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In re Parenting of B.K.

Supreme Court of Montana

September 4, 2018

IN RE THE PARENTING OF B.K., JESSICA SMALLING, Petitioner and Appellee, and JASON KLUBBEN, Respondent and Appellant.

          Submitted on Briefs: June 6, 2018

          APPEAL FROM: District Court of the Fourth Judicial District, In and For the County of Missoula, Cause No. DR-16-476 Honorable Karen Townsend, Presiding Judge

          For Appellant: Marybeth M. Sampsel, Measure, Sampsel, Sullivan & O'Brien, P.C., Kalispell, Montana

          For Appellee: Emily Lucas, Ries Law Group, P.C., Missoula, Montana


         ¶1 Jason Klubben (Father) appeals from an order of the Fourth Judicial District Court, Missoula County (Montana Court), determining that it had jurisdiction over the child custody proceeding concerning B.K., his minor child. We affirm.


         ¶2 Father and B.K.'s mother, Jessica Smalling (Mother) had an on-again, off-again romantic relationship from approximately 2012 until 2016, during which they separated and reconciled several times. Father and Mother never married. B.K. was born in Montana in 2013 and lived with Mother in Montana. On August 1, 2014, following a major rupture in their relationship, Father moved to Minnesota for work and Mother and B.K. remained in Montana. The parties then again reconciled and in September 2015, Mother and B.K. moved to Minnesota on a temporary basis to live with Father. In addition to B.K., Mother has another child from a prior relationship. Pursuant to agreement with that child's father, Mother would only be absent from Montana for a year or less. According to Mother, the purpose of the move to Minnesota was to increase Father's employment opportunities and allow a return to Montana where he would either find new employment or work remotely from Montana. Father asserts the move was more permanent than that but acknowledged they might have moved to Washington or elsewhere in the future. Mother and B.K. remained in Minnesota eight to nine months until May 21, 2016, when Mother and Father ended their relationship. Thereafter, Mother, B.K., and Mother's other child moved back to Montana. Shortly after moving back to Montana, Mother agreed B.K. could vacation with Father's parents who live in Washington and have had ongoing contact with B.K. throughout her life. The plan was for B.K. to visit her grandparents and then travel with them to and from North Dakota where they would see Father. Upon B.K.'s planned return to Montana, Father advised Mother B.K. was not returning to Montana with his parents. He "took custody" of her on June 24, 2016. Five days later, on June 29, 2016 (at 10:39 a.m., per the Montana Court's Findings of Fact), Mother commenced a child custody proceeding by petitioning the Montana Court to establish a parenting plan for B.K. Five months later, on November 2, 2016 Father initiated a separate custody proceeding in the Fourth Judicial District Court of Minnesota (Minnesota Court) by filing a complaint to establish paternity and resolve parenting issues.[1]

