                                        No. 01-446

                IN THE SUPREME COURT OF THE STATE OF MONTANA

                                        2002 MT 144


IN RE THE SUPPORT OBLIGATION OF:

MARK T. McGURRAN,

               Obligor,

         and

DEBRA L. UDELHOVEN,

               Petitioner/Appellant,

MONTANA DEPARTMENT OF PUBLIC
HEALTH AND HUMAN SERVICES,
CHILD SUPPORT ENFORCEMENT DIVISION,

               Respondent/Respondent.


APPEAL FROM:          District Court of the Tenth Judicial District,
                      In and for the County of Judith Basin,
                      The Honorable John C. McKeon, Judge presiding.

COUNSEL OF RECORD:

               For Appellant:

                      Charles Frederick Unmack, Hubble, Ridgeway, Unmack & Westveer,
                      Stanford, Montana

               For Respondent:

                      Valerie A. Bashor, Special Assistant Attorney General, DPHHS Child
                      Support Enforcement Division, Missoula, Montana


                                         Submitted on Briefs: December 28, 2001

                                                                   Decided: June 27, 2002
Filed:


                      __________________________________________
                                        Clerk
Justice Terry N. Trieweiler delivered the Opinion of the Court.
¶1   Petitioner, Debra L. Udelhoven, filed a Petition for Judicial

Review of a Modification Consent Order of the Department of Public

Health   and   Human   Services    (DPHHS),   Child   Support   Enforcement

Division (CSED), in the District Court for the Tenth Judicial

District Court in Judith Basin County.          The Modification Consent

Order reduced the child support obligation of the Respondent, Mark

T. McGurran.     CSED moved to dismiss the petition for failure to

exhaust administrative remedies and lack of jurisdiction.               The

District Court granted the motion to dismiss based on lack of

jurisdiction.     Udelhoven appeals the District Court's dismissal.

We reverse the order of the District Court.
¶2   The sole issue on appeal is whether the District Court erred

as a matter of law when it dismissed the Petition for Judicial

Review for lack of jurisdiction based on its conclusion that the

petition should have been filed in a different county.

                  FACTUAL AND PROCEDURAL BACKGROUND

¶3   On January 11, 2001, Mark T. McGurran filed a Request for

Review of a CSED administrative child support order which had been

issued on November 17, 1998.       The November 17, 1998, order required

McGurran to pay $703 every month to Debra L. Udelhoven for the

support of their son.       It also required that he provide health

insurance coverage for their child.

¶4   On April 4, 2001, CSED issued a Modification Consent Order

which reduced     McGurran's child support obligation from $703 a

month to $432 a month.     McGurran remained responsible for providing

health insurance coverage.        The effective date of the modification



                                      2
was April 1, 2001.   Prior to that date, CSED had sent a copy of the

proposed modification to both McGurran and Udelhoven.          In a letter

dated   February   28,   2001,   CSED   informed   Udelhoven    that   the

Modification Consent Order would take effect if arbitration was not

requested by April 2, 2001.      CSED did not receive an arbitration

request prior to that date.

¶5   On or about April 16, 2001, Udelhoven filed a Petition for

Judicial Review of the Modification Consent Order in the District

Court for Judith Basin County.     At the time the petition was filed,

Udelhoven resided in Colorado and CSED had its primary office in

Lewis & Clark County.
¶6   CSED filed a Motion to Dismiss the Petition for Judicial

Review on two grounds.      First, CSED claimed that Udelhoven had

failed to exhaust her administrative remedies because she had not

requested arbitration.      Second, CSED claimed that the District

Court lacked subject matter jurisdiction because the action was

filed in the wrong county.        The District Court granted CSED's

Motion to Dismiss based on its conclusion that because the petition

was filed in the wrong county, it was without jurisdiction.            On

June 25, 2001, Udelhoven appealed the District Court's order

granting CSED's Motion to Dismiss.

                          STANDARD OF REVIEW

¶7   "[A] district court's determination that it lacks jurisdiction

over a matter is a conclusion of law which we review to determine

whether the district court's interpretation of the law is correct."

  In re McGurran, 1999 MT 192, ¶ 7, 295 Mont. 357, ¶ 7, 983 P.2d



                                    3
968, ¶ 7 (citing Hilands Golf Club v. Ashmore (1996), 277 Mont.

324, 328, 922 P.2d 469, 472).

                                 DISCUSSION

¶8    Did the District Court err as a matter of law when it

dismissed the Petition for Judicial Review for lack of jurisdiction

based on its conclusion that the petition should have been filed in

a different county?

¶9    Udelhoven    contends    that   the    District   Court   confused     the

concepts of jurisdiction and venue, and, as a result, erred as a

matter of law when it granted CSED's Motion to Dismiss for lack of

jurisdiction.      Udelhoven argues that jurisdiction refers to the

inherent power of a court to decide a controversy, whereas venue

designates the particular county or city in which a court with

jurisdiction may hear and determine the case.           Accordingly, because

all Montana district courts have subject matter jurisdiction over

petitions    for   judicial     review      of   administrative   decisions,

Udelhoven asserts that CSED's failure to file in the proper county

did not divest the District Court of subject matter jurisdiction.

Udelhoven, therefore, contends that the District Court's conclusion

that it lacked jurisdiction based on improper venue was incorrect

as a matter of law.
¶10   CSED   contends   that    its   Motion     to   Dismiss   for   lack    of

jurisdiction was proper because the Legislature has the sole

discretion to define the scope of judicial review of administrative

decisions and has provided certain requirements which define the

district court's authority.      It asserts that Udelhoven's failure to



                                      4
follow the requirements of § 2-4-702(2)(a), MCA, which includes

filing   in    the      proper    venue,      divested    the    District     Court   of

jurisdiction.

¶11   The District Court agreed with CSED.                      The District Court

concluded that "MCA § 2-4-702(2)(a) is more than a mere venue

statute;      it   is    the     legislative      designation      under    Montana's

Constitution, Article VII, § 4 of the particular courts to have

jurisdiction for judicial review."                The District Court interpreted

§   2-4-702(2)(a),        MCA,    as    a   requirement    that    "a   petition      for

judicial review must be filed in the correct venue for the court to

obtain jurisdiction."              We conclude that the District Court's

interpretation of the law is incorrect.
¶12   This    Court      has     long   recognized       the    distinction    between

"jurisdiction" and "venue."                 In general terms, jurisdiction is a

court's authority to hear and determine a case, and goes to the

"power" of the court.             Stanton Trust & Savings Bank v. Johnson

(1937), 104 Mont. 235, 235, 65 P.2d 1188, 1189.                         Jurisdiction

cannot be waived or conferred by consent of the parties where there

is no basis for jurisdiction under the law.                       In re Marriage of

Miller (1993), 259 Mont. 424, 427, 856 P.2d 1378, 1380.

¶13   Venue, on the other hand, refers to the place where the case

is to be heard, or where the power of the court can be exercised.

Stanton Trust, 104 Mont. at 235, 65 P.2d at 1189.                          Venue is a

personal privilege of the defendant and, thus, may be waived.                         It

is, in fact, deemed waived unless a motion to change the venue is




                                              5
made at the defendant's initial appearance.        Rule 12(b)(ii),

M.R.Civ.P.

¶14   The distinction between jurisdiction and venue is clearly

expressed in the most recent edition of Black's Law Dictionary,

which states:

      The distinction must be clearly understood between
      jurisdiction, which is the power to adjudicate, and
      venue, which relates to the place where judicial
      authority may be exercised and is intended for the
      convenience of the litigants.       It is possible for
      jurisdiction to exist though venue in a particular
      district is improper, and it is possible for a suit to be
      brought in the appropriate venue though it must be
      dismissed for lack of jurisdiction. The most important
      difference between venue and jurisdiction is that a party
      may consent to be sued in a district that otherwise would
      be an improper venue, and it waives its objection to
      venue if it fails to assert it promptly.
Black's Law Dictionary 1554 (7th ed. 1999) (citing Charles Alan

Wright, The Law of Federal Courts § 42, at 257 (5th ed. 1994)).

