                             NO.    91-262

           IN THE SUPREME COURT OF THE STATE OF MONTANA
                                   1992


IN RE THE MARRIAGE OF
CHRISTOPHER KEVIN McKINNON,
           Petitioner and Appellant,
     and
IVY THERESE MCKINNON,
           Petitioner and Respondent.


APPEAL FROM:    District Court of the Eighth Judicial District,
                In and for the County of Cascade,
                The Honorable Joel G . Roth, Judge presiding.


COUNSEL OF RECORD:
           For Appellant:
                Timothy J. McKittrick; McKittrick L a w Firm, P.C.,
                Great Falls, Montana
           For Respondent:
                Barbara Bell; Bell and Marra, Great Falls, Montana


                             Submitted on Briefs:       October 24, 1991
                                             Decided:   January 28, 1992
Filed:



                                   Clerk
Justice Karla M. Gray delivered tie Opinion of the Court.


        Christopher McKinnon appeals from an Order of the District
Court ofthe Eighth Judicial District, Cascade County, granting Ivy
McKinnon's Motion for Relief from Final Judgment.              We affirm in
part, reverse in part and remand.
        The dispositive issues on appeal, as stated by this Court,
are :
        I.    Whether the District Court erred in concluding that 5 40-
6-135,       MCA, relates only to relinquishments for purposes of
adoption.
        11.    Whether the court had jurisdiction to rule on the Motion
for New Trial or for Modification of Custody or for Relief from
Final Judgment.
        The relevant facts of this case are procedural in nature. On
July 3, 1990, the appellant, Christopher McKinnon (Chris), and the
respondent, Ivy McKinnon          (Ivy), signed a joint petition           for
dissolution of their marriage. Ivy also signed a relinquishment of
parental rights concerning the parties' minor son.                  The action
proceeded on the court's uncontested calendar and the District
Court entered a Decree of Dissolution on July 25, 1990, granting
sole     custody    of   the   minor   child   to   Chris   based    on   Ivy's
relinquishment of parental rights.
        On July 31, 1990, a Motion to Set Aside Judgment and Motion
for New Trial were filed on Ivy's behalf.           The District Court, in
an Order Clarifying Status of Motions dated December 10, 1990,

                                        2
determined that the motions were deemed denied by operation of law
on September 14, 1990, for not having been ruled on within the time
required by Rule 59, M.R.Civ.P.,   and that it had lost jurisdiction
of the case at that time.
      A Motion for New Trial or for Modification of Custody or
Relief from Final Judgment was filed on Ivy's behalf on January 25,
1991, together with accompanying affidavits.         Chris responded to
the legal arguments upon which the motion for new trial or for
relief from judgment was based, but did not respond specifically to
the motion    for modification     of   custody    or    file    responsive
affidavits.
      The District Court ruled on March 18, 1991, that the January
25   Motion for Relief from Judgment was timely, that it had
continuing jurisdiction over the custody of the minor child
pursuant to 5 40-4-219, MCA, that the custody portion of the
dissolution decree was void        because      it was   based    on   Ivy's
relinquishment, and that Ivy was entitled to relief from final
judgment under Rule 6 0 ( b ) (4), M.R.Civ.P.     The court found that
5 40-6-135, MCA, applies only to adoptive placement situations. A

custody hearing was scheduled, but did not occur due to the filing
of this appeal.    The best interests of the minor child have not
been determined under 5 40-4-212, MCA.
                                   I.
     Whether the District Court erred in concluding that 5 40-6-
135, MCA, relates only to relinquishments for purposes of adoption.

      Christopher McKinnon relies on 5 40-6-135, MCA, as authority
for the relinquishment of parental rights in this case.                 That
                                   3
reliance is misplaced. Section 40-6-135, MCA, relates by its terms
to adoptions.    Specifically,   §   40-6-135 (1), MCA, applies to legal

relinquishments of parental rights in adoption situations: "A
parent or guardian who proposes to relinquish custody of a child
- puruoses of placing the child for adoution.
for                                                  ...   It   (Emphasis
added.)   The plain meaning of the language mandates the conclusion
that relinquishments authorized in 5 40-6-135, MCA, relate only to
adoptive situations.
     Chris relies on subsections numbered (2) and (5) in the 1989
version of 5 40-6-135, MCA:
          (2) Except as otherwise provided in this section,
     a relinquishment shall be by a separate instrument
     executed before a notary public.
     ...
          (5) Upon the filing of a properly and voluntarily
     executed relinquishment of a child by a parent or
     guardian, the court shall immediately issue an order
     terminating the rights of that parent or guardian to that
     child.   ...
He asserts that those subsections do not reference adoptive
situations.     It is a settled rule of statutory construction that
legislation must be read as a whole in order to ascertain the
legislative intent.    State v. Magnuson (1984), 210 Mont. 401, 682
P.2d 1365. Here, legislative intent is stated clearly in the plain
language of 5 40-6-135(1), MCA: the relinquishments authorized in
the statute pertain to adoption situations.             The fact that
unnecessarily repetitious and redundant language is not reiterated
in every subsection does not change the clearly stated purpose of
relinquishments under 5 40-6-135, MCA.         Therefore, the District