         ¶3 Pursuant to the Uniform Child Custody Jurisdiction and Enforcement Act (UCCJEA) adopted by both Montana and Minnesota, the Montana and Minnesota Courts conferred several times (10/25/16, 11/2/16, 11/9/16, and 1/20/17) to determine which court had jurisdiction over the matter. During these conferences, the courts together with the parties and their attorneys discussed and developed an agreed upon process for determining jurisdiction. At the November 2, 2016 conference, the Minnesota Court suggested the parties file briefs and affidavits upon which to submit the jurisdiction issue. The Minnesota Court further suggested that before proceeding in that manner, the parties consider participation in mediation. At the subsequent conference, it became apparent neither party was willing to participate in mediation and the courts again agreed additional evidence was needed to determine the appropriate jurisdiction. Neither party requested a hearing and counsel for both parties expressed agreement to filing affidavits and legal briefs in support of their respective positions on jurisdiction. The Minnesota Court then expressed, "if we're not going to do it in a mediation style, I tend to think we're maybe better moving into a motion if we're going to expedite it," whereupon the Montana Court responded that Father "has in fact filed here in Montana what essentially is a motion to dismiss for lack of jurisdiction." The Minnesota Court then advised, "I want to make sure that we're efficient and I want to make sure that at the end of this everybody on this call feels well served by two judges who are eager to do our professional best to reach a fair result." Upon the courts and parties agreeing for the Montana Court to rule on Father's motion to dismiss after the parties' submittal of affidavits and legal briefs, the Minnesota court advised, "For the time being then, I'm going to stand down. Our case is more or less on hold while Judge Townsend decides her jurisdictional issue." On December 30, 2016, the Montana Court issued thorough, highly detailed findings of fact and conclusions of law in an Order Re: Jurisdiction Under the UCCJEA and Denying Respondent's Motion to Dismiss for Lack of Jurisdiction. The Montana Court found: the Montana child custody proceeding was commenced prior to Mother being served with the Complaint and Summons prepared for the Minnesota case; the Mother's move to Minnesota with B.K. was a temporary absence from Montana; Montana was the home state of B.K.; Montana has jurisdiction over B.K. and the child custody proceeding; and that, although not part of her consideration for finding Montana jurisdiction, Montana was a convenient forum given Father's allegations regarding Mother's ability to parent as most evidence of those allegations was located in Montana or Washington, not Minnesota. After the Montana Court determined Montana to be the home state of B.K., the courts and parties again conferred on January 20, 2017. At that conference, the Montana Court inquired of the Minnesota Court, "So Judge Wahl, I just wonder if there is anything else that you and I have to do in connection with this case as far as what you think or what Minnesota law might be involved here." The Minnesota Court responded, "I don't see any further involvement for my court or Minnesota courts. I believe the matter is not properly a part of our jurisdiction and you have appropriately asserted the jurisdiction in the Montana courts unless there's some reason for me to be involved, I will bow out."

         ¶4 Father appeals from the Montana Court's December 30, 2016 Order.


         ¶5 A district court's determination of whether it has subject matter jurisdiction is a conclusion of law reviewed for correctness. In re Marriage of Sampley, 2015 MT 121, ¶ 6, 379 Mont. 131, 347 P.3d 1281.


         ¶6 Mother claims Montana is B.K.'s home state and the eight to nine months B.K. spent in Minnesota was a temporary absence from Montana. In opposition, Father claims Minnesota is B.K.'s home state and the time she was absent from Minnesota from May 21, 2016, to the commencement of the child custody proceeding on June 29, 2016, was a temporary absence from Minnesota. The District Court agreed with Mother.

         ¶7 At issue here is whether Montana is B.K.'s home state. This issue turns on whether B.K.'s absence from Montana was "temporary" and implicates our codification of the Uniform Child Custody Jurisdiction Act (UCCJA), which was enacted to promote uniformity and discourage jurisdictional conflict. See §§ 40-7-101 to -317, MCA; Stephens v. Fourth Judicial Dist. Court, 2006 MT 21, ¶ 6, 331 Mont. 40, 128 P.3d 1026. In 1977 Montana adopted the UCCJA. Prior to all 50 states adopting the UCCJA, the disparate and conflicting exercise of jurisdiction over child custody matters encouraged forum shopping, self-help, and re-litigation of custody matters in never ending disputes. Sampley, ¶ 23. The purpose of the UCCJA was to eliminate these problems by establishing uniform criteria for states to exercise jurisdiction of child custody matters. Sampley, ¶ 23 (citing UCCJA § 1). The UCCJA aimed to establish a bright-line rule whereby a state could exercise jurisdiction if it was the child's "home state." Sampley, ¶ 23. The six-month requirement for establishing a home state was based on the assumption most children integrate into a community after living in that community for six months. Sampley, ¶ 23 (citing UCCJA § 3 Comment). The UCCJA was revised to help further the Act's goals and address inconsistencies among state interpretation and enforcement of the UCCJA resulting in the UCCJEA, which Montana adopted in 1999. The UCCJEA did not substantially change the definition of "home state" from the UCCJA and Montana did not repeal the UCCJA but instead amended its language. Sampley, ¶ 24. The UCCJEA did not alter the purpose or meaning of the "home state" requirement, and in adopting the UCCJA and UCCJEA definition of "home state" the legislature intended to create a bright-line rule based on the assumption a child's integration into a community occurs after six months of living in a community. Sampley, ¶ 24 (citing Sec. 4, Ch.91, L. 1999).

         ¶8 Section 40-7-201, MCA, provides for establishing initial jurisdiction ...

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