Although the cited treatise author was referring to federal courts,

the distinction is equally applicable to Montana state courts.

Another noted legal scholar distinguished jurisdiction from venue

in the following way:

      Jurisdiction deals with the power of a court to hear and
      dispose of a given case; . . . . Venue is of a distinctly
      lower level of importance; it is simply a statutory
      device designed to facilitate and balance the objectives
      of optimum convenience for parties and witnesses and
      efficient allocation of judicial resources.

Black's Law Dictionary 1553-54 (7th ed. 1999) (citing Jack H.

Friedenthal et al., Civil Procedure § 2.1, at 10 (2d ed. 1993)).

¶15   Here, Udelhoven's filing of a Petition for Judicial Review

vested the District Court with jurisdiction.    Pursuant to Article

VII, Section 4, Subsection 1 of the Montana Constitution, "[t]he


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district court has original jurisdiction in . . . all civil matters

and cases at law and in equity."      See also § 3-5-302(1)(b) and -

(c), MCA.    Statutorily, jurisdiction to review administrative

decisions is conferred on district courts by § 2-4-702(2)(a), MCA,

of the Montana Administrative Procedure Act, which states in

relevant part that:

          Except as provided in subsection (2)(c), proceedings
     for review must be instituted by filing a petition in
     district court within 30 days after service of the final
     decision of the agency or, if a rehearing is requested,
     within 30 days after the decision is rendered.
Because Montana district courts are vested with jurisdiction over

appeals from final administrative decisions in contested cases, the

Tenth Judicial District could hear and decide Udelhoven's Petition

for Judicial Review.

¶16   Whether venue was proper in Judith Basin County involved an

entirely different issue for the District Court's consideration.

Section 2-4-702(2)(a), MCA, in addition to granting jurisdiction to

the District Court, also sets forth the proper place where a

contested administrative decision can be heard, and provides:

      Except as otherwise provided     by statute, the petition
      must be filed in the district   court for the county where
      the petitioner resides or has   the petitioner's principal
      place of business or where      the agency maintains its
      principal office.

Such a requirement is nothing more than a venue provision, and is

no different than any other venue provision contained within

Montana Code Annotated.   Venue provisions are not jurisdictional.

See generally § 25-2-112, MCA ("The designation of a county in this

part [Title 25, Chapter 2, Part 1] as a proper place of trial is




                                 7
not jurisdictional and does not prohibit the trial of any cause in

any court of this state having jurisdiction.").

¶17   The distinction between jurisdiction and venue is further

illustrated by the     requirement in § 2-4-702(2)(b), MCA, that a

petition for judicial review must "include a concise statement of

the facts upon which jurisdiction and venue are based . . . ."

(Emphasis    added.)    Requiring       that   facts   upon   which   both

jurisdiction and venue are based be separately set forth recognizes

that they are different requirements.
¶18   The District Court's conclusion that the venue provision set

forth in § 2-4-702(2)(a),   MCA, is jurisdictional is incorrect as a

matter of law.    Upon proper motion, this matter should have been

transferred to the proper county.       However, CSED instead filed its

Motion to Dismiss for lack of jurisdiction.        By failing to file a

motion to change venue at the time of CSED's first appearance, CSED

waived its right to later object to venue.              Rule 12(b)(ii),

M.R.Civ.P.; see also Spiker Communications v. Dept. of Commerce,

1998 MT 32, ¶ 10, 287 Mont. 345, ¶ 10, 954 P.2d 1145, ¶ 10.           The

District Court in Judith Basin County is, therefore, a proper place

for trial of this matter absent agreement by the parties to

transfer venue.