                                     4
Court’s legal conclusion is correct.           Steer, Inc. v. Dept. of
Revenue (1990), 245 Mont. 470, 803 P.2d 601. The statute relied on
by Christopher McKinnon as authority for Ivy’s relinquishment does
not apply to dissolution proceedings.           We affirm the District
Court’s conclusion.
                                    11.
     Whether the court had jurisdiction to rule on the Motion for
New Trial or for Modification of Custody or for Relief from Final
Judgment.

        Ivy’s January 25, 1991, Motion was for relief from final
judgment, a new trial          or modification of custody.         It was
accompanied by affidavits stating that harmful conditions existed
in the minor McKinnon’s environment. In its March 18, 1991, Order,
the court concluded that under the circumstances of the case the
motion had been filed within a “reasonable time” pursuant to Rule
60(b) (4), M.R.Civ.P., that the original grant of custody of the

minor    child   was   based   on   her   relinquishment   and   that   her
relinquishment was not legally possible.           Therefore, the court
concluded that the original custody award was void & initio and
granted    Ivy relief from the custody portion of            its earlier
judgment.     As discussed above, the District Court was correct in
its   legal   conclusion regarding the        relinquishment.      It was
incorrect, however, in granting Ivy relief from judgment pursuant
to Rule 60(b)(4), M.R.Civ.P.
        Rule 60(b) motions are subject to the same time period for
determination as Rule 59 motions for new trial or amendment of
judgment; absent a ruling within 45 days, the motion is deemed
                                      5
denied. Rule 60(c), M.R.Civ.P.      In such an event, the court loses
jurisdiction.   In re Marriage of Miller (1989), 238 Mont. 108, 776
P.2d 1218.
     Ivy filed her motion for relief from judgment, a new trial or
modification of custody on January 25,         1991.    The court ruled on
the motion on March 18, 1991, concluding in part that Ivy was
entitled to relief from final judgment pursuant to Rule 60(b)(4),
M.R.Civ.P.   More than 50 days having elapsed from the filing of
Ivy's motion, the portion of the motion seeking relief from final
judgment was deemed denied by operation of law; the court did not
have jurisdiction of that portion of the motion at the time it
issued its March 18, 1991, Order.          Therefore, we reverse the
portions of the District Court's Order determining the original
custody award void & initio and granting Ivy relief from final
judgment under Rule 60(b) ( 4 ) , M.R.Civ.P.
     The District Court also premised its March 18, 1991, Order on
its continuing jurisdiction over custody matters and its obligation
to determine the best interests of the minor child; it did not,
however, state specifically that it was setting the custody hearing
on the basis of Ivy's alternative motion for modification of
custody and supporting affidavits.       Section 40-4-220, MCA, sets
forth the requirements with which a party seeking modification of
custody must    comply before     a court may          grant a hearing on
modification; those requirements are jurisdictional. Marriage of
Anderson (1989), 240 Mont. 316, 320, 783 P.2d 1372, 1375.
     Under the unusual circumstances of this case, the record is

                                    6
not clear whether the District Court found Ivy's motion for
modification and affidavits sufficient to meet the jurisdictional
requirements of 5     40-4-220,   MCA.   The court should have an
opportunity to clarify whether it does, or does not, find adequate
cause for a hearing on Ivy's motion for modification under that
statute, and, if so, to proceed under that statute and   §   40-4-219,

MCA, to determine whether modification is appropriate.
       In summary, we affirm the District Court's determination that
§   40-6-135, MCA, relinquishments are not authorized in dissolution

proceedings, reverse its grant of relief from final judgment
pursuant to Rule 60(b) (4), M.R.Civ.P.,     and remand for further
proceedings on the motion for modification.
       Affirmed in part, reversed in part, and remanded for further
proceedings consistent with this opinion.




We concur:




                                   7
                                    January 28, 1992

                            CERTIFICATE OF SERVICE

I hereby certify that the following order was sent by United States mail, prepaid, to the
following named:


Timothy J. McKittrick
McKI'ITRICK LAW FIRM, P.C.
P.O. Box 1184
Great Falls, MT 59403-1184

BARBARA BELL
Attorney at Law
Suite 201, Liberty Center
9 Third Street North
Great Falls, MT 59401

                                               ED SMITH
                                               CLERK OF THE SUPREME COURT
                                               STATE OF MONTANA
