97-296




                                                                             No. 97-296

                                              IN THE SUPREME COURT OF THE STATE OF MONTANA

                                                                            1998 MT 146N



                                                                IN RE THE MARRIAGE OF

                                                             PAMELA JEAN HAXTON SNOW,

                                                                Petitioner and Cross-Appellant,

                                                                                        and

                                                                   ERIC MATTHEW SNOW,

                                                                      Respondent and Appellant.




                 APPEAL FROM:                   District Court of the Thirteenth Judicial District,
                                                         In and for the County of Carbon,
                                                The Honorable Robert W. Holmstrom, Judge presiding.


                                                                   COUNSEL OF RECORD:

                                                                                  For Appellant:

                                                        Eric Matthew Snow, Pro Se, Roberts, Montana

                                                                                 For Respondent:

                                                    Mark A. Bryan; Bryan & Atkins, Bozeman, Montana




                                                                               Submitted on Briefs: April 23, 1998

                                                                               Decided: June 9, 1998
                                                                               Filed:


                                                         __________________________________________
                                                                         Clerk

                    Justice W. William Leaphart delivered the Opinion of the Court.

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         ¶1   Pursuant to Section I, Paragraph 3(c), Montana Supreme Court 1996
   Internal Operating Rules, the following decision shall not be cited as precedent
      but shall be filed as a public document with the Clerk of the Supreme Court
    and shall be reported by case title, Supreme Court cause number, and result to
        the State Reporter Publishing Company and to West Group in the quarterly
                     table of noncitable cases issued by this Court.

¶2   Eric Matthew Snow (Eric), acting pro se, appeals from the decision of
the Thirteenth Judicial District Court, Carbon County, dissolving his marriage
to Pamela Jean Haxton Snow (Pam) and enforcing the parties' separation
agreement as to custody of the minor children. Eric maintains that Oregon has
jurisdiction over the dissolution and custody matters and that the Carbon
County District Court erred in exercising jurisdiction over these matters. As
a result, Eric moved to dismiss the dissolution action for lack of jurisdiction.
The District Court determined that since both parties reside in Montana,
Montana is the home state of the children pursuant to the Uniform Child
Custody Jurisdiction Act (UCCJA), and Oregon declined jurisdiction, it
properly exercised jurisdiction. In addition, the District Court determined that
the marriage was irretrievably broken, and that Pam's requests for modification
of visitation and restraining order should be granted. Eric appeals from the
District Court's order denying Eric's motion to dismiss for lack of jurisdiction,
granting the restraining order and granting Pam's motion for modification of
visitation. Pam cross-appeals for attorney fees and costs incurred in enforcing
Eric's past due child support obligations. We affirm.
           Factual and Procedural Background

¶3   Pam and Eric were married in Newberg, Oregon, in December 1986.
There are two children of the marriage, Colton born February 1989 and
Matthew born October 1991. The parties resided in Oregon until 1994 when
Pam took her annual vacation to visit her parents at their home in Montana.
Pam asserts that during that visit she came to the realization that she needed
a break from her marriage. As a result, Pam filed for unlimited legal
separation in Oregon. Thereafter, the parties entered into a Marital Settlement
Agreement which was adopted as part of the Judgment of Unlimited
Separation. The Marital Settlement Agreement provided that Pam would have
custody of the children and Eric would have visitation rights. Eric agreed to
pay $150 in child support and $50 in maintenance monthly. Pam relocated to
Montana in the winter of 1994 and Eric followed shortly thereafter. Both
parties currently reside in Roberts, Montana. Pam is employed as a teacher at
$15,000 per year and Eric works as a laborer at $8.00 per hour or
approximately $11,512 annually.

¶4   In July 1995, Pam filed for dissolution of the marriage in Carbon
County District Court. At the time of filing, Pam had resided in Montana for
close to one year and Eric for seven months. Eric was represented by counsel
for a short time in the dissolution proceedings; however, the attorney moved
to withdraw and Eric proceeded pro se. In August 1996, Eric filed a document
entitled "Amended Motion to Reopen Case and Amended Motion to Give Full
Custody of Parties Minor Children to Father" in Oregon. Pam filed a motion
to dismiss. The Oregon court held a hearing and issued an Order and
Judgment dismissing Eric's motion and holding that Montana is the home state

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of the children pursuant to the UCCJA and refusing to exercise jurisdiction
over custody matters. Eric filed a notice of appeal in the Oregon court on
January 13, 1997 and according to the parties, the Oregon appeal is still
pending.

