MARRIAGE OF LANCE

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NO. 84--223 I N TBE SUPREME COURT OF THE STATE O F MONTANA 1984 IIJ THE MARRIAGE O F DALE ELLYS LANCE, P e t i t i o n e r & Respondent, and JOHN F E S L E R LMJCE, R e s p o n d e n t and A p p e l l a n t . I N RE THE CUSTODY OF BRADLEY JOHN LANCE AND C H R I S T I N A DALE LANCE. APPEAL FROM: D i s t r i c t C o u r t of t h e F o u r t h J u d i c i a l D i s t r i c t , I n and f o r t h e C o u n t y of M i s s o u l a , T h e H o n o r a b l e M i c h a e l K e e d y , Judge p r e s i d i n g . COUNSEL OF RECORD: For Appellant: J o h n F. L a n c e , p r o se, F l o r e n c e , M o n t a n a F o r Respondent : H a r r i s & H a r r i s ; M a r k W. H a r r i s , E v a n s t o n , Wyoming & M i t c h e l l ; C a r o l A. liIitchel1, M i s s o u l a , Montana Ferguson S u b m i t t e d on B r i e f s : A u g u s t 30, O c t o b e r 31, 1 9 8 4 Decided: Filed: OCT 3 1 1984 - Clerk 1984 - The Missoula, Fourth Judicial dismissed a District Court, custody modification County petition of and motion for placement of children in a foster home for lack of subject matter jurisdiction. Fesler Lance, appeals. We The petitioner below, John affirm the decision of the District Court. The marriage of Dale Ellys Lance (now Willavize) and John Fesler Lance, the father and appellant, was dissolved by dscree in the Fourth Judicial District on March 29, 1979. Custody of the minor children of the marriage, Bradley and Christina, was awarded respondent. to Dale Lance, the mother and In late June or early July of 1982, the mother, her new husband, and the two children moved to Wyoming, where the husband had secured a position as a high school principal. Since that time, the mother, her husband and the two children have continued to reside in Wyoming, where Brad and Christina attend school. On March 3, 1983, the father, a pro se litigant, filed a petition for modification of the custody provision of the 1979 decree of dissolution. On June 30, 1983, the father filed a second document, captioned "Motion for Placement of Children in Foster Home," in which the father requested that Brad and Christina be removed from Wyoming and placed in a foster home near his residence in Florence, Montana. The motion asked that the children be kept in a foster home until the March, 1983 petition for modification had been ruled upon. Because the motion was brought under section 40-4-219, MCA, Montana's custody modification statute, we will hereafter refer to it as a petition for custody modification. The petition to modify custody by placing the children in a foster home was heard on September 22, 1983. On that date, the mother moved the court to dismiss both custody modification petitions for lack of subject matter jurisdiction. The jurisdictional issue was argued by the parties at the hearing, and the court also set a briefing schedule on that issue. Briefs were submitted by both parties, and on February 14, 1984, the District Court issued its memorandum order dismissing both petitions for lack of jurisdiction. The father filed a "Motion for Reconsideration" of the District Court's order on February 27, 1984, along with a supporting brief which was filed on March 5, 1984. The motion for reconsideration was denied by the court on March 16, 1984, and the father appeals. Succinctly stated, the father's first issue on appeal is whether the District Court erred in entertaining the mother's motion to dismiss, which was made on the same day as the hearing on the father's petitions for custody modification. The father argues that the mother's motion to dismiss for lack of subject matter jurisdiction was improperly made, and therefore should not have been considered by the court. According to the father, the motion was defective in that it was captioned as a "Response to Motion for Placement of Children in Foster Home," and contained no "formal" motion to the court. The mother's "Response" was filed in District Court on September 22, 1983, and stated in paragraph I, "[slaid motion must be dismissed because this Court lacks personal jurisdiction and jurisdiction of the subject matter of custody and visitation, much sections less foster care placement, pursuant to 42-4-211 and 42-2-108, Y.C.A." Paragraph IV concludes, "[w]herefore, Petitioner requests the Court dismiss Respondent's petition for modification and Motion for Placement in Foster Home. .. " The mother also raised her jurisdictional challenge orally at the September 22, 1983 hearing on the father's custody modification petitions. Rule 12(h)(3), M.R.Civ.P., it appears provides that "[wlhenever by suggestion of the parties or otherwise the court lacks jurisdiction of subject matter, the (Emphasis provided. ) court shall dismiss the action." the that We find that the mother's allegations of lack of subject matter jurisdiction were entirely adequate under Rule 12(h)(3) to bring the issue before the District Court. The father also maintains that the mother's "Response" was defective because it contained two miscited This argument lacks merit because correct statutes. statutory citations were given in the mother's supporting brief which was filed with her "Response." It is also clear that the mother filed a document entitled "Notice of Corrections of 'Response to Motion Home, I " the for Placement of Children in Foster on October 7, 1983, a copy of which was mailed to father. The "Notice of Corrections" absolved the clerical errors in the original document. The father further contends that under section ' 40-4-216 (I), MCA, which states that I [c]ustody proceedings shall receive priority in being set for hearing," the trial court should have ruled deciding the issue of on the custody matter whether it had before subject matter jurisdiction. Similarly, the father argues that because the court assumed jurisdiction in presiding over the September 22, 1983 hearing on the custody modification petitions, it was precluded from dismissing the case for lack of subject matter jurisdiction. Regarding both of these arguments, we simply note that it is a fundamental axiom of our legal system that the issue of subject matter jurisdiction may be invoked at any time in the course of a proceeding. Larrivee v. Norigeau (1979), 184 Mont. 187, 192, 602 P.2d 563, 566, cert. den. 445 U.S. 1653, 64 L.Ed.2d 240; Corban v. Corban (1972), 161 Mont. 93, 96, 504 P.2d 985, 987. 964, 100 S.Ct. Furthermore, once the issue is raised and a court determines that there is a jurisdiction, it can take no other than to dismiss it. Because the mother lack of subject matter further action in the case Rule 12 (h)(3), P4.R.Civ.P. challenged the District Court's jurisdiction on September 22, 1983, the same day as the hearing on the father's petitition for custody modification, the father maintains opportunity to be that he heard had neither notice nor an on the jurisdictional issue, as required by section 40-7-105, MCA. Yet the record reveals that not to be the case, for the father was provided with an opportunity to respond to the jurisdictional challenge at the hearing, and did respond at length. Furthermore, the court refused to rule on the issue of jurisdiction until both parties were given a mutually satisfactory amount of time in which to brief the court. obviously concerned with repeatedly addressed Indeed, the court was the father's pro se status and the father's time constraints in setting a briefing schedule, as the following exchange from the transcript reveals: "THE COURT: Well, Mr. Lance, yes, it's apparent to the Court that you have done a tremendous amount of work here and I will do everything I can to accommodate your needs and your schedule. Do you feel that I have given you enough time to file your responsive brief on the jurisdictional issue? "MR. LANCE: Yes, there is no problem with that at all." The father then briefed the court extensively on the jurisdictional issue, filing over 140 pages of discussion and over forty exhibits with the District Court. We rule that the father had ample notice and opportunity to be heard to satisfy his rights under both the Fourteenth Amendment to the United States Constitution, and section 40-7-105, MCA. The whether father's second principal issue on appeal is the District Court committed reversible error in dismissing the father's petition for custody modifica.tion for lack of subject matter jurisdiction. In its carefully drafted memorandum order of February 14, 1984, the District Court analyzed the jurisdictional. issue by reviewing the requirements of section 40-4-211, MCA. Section 40-4-211 is incorporated into the Montana Uniform Child Custody Jurisdiction Act (MUCCJA) by section 40-7-104, MCA, and is the "premier jurisdictional hurdle which must be overcome before a district court may modify a child custody decree with interstate implications." the Marriage of Bolton (Mont. 1984), 41 St.Rep. 1698, 1701. P.2d I In re I See also Wenz v. Schwartze (1979), 183 Mont. 166, 178, 598 P.2d 1086, 1093. In pertinent part, section 40-4-211, MCA provides as follows: " ( 1 ) R c o u r t of decide child jurisdiction to d e t e r m i n a t i o n by decree i f : t h i s s t a t e competent t o custody matters has make a c h i l d c u s t o d y i n i t i a l or modification "(a) this state: " ( i ) i s t h e home s t a t e o f t h e c h i l d a t the time of commencement of the proceedings; or " ( i i ) had b e e n t h e c h i l d ' s home s t a t e w i t h i n 6 m o n t h s b e f o r e commencement o f t h e p r o c e e d i n g and t h e c h i l d i s a b s e n t from t h i s s t a t e b e c a u s e o f h i s removal o r r e t e n t i o n by a p e r s o n c l a i m i n g h i s c u s t o d y o r f o r o t h e r r e a s o n and a p a r e n t or person a c t i n g a s parent continues t o live in t h i s state; or "(b) i t i s i n t h e b e s t i n t e r e s t o f t h e c h i l d t h a t a c o u r t o f t h i s s t a t e assume j u r i s d i c t i o n because: " ( i ) t h e c h i l d and h i s p a r e n t s o r t h e c h i l d and a t l e a s t o n e c o n t e s t a n t h a v e a s i g n i f i c a n t connection w i t h t h i s s t a t e ; and " ( i i ) t h e r e is a v a i l a b l e i n t h i s s t a t e substantial evidence concerning the child's present or future care, protection, training, and personal relationships; or " ( c ) t h e c h i l d is p h y s i c a l l y p r e s e n t t h i s s t a t e and: " ( i) in h a s b e e n abandoned ; o r " ( i i ) i t is n e c e s s a r y i n a n emergency t o p r o t e c t him b e c a u s e h e h a s b e e n s u b j e c t e d t o or threatened with mistreatment o r abuse o r is n e g l e c t e d o r d e p e n d e n t ; o r " ( d ) ( i ) no o t h e r s t a t e h a s j u r i s d i c t i o n under p r e r e q u i s i t e s s u b s t a n t i a l l y i n (l)(a), accordance with subsections ( l ) ( b ) , or ( l ) ( c ) or t h i s section or another s t a t e has declined t o exercise j u r i s d i c t i o n on t h e ground t h a t t h i s s t a t e i s t h e more a p p r o p r i a t e forum t o d e t e r m i n e c u s t o d y of t h e c h i l d ; and " ( i i ) it is i n h i s b e s t i n t e r e s t t h a t t h e c o u r t assume j u r i s d i c t i o n . " A d i s t r i c t c o u r t must f i r s t d e t e r m i n e t h a t "one of the four r e q u i r e m e n t s of disjunctive s e c t i o n 40-4-211 [ l ] MCA, , be s a t i s f i e d " b e f o r e a s s u m i n g j u r i s d i c t i o n t o make a c u s t o d y d e t e r m i n a t i o n by m o d i f i c a t i o n d e c r e e . , 41 S t . R e p . not because, P.2d at a t 1700. In the case a t bar, could Bolton, take t h e D i s t r i c t C o u r t found t h a t it jurisdiction according to under section uncontradicted 40-4-211(1)(a) evidence, when the f a t h e r f i l e d h i s f i r s t p e t i t i o n f o r m o d i f i c a t i o n on F e b r u a r y 28, 1983, mother the for children had seven months. over lived in Wyoming Thus, under with their the statute, W agree with the D i s t r i c t Court's findings. e Section Wyoming was t h e c h i l d r e n ' s home s t a t e . 40-4-211(1)(a), MCA provides that jurisdiction exists if N o n t a n a i s t h e c h i l d ' s home s t a t e when a c u s t o d y p r o c e e d i n g is first initiated, or had been the child's home state w i t h i n s i x months b e f o r e t h e c u s t o d y p r o c e e d i n g s commenced. S e c t i o n 40-7-103, in which involved, MCA, the child, lived with d e f i n e s "hone s t a t e " a s : " [ T l h e s t a t e immediately his parents, preceeding a parent, time the or a a c t i n g a s p a r e n t , f o r a t l e a s t G c o n s e c u t i v e months. person .. " The r e c o r d i n d i c a t e s t h a t b o t h p a r t i e s a g r e e t h a t t h e mother and two children moved from Montana to Wyoming sometime i n l a t e J u n e o r e a r l y J u l y of 1983, a t l e a s t s e v e n months before the father's f i r s t p e t i t i o n was d e f i n i t i o n , Wyoming r a t h e r t h a n Montana, of Brad filed. By was t h e home s t a t e and C h r i s t i n a L a n c e on t h e d a t e t h a t t h e i r father f i l e d h i s f i r s t custody modification p e t i t i o n . The f a t h e r , period used because: however, t o determine urges us to toll "home s t a t e " t h e s i x month status i n t h i s case (1) no n o t i c e was g i v e n t h e D i s t r i c t C o u r t b y t h e m o t h e r o f h e r move t o Wyoming, as r e q u i r e d b y a n A u g u s t 2 7 , 1981 order the District of incarcerated for most t h r o u g h August 30, of 1982, Court; the and the from period (2) f a t h e r was May 27, 1982, a n d was t h u s u n a b l e t o l o c a t e h i s c h i l d r e n ' s new r e s i d e n c e . 'In P i e r c e 899, we v. rejected Pierce the (1982), argument 1 9 7 Mont. that the 16, six 640 month state" p e r i o d should be t o l l e d where a non-custodial ~ . 2 d "home parent v i o l a t e d a c u s t o d y d e c r e e by r e f u s i n g t o r e t u r n a c h i l d from Montana t o t h e d e c r e e s t a t e of Kentucky: is not persuaded by "This Court respondent's contention t h a t during the time a c h i l d is p r e s e n t i n a s t a t e as a r e s u l t of acts i n v i o l a t i o n of an existing custody decree, calculation of t h e s i x month p e r i o d needed t o e s t a b l i s h should be 'home s t a t e ' j u r i s d i c t i o n tolled. Cf. Freeman v. F r e e m a n (Ky. 1 9 7 7 ) , 5 4 7 S.W.2d 437. Neither the language nor t h e l e g i s l a t i v e h i s t o r y of t h e 'home s t a t e ' d e f i n i t i o n a l s u b s e c t i o n support such a conclusion. See C o m m i s s i o n e r ' s N o t e , 9 U . L . A . 1 2 3 (master ed. 1979)." P i e r c e , 1 9 7 Mont. a t 2 8 , f . n . 2 , 640 P . 2 d a t 9 0 4 , f . n . 2 . Under P i e r c e , it w o u l d h a v e b e e n e r r o n e o u s f o r t h e c o u r t i n t h e i n s t a n t c a s e t o t o l l t h e s i x m o n t h "home s t a t e " p e r i o d , where the custodial parent removed the children from the decree state. And w e w i l l n o t a p p l y t h e e q u i t a b l e r e m e d y o f tolling six the month period required to establish j u r i s d i c t i o n u n d e r t h e "home s t a t e " p r o v i s i o n m e r e l y beta-use the father HA from - bringing - k of action ?n c a r c e r a t e d a i S&4. c9-l&eFL / < J b g/ . The f a t h e r h a s n o t been p r e v e n t e d i n a n w a y b was p his --- cause 4 &&*,/wcG. (petition modification) a s a r e s u l t of h i s incarceration. for custody But he must e s t a b l i s h t h e s i x m o n t h "home s t a t e " p e r i o d w i t h o u t b e n e f i t of tolling. To r u l e o t h e r w i s e w o u l d d e f e a t t h e l e g i s l a t i v e f* p u r p o s e of MUCCJA. the court S e e s e c t i o n 40-7-102, correctly refused to W find that e MCA. assume jurisdiction under jurisdiction under s e c t i o n 4 0 - 4 - 2 1 1 ( 1 ) ( a ) , MCA. The trial court also declined s e c t i o n 40-4-211(1)(b), Under MCA. that section, a court may n o t t a k e j u r i s d i c t i o n u n l e s s i t f i n d s t h a t t h e c h i l d and at least one c o n t e s t a n t m a i n t a i n a s i g n i f i c a n t connection w i t h Montana, - t h a t t h e r e e x i s t s s u b s t a n t i a l e v i d e n c e i n and Montana of the c h i l d ' s present or future care, protection, t r a i n i n g and p e r s o n a l r e l a t i o n s h i p s . the father and arguably connections with substantial evidence the Montana, of Although g r a n t i n g t h a t two c h i l d r e n had the District Brad and significant Court found Christina's that present or f u t u r e c a r e , e t c . d i d n o t e x i s t i n Montana. The f a t h e r a r g u e s t h a t b e c a u s e t h e c h i l d r e n s p e n t m o s t of their lives prior to June of 1982 in Montana, the s u b s t a n t i a l e v i d e n c e r e q u i r e m e n t h a s been s a t i s f i e d . assertion ignores the plain meaning of This section 4 0 - 4 - 2 1 1 ( 1 ) ( b ) ( i ) , which e x p l i c i t l y f o c u s e s on " p r e s e n t o r future care, protection, relationships. " training (Emphasis provided. ) and As its memorandum i n Wyoming for the date order, the Brad and year and District Court Christina had one-half. D u r i n g t h i s t i m e t h e y a t t e n d e d s c h o o l i n Wyoming. Their teachers signed of personal lived reside i n Wyoming. at least They a l i v e with their m o t h e r and h e r new husband i n Wyoming, w h e r e he i s p r i n c i p a l of a l o c a l high school. on the record continue. We to The t r i a l c o u r t found no e v i d e n c e indicate agree, and that find this that situation the court will not correctly r e f u s e d t o assume j u r i s d i c t i o n u n d e r s e c t i o n 4 0 - 4 - 2 1 1 ( 1 ) ( b ) , MCA. The c o u r t t h e n f o u n d t h a t i t l a c k e d j u r i s d i c t i o n u n d e r s e c t i o n 40-4-211(1)(c), MCA, b a s e d on t h e u n c o n t e s t e d f a c t t h a t n e i t h e r o f t h e two c h i l d r e n w e r e p h y s i c a l l y p r e s e n t i n Montana, a s r e q u i r e d by t h e s t a t u t e . found that the mistreatment, children neglect had or section 40-4-211(1)(c). abuse, because subjected mistreatment the litigation. 40-4-211(1)(c) been a threatened further with requirement of should apply a s a b a s i s for extending jurisdiction onerous not The f a t h e r a p p a r e n t l y b e l i e v e s t h a t s e c t i o n 40-4-211(1)(c) to In addition, the court children as a have result of this note simply We allegedly that been long and section r e q u i r e s t h a t t h e c h i l d o r c h i l d r e n must be physically present i n Montana at the time i n order Montana d i s t r i c t c o u r t t o assume j u r i s d i c t i o n . the case here, for a T h a t was n o t and we a f f i r m t h e t r i a l c o u r t ' s conclusion regarding s e c t i o n 40-4-211(1)(c). Finally, the t r i a l court determined t h a t it could not take jurisdiction under s e c t i o n 4 0 - 4 - 2 1 1 ( 1 ) ( d ) , the bases alternative custody matters. Montana district con£e r r i n g Under court section has t h e l a s t of jurisdiction in 40-4-211(1)(d), jurisdiction upon a child MCA, a finding e i t h e r t h a t no o t h e r s t a t e had j u r i s d i c t i o n u n d e r a s i m i l a r statutory scheme, or that exercise jurisdiction. i n c l u d i n g Wyo. Stat. t o s e c t i o n 40-4-211, this custody another state Wyoming a d o p t e d s e c t i o n 20-5-104, MCA. modification had declined to t h e UCCJA i n 1973, an i d e n t i c a l s t a t u t e Wyoming had j u r i s d i c t i o n t o h e a r petition because, as discussed a b o v e , Wyoming was t h e "home s t a t e " of Brad and C h r i s t i n a a t t h e t i m e t h e f a t h e r ' s f i r s t p e t i t i o n was f i l e d . Wyo. Stat. section 20-5-104(a). And is there no indication that Wyoming " h a s d e c l i n e d t o e x e r c i s e j u r i s d i c t i o n on t h e g r o u n d t h a t t h i s s t a t e [Montana] i s t h e more a p p r o p r i a t e forum t o d e t e r m i n e c u s t o d y of t h e c h i l d . " Section 40-4-2ll(l)(d)(i), MCA. To t h e c o n t r a r y , t h e f a t h e r s t a t e s t h a t t h e H o n o r a b l e John D. Troughton, Wyoming, wrote a declining Third letter jurisdiction to over Judicial the District, father this on March case. W e Evanston, 16, first observe t h a t t h e l e t t e r was n e v e r ma.de a p a r t of t h e r e c o r d , at the September voluminous briefs thereafter. whatsoever has Nor hearing, submitted do w e find in Finally, or in to the the record t h a t any d i s t r i c t c o u r t o f formally declined matter. 1983 22, jurisdiction the 1984, either father's District any Court indication t h e S t a t e o f Wyoming f o r any reason in this w e n o t e t h a t t h e r e were - l e t t e r s s e n t two t o t h e f a t h e r f r o m J u d g e T r o u g h t o n : o n e d a t e d March 1, 1 9 8 4 , and t h e o t h e r March 1 6 , 1 9 8 4 , b o t h o f which w e r e i n c l u d e d i n the f a t h e r ' s b r i e f s t o t h i s Court. In order t o provide an e x p l a n a t i o n f o r J u d g e T r o u g h t o n ' s d e c i s i o n , w e r e p r i n t below t h e t e x t from b o t h l e t t e r s : March 1, 1984 Dear Mr. Lance: I am a D i s t r i c t J u d g e . The S t a t e of Wyoming p a y s t h e s o l e I am n o t c o m p e n s a t i o n I am t o r e c e i v e f o r b e i n g a J u d g e . a v a i l a b l e t o be h i r e d f o r a n y o t h e r p u r p o s e . I am s h o c k e d a n d a s t o u n d e d b e y o n d my a b i l i t i e s o f expression. I c a n n o t b e l i e v e you would s e n d a j u d g e money f o r any r e a s o n . B e c a u s e you h a v e s e n t money t o m e , r a i s i n g t h e a p p e a r a n c e of an a t t e m p t e d p a y o f f , you ha.ve l e f t m e no alternative. Your p a c k a g e , l e t t e r and money h a v e b e e n t u r n e d o v e r t o t h e U i n t a C o u n t y S h e r i f f and U i n t a C o u n t y Prosecuting Attorney for whatever a c t i o n t h e y deem appropriate. Sincerely, John D. Troughton District Judge March 16, 1984 Mr. Mark Harris Attorney at Law P.O. Box 23 Evanston, WY 82930 Mr. John Lance Nighthawk Ranch, Box 403 Florence, MT 59833 Gentlemen : This is to advise you that I will not sit on any case involving controversies between John Pesler Lance and Dale Lance Willavize, or her husband. Sincerely, John D. Troughton District Judge It is evident from reading the two letters in conjunction that Judge Troughton removed himself from the case to avoid any appearance of impropriety, rather than in deference to Montana as a more appropriate state to assume jurisdiction. The father has an