subject matter jurisdiction under
     Section 61.1308, it is not the relative wealth of
     evidence available in either state that is at
     issue, rather, whether there exists in this state
     substantial evidence regarding the child's present
     or future care, protection, training, and personal
     relationships.     While the bulk of evidence
     regarding the child's present care, letc.,] may now
     exist in New Jersey, there nevertheless exists in
     Florida. substantial evidence regarding her future
     care, [etc.,1 since the wife, who is seeking
     permanent custody resides in this state."       391
     So.2d at 791.

     The   District   Court    found     the       situation    in    Reeve
analogous to the case at hand and determined that because
Michael    Connolly   has    established       a    home   in    Montana,
substantial evidence    as    to   the   children's        future     care,
protection, training, and personal relationships is available
in this state.
     Judy Connolly, however, contends that the result reached
by the District Court cannot be reconciled with the decision
in Strouf v. Strouf (1978), 176 Mont. 406, 578 P.2d 746.                 In
Strouf,    the   Court     held     that    the   District       Court   lacked
jurisdiction to         modify    the     custody   agreement      previously
agreed    to    by   the   parties.         The   Court    found    that      the
requirements of subsections (1)(a), (c), and                     (d) were not
applicable, and that jurisdiction could not be based                           on
(1)(b) because under subsection (2) the physical presence in
this   state of      the    child    or    the    child    and    one    of   the
contestants is not alone sufficient to confer jurisdiction on
a court of this state to make a child custody determination.
Such is not the case here.                 The ties that bind the two
younger children to Wyoming are no stronger than the ties
which bind them to Montana.             Although Judy Connolly and the
two younger child.ren live in Wyoming, the nztural father of
the children and their two older siblings live in Montana..
There is also substantial evidence available in Montana to
resolve the issues arising as to the children's future care,
protection, training, and personal relationships.                   In making
a custody determination, the court must examine both the
children's present environment and their future environment.
Therefore      substantial evidence         of    either    the    children's
present - future care, protection, training, and personal
        or
relationships may be the basis for asserting jurisdiction
under subsection (1)(b)(ii)         .     Allen v. Allen (Hawaii 1.981),
634 P.2d 609, 612; Reeve v. Reeve (Fl. 1980), 391 So.2d 789,
791; Nelson v. District Court (Colo. 1974), 527 P.2d                          811,
814.     Bodenheimer, The Uniform Child Custody Jurisdiction
Act,
-      22 Vand.L.Rev.      1207, 1227 (1969).
       Having    thus   determined that the District Court had
jurisdiction to consid.er the petition for modification, we
must now look to whether there is substantial evidence to
support the court's findings and conclusions that a change in
custody is in the best interest of the two vounger children.
The District Court based it authority to award custody of the
two     younger   children   to   Michael   Connolly   on   section
40-4-219 (1)(c), MCA.     Section 40-4-219 (1)(c) provides that:
      "(I.) 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      .. .
                                                      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.   . ."
      What is, or wha.t is not in the best interest of the
child depends upon. the facts and circumstances of each case.
The responsibility of the District Court is to sift through
these    contradictory   facts and make     an   equitable custody
decision.    Because the court has the opportunity to observe
the demeanor of the witnesses on the stand, j t stands in a
                                             .
better position to draw the fine lines inherent in custody
matters.     Therefore, its decision will not he disturbed
absent a clear showing that the court abused its discretion
in making the custody decision.      Brooks v.    rooks (1976), 171
Mont. 132, 1.34, 556 P.2d 901, 902; In re the Adoption of
Piery (1974), 164 Mont. 353, 356-57, 522 P.2d 1377.
      The District Court found. that Judy Connolly left the two
younger children, ages 6 and 5, alone and unattended on.
numerous occasions when she "couldn't find a babysitter."
Durinq the time that the two older children were visiting,
she left a.11 four children alone, with the oldest child, age
10, in charge of the others.          The court found that Judy
Connolly does not show any remorse for leaving the children
unattended and does not feel that to do so is dangerous to
the children.       This js contrary to the testimony of a number
of expert and lay witnesses, who testified that the practice
of   leaving young       children of their age alone is highly
dangerous.
       The District Court also found that Judy Connolly has an
intimate, sexual relationship with a married man who spends
the night with her up to five times a week.              When he is not
with Judy, he stays with his wife and children at their
residence in Gillette.          There was also indication in the
testimony that this man uses obscene and abusive language in
the presence of the children.
       One of the expert witnesses at trial further testified
that it would be in the best interest of the children if they
were allowed to grow up together.
       From these findings, the District Court concluded that
the children's present environment serious1.y endangers their
physical, mental, moral, and emotional health and that the
harm   likely to be caused by a change of environment is
outweighed by its advantages to them.             We agree.      Michael
Connolly has remarried and can provide a safe and stabl-e home
environment for the children.         It appears that Judy Connolly
cannot.
       Judy   Connolly    contends, however,      that     the   District
Court's conclusion that a change in custody is in the best
interest      of   the   children   must   be   reversed   because   the
District Court admitted into evidence prejudicial material
and testimony.      Judy Connolly objects to the admission of the
report and testimony of a Helena social worker, who, after
commenting on both the Montana environment and the FJ~oming
environment, recommended that sole custody of the children be
awarded to Michael Connolly.
       Although    the    socia.1 worker's observations as to the
Wyoming       environment      were        largely   based    on        information
received from Michael Connolly and may therefore not have
been based on information of a type reasonably relied on by
those in his field as required under Rule 703, M.R.Evid.,
there is no evidence that the District Court relied upon the
social worker's observations and                   comments on the Wyoming
environment      in making          his decision as to custody.                The
findings of the court as to the Wyoming environment are
supported by other evidence in the record. and could easily
have been based on such evidence.                     The objection is also
inapplicable to the social worker's observations as to the
Montana     environment        as    these    observations        are    based. on
reliable and reasonable information.                  It is well-settled in
Montana that, in a civil case, such as the one here, which is
tried before the court without a jury, there is a presumption
that    the     trial    court       has    disregarded      all    inadmissible
evidence in reaching its decision.                   In the Matter of Moyer
(1977), 173 Mont.           208, 211, 567 P.2d             47; O'Sullivan v.
Simpson       (1949),    123     Mont.      314,     212   P.2d    435.       This
presumption has not been overcome.
       The decision of the District Court awarding sole custody
of the parties' four minor children to Michael Connolly is
affirmed.
We Concur:
