                                                                                          April 29 2008
                                         DA 07-0272

              IN THE SUPREME COURT OF THE STATE OF MONTANA
                                         2008 MT 147



IN RE THE CUSTODY AND
PARENTING PLAN OF B.C.B.W.,
          A Minor Child.

J.M.B.,

              Petitioner and Appellee,

         v.

J.W.,

              Respondent and Appellant.


APPEAL FROM:         District Court of the Fifth Judicial District,
                     In and For the County of Beaverhead, Cause No. DR 06-12994
                     Honorable Loren Tucker, Presiding Judge


COUNSEL OF RECORD:

              For Appellant:

                     Kristin West, D. Michael Eakin; Montana Legal Services Association
                     Billings, Montana

              For Appellee:

                     Thomas R. Scott, Attorney at Law, Dillon, Montana



                                                 Submitted on Briefs: January 23, 2008

                                                            Decided: April 29, 2008
Filed:

                     __________________________________________
                                       Clerk
Chief Justice Karla M. Gray delivered the Opinion of the Court.



¶1    J.W. (Mother) appeals from an order of the Fifth Judicial District Court, Beaverhead

County, transferring venue in this custody and parenting plan case to Gallatin County, the

home county of J.M.B. (Father). We reverse and remand with instructions.

¶2    The issue on appeal is whether the District Court erred in transferring venue to

Gallatin County.

                                    BACKGROUND

¶3    Mother and Father are the parents of B.C.B.W. (Daughter), who was born in 2002 and

was four years old at the time the underlying case commenced. The parents never married,

and Mother and Daughter lived in Billings, Yellowstone County, Montana, from the time of

Daughter’s birth. Father lived with them for several months and then moved to Bozeman,

Gallatin County, Montana. Daughter’s paternal grandmother, Denise, resides in Beaverhead

County, Montana, and took Daughter there from Billings on December 5, 2006, apparently at

Mother’s request to facilitate her move to a new residence.

¶4    Father petitioned the District Court for custody of Daughter, and a parenting plan, on

December 18, 2006, and filed his proposed parenting plan the same day.         The petition

alleged Daughter’s residence was in Beaverhead County at that time. Father moved for

temporary orders of custody and protection of Daughter the same day, and filed supporting

affidavits alleging child abuse of Daughter by Mother. The District Court entered its

temporary order of custody to Father on December 19, 2006.

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¶5     On December 29, 2006, Mother moved for a change of venue to Yellowstone County

and filed a supporting brief. She alleged that Daughter resided in Yellowstone County,

neither of the parents lived in Beaverhead County and the facts upon which Father was

seeking relief arose in Yellowstone County. The parties fully briefed the motion, and the

District Court filed its Order Transferring Venue to Gallatin County, Father’s county of

residence, on March 13, 2007. Recognizing Father’s acknowledgement that venue statutes

required his petition to be heard in Yellowstone County, the court based its transfer of venue

to Gallatin County on Father’s allegations of child abuse. Mother appeals.

                                STANDARD OF REVIEW

¶6     The determination of proper venue is a question of law involving the application of

Montana’s venue statutes to the pleaded facts. Our review of a district court’s grant or denial

of a motion to change venue is plenary; we merely determine whether the court’s decision is

legally correct. Circle S Seeds of Montana, Inc. v. Montana Merchandising, Inc, 2006 MT

311, ¶ 5, 335 Mont. 16, ¶ 5, 157 P.3d 671, ¶ 5 (citations omitted).

                                       DISCUSSION

¶7     Did the District Court err in transferring venue to Gallatin County?

¶8     Mother contends that, under §§ 25-2-118(3) and 40-4-211, MCA, Yellowstone

County is the proper venue for Father’s custody and parenting plan action. We agree.

¶9     “The proper place of trial for an action brought pursuant to Title 40, chapter 4, is the

county in which the petitioner or the respondent has resided during the 90 days preceding the

filing of the action.” Section 25-2-118(3), MCA. Under this general venue statute, if

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Father’s proceeding was brought under Title 40, chapter 4, both Gallatin and Yellowstone

Counties would be proper places for trial. Father did not file in either of those counties and,

however, as a result, he waived his right to have the matter tried in the county of his

residence. See § 25-2-201(1), MCA; Ford v. Montana Dept. of Fish, Wildlife and Parks, 208

Mont. 132, 136, 676 P.2d 207, 209 (1984); Seifert v. Gehle, 133 Mont. 320, 322-23, 323

P.2d 269, 270 (1958).      We conclude Mother was entitled to a change of venue to

Yellowstone County pursuant to § 25-2-118(3), MCA.

¶10     More importantly, however, a specific venue statute exists with regard to venue in a

parenting plan proceeding. Pursuant to § 40-4-211(4), MCA, a parenting plan proceeding

must be initiated in the district court in the county where the child is permanently resident or

found. Daughter was not permanently resident or permanently found in Beaverhead County,

where Father filed his petition. Daughter permanently resided in Yellowstone County and

was temporarily found in Beaverhead County in December of 2006.