¶5   Meanwhile, Eric filed a motion to dismiss Pam's Petition for
Dissolution asserting that the Carbon County District Court lacked subject
matter jurisdiction. Pam moved to deny Eric's Motion to Dismiss. Thereafter,
the Montana District Court denied Eric's motion to dismiss and held a trial
upon Pam's Petition for Dissolution. The District Court found that: 1) the
marriage was irretrievably broken; 2) the Judgment of Unlimited Separation,
including the Marital Separation Agreement, issued by the Oregon court was
entitled to full faith and credit; 3) Eric should be restrained from taking the
children out of the state without permission and from harassing Pam at work;
4) the visitation portion of the separation agreement should be modified to
require Eric to remain within 10 feet of his car when picking up and dropping
off the children and limiting his telephone visitations with the children to the
hour of 6:00-7:00 p.m.; and 5) Pam had shown changed circumstances so
substantial and continuous that the current child support provision is
unconscionable; therefore child support payments should be increased to $231
per month.

¶6   Furthermore, the District Court explained by Memorandum that it was
obligated to give the Oregon Decree full faith and credit pursuant to the United
States Constitution and that it had jurisdiction to modify the visitation and
support terms because Montana is the home state of the children and Oregon
had declined to assume jurisdiction. It is from the District Court's Findings of
Fact and Conclusions of Law and Final Decree of Dissolution that Eric
appeals. Although Eric presents "eight issues and a constitutional question"
on appeal, this Court will address only the issues of jurisdiction, modifications
to visitation, and the restraining order as only those issues are properly before
the Court. In addition, Pam cross-appeals for attorney fees and costs.
                       Discussion

¶7   1) Did the District Court err in denying Eric's motion to dismiss for lack
of subject matter jurisdiction?

¶8   Prior to trial, Eric moved to dismiss this action asserting that the
District Court lacked subject matter jurisdiction pursuant to the Parental
Kidnaping Protection Act (PKPA). It is Eric's contention that only the Oregon
court has jurisdiction. The District Court denied Eric's motion to dismiss
determining that it had jurisdiction to hear the matter. A district court's
decision regarding its jurisdiction is a conclusion of law. This Court reviews
a district court's conclusions of law to determine whether the district court's
interpretation of the law is correct. Steer, Inc. v. Dept. of Revenue (1990), 245
Mont. 470, 474-75, 803 P.2d 601, 603-04.

¶9   Congress enacted the PKPA to establish national standards by which
a court can determine whether it has jurisdiction in child custody proceedings.
Through the PKPA, Congress sought to discourage continuing interstate
controversies over child custody and to facilitate the enforcement of custody


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determinations of sister states. See In re Marriage of Shupe (1996), 276 Mont.
409, 413-14, 916 P.2d 744, 746-47. Furthermore, the United States Supreme
Court has imposed a duty on the states to enforce child custody determinations
entered by a sister state, if the determination is consistent with the provisions
of the PKPA. Thompson v. Thompson (1988) 484 U.S. 174, 108 S.Ct. 513,
98 L.Ed.2d 512. For the custody decree to be consistent with the PKPA, the
state must have jurisdiction under its own laws, and the court which made the
original custody determination must no longer have jurisdiction or it has
declined to exercise such jurisdiction. Marriage of Shupe, 916 P.2d at 747.


¶10 The Oregon Judgment of Unlimited Separation provided that Pam
would have custody of the children and provided a schedule for Eric's
visitation with the children. In the District Court proceedings, Eric, before the
trial, specifically withdrew his requests for modification to custody.
Therefore, the only custody-related issue before the District Court was Pam's
request for a modification to visitation. The District Court determined, first,
that the Oregon court's award of custody, as stated in the Judgment of
Unlimited Separation, was entitled to full faith and credit. In addition, the
District Court determined that it had jurisdiction to modify visitation. With
regard to its jurisdiction, the District Court specifically determined that
Montana is the home state of the children, both parents reside in Montana, and
Oregon had declined to assume jurisdiction.

¶11 We determine that the District Court properly exercised jurisdiction
over the matter and that the District Court properly afforded full faith and
credit to the parties' settlement agreement as adopted by the Oregon Judgment
of Unlimited Separation.
                           II

¶12 2) Did the District Court abuse its discretion in modifying the
conditions of visitation?

¶13 During the trial, both parties introduced evidence of continuing
problems which result when Eric picks up and drops off the children at Pam's
house. Several witnesses testified to Eric's harassing Pam with phone calls.
And, Eric admitted to taking the children to Oregon without Pam's permission
during one of his visits. As a result, Pam moved to modify the conditions of
visitation to require Eric to remain within 10 feet of his car when picking up
or returning the children, to restrict telephone visitation to the hour of
6:00-7:00 p.m., and to prohibit Eric from removing the children from the State of
Montana without Pam's written consent or an order of the court. The District
Court granted each of Pam's requests for modification of visitation.