available forum in Wyoming, and Wyoming is the appropriate petition. state to hear We conclude that this custody modification the District Court properly declined to assume jurisdiction under section 40-4-211, MCA. The father also asserts that the District Court erred in failing to expeditiously set for hearing the father's March 3, 1983 petition for modification. addressed at the September That petition was 22, 1983 hearing, and was dismissed in the court's order of February 14, 1984. Citing section 40-4-216(1), "custody proceedings shall receive priority in being set for hearing," the father maintains that the court was dilatory in scheduling his petition for Y e t a c l o s e examination o f t h e r e c o r d i n t h i s c a s e hearing. i n d i c a t e s t h a t i f anyone h a s engaged i n d i l a t o r y t a c t i c s , i t h a s been t h e f a t h e r . Between was 3, filed on September 2 2 , by filing March the 1983, time his f i r s t petition and the hearing date on 1983, t h e f a t h e r inundated t h e D i s t r i c t Court documents such as "objections," " n o t i c e s " on an a l m o s t d a i l y b a s i s . "responses" and W i t h i n t h a t p e r i o d he f i l e d a t l e a s t t w e n t y m o t i o n s demanding w i d e l y v a r y i n g t y p e s of j u d i c i a l a c t i o n , many o f which w e r e w h o l l y i m m a t e r i a l t o the custody modification issue. Significantly, the father f i l e d a m o t i o n t o remove t h e j u d g e who was i n j u r i s d i c t i o n a t the time h i s p e t i t i o n was f i l e d . When t h a t m o t i o n was s e t f o r h e a r i n g , t h e f a t h e r moved t o r e s e t t h e h e a r i n g f o r a l a t e r d a t e on t h r e e s e p a r a t e o c c a s i o n s . The m o t h e r o p p o s e d t h e s e e x t e n s i o n s , on t h e g r o u n d s t h a t t h e y w e r e d i l a t o r y and were c a u s i n g h e r g r e a t expense i n r e t a i n i n g l o c a l c o u n s e l i n Missoula, Montana. Following a h e a r i n g , t h e H o n o r a b l e Nat A l l e n was removed from j u r i s d i c t i o n on J u n e 7 , 1 9 8 3 . The H o n o r a b l e M i c h a e l Keedy, June 8, 1983. accepted j u r i s d i c t i o n on A p p a r e n t l y t h e c o u r t t h e n s e t an a t t o r n e y ' s c o n f e r e n c e f o r August 31, 1983, i n order to sort out the p l e t h o r a of pending motions before t h e c o u r t a t t h a t t i m e . The moved father for a continuance of this attorney's c o n f e r e n c e , o n c e more a g a i n s t t h e m o t h e r ' s o p p o s i t i o n . Any d e l a y i n c o n s i d e r a t i o n of the father's petition f o r c u s t o d y m o d i f i c a t i o n h a s b e e n c a u s e d by h i s own a c t i o n s . For t h i s r e a s o n , and t h o s e s t a t e d a b o v e , t h e judgment of t h e D i s t r i c t Court is affirmed. IN THE SUPREME COURT OF THE STATE OF MONTANA No. 84-223 IN RE THE MARRIAGE OF DALE ELLYS LANCE, Petitioner and Respondent, and JOHN FESLER LANCE, Respondent and Appellant. * * * * * * * * * * * * IN RE THE CUSTODY OF BRADLEY JOHN LANCE and CHRISTINA DALE LANCE DECC- jsb< STATE: irf E!. O R D E R A\ i '6 Petitioner filed a motion pro se to correct a previous opinion issued in this matter, October 31, 1984. Petitioner requests the deletion of all references to the fact that John ". . . properly for a criminal act . . . " Fesler Lance was convicted and incarcerated IT IS ORDERED: The following words contained in the above opinion be struck: "properly convicted" and "for a criminal act." That portion "was requested incarcerated . . . to " be changed will now read: between May 27, 1982 and August 30, 1982. DATED this 'L day of December, 1984. %4&-W* Chief Justice

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