¶19   Accordingly, we reverse and remand to the District Court for

further proceedings consistent with this Opinion.


                                         /S/ TERRY N. TRIEWEILER


We Concur:



                                    8
/S/   W. WILLIAM LEAPHART
/S/   PATRICIA COTTER
/S/   JIM REGNIER
/S/   JIM RICE




                            9
Chief Justice Karla M. Gray, specially concurring.


¶20    I concur in the result the Court reaches.                            I also agree

entirely with the Court's discussion regarding the distinctions

between jurisdiction and venue, and the paramount importance of

jurisdiction, without which a court lacks the power and authority

to act in a matter.             My interpretation of the statute at issue

differs somewhat from that of the Court, however, and I write

separately to clarify that difference.

¶21    It is undisputed that the broad jurisdictional grant to

district courts over "all civil matters and cases at law and in

equity" is conferred by Article VII, Section 4(1) of the 1972

Montana Constitution.            Section 3-5-302(1)(b) and (c), MCA, simply

reiterate the constitutional grant of jurisdiction.                          They are not

at all necessary to confer such jurisdiction and, indeed, neither §

3-5-302,      MCA,    nor    any    other    statute      properly      could     limit     or

restrict the jurisdiction conferred by the constitution.

¶22    With regard to the first sentence in § 2-4-702(2)(a), MCA, the

Court states that it "confers" jurisdiction on the district courts.

 Given     the    discussion       immediately       above,     it    is   clear     that    I

disagree with the Court's statement.                       The statement in § 2-4-

702(2)(a), MCA,         that "proceedings for review must be instituted by

filing a petition in district court . . ." does not confer

jurisdiction.        At the very most, it--like § 3-5-302(1)(b) and (c), MCA--

merely reiterates the constitutional grant of jurisdiction. In my view, a better interpretation

of that statement is that it simply sets forth the procedure to be followed in commencing a

judicial review proceeding. Read in that manner, it is clear that the second sentence in § 2-4-

702(2)(a), MCA, can only be what the Court properly interprets it to be--a venue statute.


                                              10
¶23    Were it not for the broad constitutional grant of jurisdiction

to district courts, I would be inclined to interpret the second

sentence of § 2-4-702(2)(a), MCA, as a jurisdictional limitation

requiring the filing of petitions for judicial review in the county

of petitioner's residence/primary place of business or where the

agency maintains its principal office.          That is to say, without the

constitutional element in the mix, I do not believe this would be a

mere venue statute; nor do I believe the Legislature intended it to

be a mere venue statute.         The language in § 2-4-702(2)(a), MCA,

states that the petition for judicial review "must be filed in" one

of     the   above-mentioned     counties.          This   language     differs

significantly from the language used by the Legislature in its

various civil venue statutes, which generally state only that

"[t]he proper place of trial [for a given type of civil case] is"

and then list the counties in which venue--that is, the proper

location--is appropriate.        See, e.g., §§ 25-2-121 and 25-2-122,

MCA.     In short, it is my view that the Legislature probably

intended--because    of   both   the    plain   language    used   in    §   2-4-

702(2)(a), MCA, and the plain, but very different, language used in

venue    statutes--that   jurisdiction      over    petitions   for     judicial

review be limited to those counties stated in § 2-4-702(2)(a), MCA.

 The Legislature simply may not have understood that it is not free

to limit the broad jurisdiction over "civil matters and cases at

law and in equity" conferred by the Montana Constitution.

¶24    I agree with the Court that the District Court erred in

concluding that § 2-4-702(2)(a), MCA, is a "legislative designation

. . . [of] jurisdiction" with regard to petitions for judicial

review of final agency decisions.

                                                   /S/ KARLA M. GRAY

                                       11
Justice James C. Nelson joins in the foregoing specially concurring opinion.

                                                       /S/ JAMES C. NELSON




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