¶14 We review a district court's findings relating to modification of
visitation to determine whether those findings are clearly erroneous. This
Court will reverse a district court's decision to modify visitation only where an
abuse of discretion is clearly demonstrated. In re Marriage of Elser (1995),
271 Mont. 265, 268, 895 P.2d 619, 622.



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¶15 The District Court found that there was an ongoing dispute between the
parties regarding visitation. The record reveals that the parties have tape
recorded one another and taken photos without the other's permission, had
verbal disputes in the presence of the children and have confrontations nearly
every time Eric visits the children. In addition, the District Court found that
Eric had removed the children from the State of Montana without permission
in violation of the terms of visitation. Finally, the court found that Eric has
been verbally abusive and tried to intimidate Pam and members of her family
when he has come to the family ranch for visitation. The District Court's
findings are not clearly erroneous.

¶16 The District Court determined that, based on its findings, efforts to limit
the controversy between Pam and Eric would be in the best interest of the
children, therefore the court granted the requested modifications. The District
Court further supported the modifications by explaining that, the
modifications, while slightly changing the manner in which Eric exercises his
visitation, do no change the duration or nature of visitation. We determine that
the District Court did not abuse its discretion in modifying the terms of
visitation.
                          III

¶17 3) Did the District Court abuse its discretion in granting Pam's motion
for restraining order?

¶18 Pam presented evidence that Eric verbally abused and intimidated her
at her job, when exercising visitation, and on occasions when she was out with
the children. Pam moved for a restraining order restraining Eric from stalking
Pam, excluding Eric from Pam's residence and property except when
exercising his visitation rights, restricting Eric from bringing guns, cameras
and recording devices on Pam's property, requiring Eric to stay within 10 feet
of his vehicle when picking up and returning the children, requiring Eric to
refrain from loitering on the property when visiting the children, restraining
Eric from being within 25 feet of Pam in any public place, enjoining Eric from
removing the children from the jurisdiction of the court, restraining Eric from
contacting Pam's employer without permission of the court and restraining Eric
from subjecting the children to psychological examinations without approval
of the court.

¶19 The District Court determined that, because the parties live in a small
community, a grant of all the restraints requested by Pam would be
inappropriate. Therefore, the District Court limited the restraining order to
prohibiting Eric from contacting Pam's employers, from approaching Pam in
public places and from making harassing phone calls to Pam's home or
workplace. The granting of an injunction is discretionary and this Court will
sustain such grant unless an abuse of discretion is shown. Curran v. Dept. of
Highways (1993), 258 Mont. 105, 107, 852 P.2d 544, 545. The record reveals
that the conditions of restraint placed on Eric are reasonable under the
circumstances. We determine that the District Court did not abuse its
discretion in granting the restraining order.
                           IV



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¶20       4) Is Pam entitled to attorney fees and costs on appeal?

¶21 Pam cross-appeals for an award of attorney fees based on the provisions
of the Marital Settlement Agreement and Rule 32, M.R.App.P. The Marital
Settlement Agreement provides that "[s]hould either party incur any expense
or legal fees as a result of the breach of any portion of this Marital Settlement
Agreement . . . the court shall award reasonable attorney's fees and suit
expenses. . . ." Pam asserts that because Eric is delinquent in his child support
payments, he has breached the Marital Settlement Agreement and should be
liable for the attorney fees and costs incurred in the portion of her dissolution
action for enforcement of delinquent child support payments.


¶22 In addition, Pam seeks an award of attorney fees and costs pursuant to
Rule 32, M.R.App.P., which provides that "[i]f the supreme court is satisfied
from the record and the presentation of the appeal in a civil case that the same
was taken without substantial or reasonable grounds, . . . damages may be
assessed . . . ." Pam asserts that Eric's appeal to this Court is frivolous and that
she should be awarded attorney fees and costs incurred in defending the
appeal.

¶23 We determine that Pam's cross-appeal for attorney fees and costs must
fail for two reasons. First, Pam did not request attorney fees and costs
pursuant to the Marital Settlement Agreement at the District Court. This Court
has continually reiterated that it will not review issues presented for the first
time on appeal. Grenz v. Fire and Cas. of Connecticut (1996), 278 Mont. 268,
273, 924 P.2d 264, 267. Pam did not raise the issue of attorney fees and costs
at the District Court and this Court is without jurisdiction to review Pam's
request. Second, we determine that Eric's appeal, while not meritorious, was
taken with substantial and reasonable grounds. Therefore, we deny Pam's
request for damages pursuant to Rule 32, M.R.App.P. Affirmed.

                                            /S/       W. WILLIAM LEAPHART


We concur:

/S/       JIM REGNIER
/S/       TERRY N. TRIEWEILER
/S/       KARLA M. GRAY
/S/       WILLIAM E. HUNT, SR.




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