¶11    In this latter regard, Father argues that § 40-4-211(4), MCA, is not the only specific

venue statute applicable here. He asserts that his proceeding is a paternity proceeding in

addition to a parenting procedure. He posits that the venue provision contained in § 40-6-

109, MCA, applies. This contention is without merit and also otherwise flawed.

¶12    Section 40-6-109, MCA, is contained within Montana’s Uniform Parentage Act (Act).

See § 40-6-101, MCA. That Act governs the establishment of parent and child relationships

outside of marriage, paternity proceedings and other matters relating to such relationships.

See generally §§ 40-6-102 through -131, MCA. A person bringing a paternity action seeks a

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judicial determination of the existence of the father and child relationship. See § 40-6-107,

MCA.

¶13    Section 40-6-109(3), MCA, provides that an action brought under the Act may be

brought in the county in which the child or the alleged father resides. The threshold

question, therefore, is whether Father’s petition was “brought under the Act.” He cites to the

first two paragraphs of his petition, but they provide no support for his position. Those

paragraphs merely state that he is the natural father—and Mother is the natural mother—of

Daughter, and go on to describe their respective ages, occupations, residence addresses and

domiciles.

¶14    More tellingly, the caption of Father’s petition is “In re the Custody and Parenting

Plan of” Daughter. While the caption would not control the contents of the petition if the

two were at odds, nothing in Father’s petition supports his argument that this was a paternity

action. Indeed, the relief sought is an award of primary care, custody and control of

Daughter, a determination that Father’s parenting plan is in Daughter’s best interests and

adoption of that plan, and a determination of child support. We are not persuaded that

Father’s petition was, even in part, a paternity action.

¶15    Even assuming arguendo that Father’s petition sought a paternity determination,

however, venue for such an action would be in Yellowstone County, where Daughter resides,

or in Gallatin County, where Father resides. See § 40-6-109(3), MCA. He chose to file the

petition in Beaverhead County, an improper county. Thus, § 25-2-201(1), MCA, Ford and

Seifert again would entitle Mother to a change of venue to Yellowstone County.

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¶16    Coming full circle, we return to the District Court’s order transferring venue and

observe that the order cites to not a single venue statute or other legal authority in support of

its determination that the “proper venue is Father’s home county [and t]hat county is

Gallatin.” The court’s decision rested on its concern that Mother had not refuted Father’s

allegations of child abuse and that its primary goal was to protect the child by “not requiring

the child to return to Mother’s home in Yellowstone County.” The District Court’s concerns

are understandable. However, they are not relevant to determining proper venue as a matter

of law. Absent proper venue, the allegations of abuse and other matters pertinent to Father’s

petition cannot be addressed.        Moreover, transferring venue of the proceeding to

Yellowstone County would not have required returning Daughter to Mother’s home in light

of the District Court’s award of temporary custody to Father.

¶17    Father advances here—as he did in the District Court—Stoneman v. Drollinger, 2003

MT 25, 314 Mont. 139, 64 P.3d 997, a case involving the Uniform Child Custody

Jurisdiction and Enforcement Act (UCCJEA) which is found in Title 40, chapter 7 of the

MCA. The issue in Stoneman—which had a long history in Montana courts—was whether

the trial court erred in denying the former wife’s motion to decline to exercise jurisdiction as

an inconvenient forum under the UCCJEA. Stoneman, ¶ 2. The background included

repeated guilty pleas to partner and family member assault by Stoneman, several court-

issued orders of protection and violations thereof, and other determinations of violent

behavior by Stoneman. Stoneman, ¶¶ 4, 27.




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¶18    The trial court in Stoneman acknowledged the well-documented history of domestic

violence, but denied the ex-wife’s motion to decline jurisdiction in favor of Washington

where she and the children had been living. It did not consider which forum could best

protect them. Stoneman, ¶¶ 4, 30, 34. On appeal, we ultimately held—after considering all

the UCCJEA factors—that Washington was the more appropriate forum for determining a

visitation plan for Stoneman and the children. We directed the Montana trial court to decline

jurisdiction as an inconvenient forum. Stoneman, ¶¶ 42-43.

¶19    Stoneman has no application here. In the present case, no violent or abusive conduct

by Mother had been judicially determined in any court prior to her motion to change venue.

Nor was the UCCJEA, a motion regarding jurisdiction or even a motion to change venue on

forum non conveniens at issue.

¶20    We hold the District Court erred as a matter of law in transferring venue to Gallatin

County and in denying Mother’s motion to change venue to Yellowstone County. This case

must be remanded to the Eighteenth Judicial District Court, Gallatin County, for the purpose

of that court’s immediate remand to the Fifth Judicial District Court, Beaverhead County.

Upon the occurrence of that event, we direct the Beaverhead County District Court to

immediately vacate its order transferring venue to Gallatin County, and to enter an order

granting Mother’s motion to change venue to Yellowstone County.

¶21    Reversed and remanded for further proceedings consistent with this Opinion.




                                                  /S/ KARLA M. GRAY

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We concur:

/S/ JAMES C. NELSON
/S/ W. WILLIAM LEAPHART
/S/ PATRICIA COTTER
/S/ JOHN WARNER




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