                            No.    95-435
          IN THE SUPREME COURT OF THE STATE OF MONTANA
                                  1995

CONSTANCE M. SHULTZ,
          Plaintiff and Appellant,




APPEAL FROM:   District Court of the Fourth Judicial District,
               In and for the County of Missoula,
               The Honorable Ed McLean, Judge presiding.


COUNSEL OF RECORD:
          For Appellant:
               Terry Wallace, Missoula, Montana
          For Respondent:
               Matthew H. O'Neill, French,             Mercer,   Grainey &
               O'Neill, Polson, Montana


                            Submitted on Briefs:        December 14, 1995
                                            Decided:     January 9, 1996
Filed:
Justice William E. Hunt, Sr. delivered the Opinion of the Court.

        Pursuant to Section I, Paragraph 3 (c), Montana Supreme Court
1995 Internal Operating Rules, the following decision shall not be
cited as precedent and shall be published by its filing as a public
document with the Clerk of this Court and by a report of its result
to State Reporter Publishing Company and West Publishing Company.
        Appellant Constance M. Shultz (Constance) appeals the order of
the Fourth Judicial District Court, Missoula County, granting the
motion of Respondent Berton M. Shultz (Berton) to change the venue
of this action from Missoula County to Lake County.
        Affirmed.
        Constance and Berton were married in 1973 and divorced in
1991.      As part   of    their   dissolution,   the parties executed a
settlement     agreement    addressing the issues of      child   custody,
support, and division of marital property.         The Twentieth Judicial
District    Court,   Lake County,     granted the divorce and issued a
decree incorporating the settlement agreement.
        On April 17, 1995, Constance filed suit in the Fourth Judicial
District Court, Missoula County, seeking to set aside the judgment
and settlement agreement on the basis of fraud, misrepresentation,
and undue influence.        Berton moved the Missoula District Court to
change the venue of the action from Missoula County to Lake County.
The Missoula District Court granted the motion,             holding that
Constance's suit attempted to collaterally attack a Lake County
judgment, and that, therefore, the proper venue was Lake County.
Constance appeals the change of venue.
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        The sole issue on appeal is whether the Missoula District
Court erred in granting Berton's motion to change the venue of the
action.
        A district court must change the venue of an action if the
county designated in the complaint is not the proper venue.
Section 25-Z-201(1), MCA.         The determination of proper venue is a
legal     conclusion,   and this Court reviews a district court's
conclusion regarding venue to determine whether it is correct.
State ex rel. D.H.E.S. v. Pegasus Gold Corp. (1995), 270 Mont. 32,
35, 889 P.2d 1197, 1199 (citations omitted).
        Constance requested that the Missoula District Court set aside
the     Lake    County judgment        (which   incorporated   the   property
settlement      agreement)    and subsequently reapportion the marital
property.      Her original complaint did not clearly state what legal
theory she invoked to justify such a request.           In her appeal brief,
however, she clarifies that her complaint arises under Rule 60(b),
M.R.Civ.P.,      which sets      out   under what circumstances a valid
judgment may be set aside.
        In arguing that venue is properly in Missoula, Constance cites
the statute which establishes appropriate venue for contract
actions,       5 25-2-121, MCA.        In the alternative,     she cites the
statute which establishes appropriate venue for family law cases,
5 25-2-118(3), MCA.          She contends that both statutes dictate that
the proper venue for this action is Missoula County.            For his part,
Berton contends that Constance's complaint alleges a tort, and
cites the statute which establishes appropriate venue for torts,

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§ 25-2-122, MCA, to support his argument that venue is properly in
Lake County.
        Both parties have lost sight of the issue in this case.
Constance wishes to set aside a settlement agreement which was
incorporated into a Lake County final judgment.                 She cannot
challenge the validity of the settlement agreement unless and until
the final judgment is set aside.             Therefore,   the sole question
before the District Court at the time it made its ruling was:
Which court should decide whether the final judgment may be
reopened?
        Whether a final judgment should be set aside is a legal
determination.      Falcon v. Faulkner (Mont. 1995), 903 P.2d 197, 52
St.Rep.    1011.    It does not arise from family law, contract, or
tort.      Accordingly the venue statutes which govern family law,
contracts, and torts are inapplicable in this case.
        Rule 60(b), M.R.Civ.P., does not specifically state that the
proper venue of an action to set aside a judgment is the county in
which the judgment was entered.               But neither does the Rule
contemplate     venue   being   elsewhere.    Constance cites no statute,

case,     or other authority to support her contention that venue for
an action arising under Rule 60(b), M.R.Civ.P., is properly in a
county other than that in which the judgment was entered.          Instead,
she     contends that her action is an independent one,             totally
separate from the judgment itself.
        We will grant that her suit is new and independent;         indeed,
since the underlying judgment is final and the divorce case closed,

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it could not be otherwise.   This does not mean, however, that her
case will be considered without regard to the earlier judgment.
That would be impossible.    She seeks to reopen a final judgment;
therefore,   the existing final judgment is the very basis for her
claim.   Her contention that this new case bears no relation to the
old one is altogether insupportable.
     Since the judgment Constance seeks to set aside was entered in
the Twentieth Judicial District Court, Lake County, we find no
error in the Missoula District Court's determination that venue is
properly in Lake County.
     Affirmed.




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Justice James C. Nelson specially concurs.

      While I agree with the result of our decision in this case, I
do not agree that our reasoning provides sufficient legal support
for the conclusion which we reach.
      As our opinion points out and, as Constance states in her
opening brief, her action was brought under the residuary clause of
Rule 60(b), M.R.Civ.P.         That part of the Rule provides:
      This rule does not limit the power of a                court to
      entertain an independent action to relieve a          party from
      a judgment, order, or proceeding, or to grant          relief to
      a defendant not actually personally notified          as may be
      required by law, or to set aside a judgment            for fraud
      upon the court.
This case, thus, raises the question: Which county is proper venue
for an independent action to set aside a judgment pursuant to Rule
60(b), M.R.Civ.P.? As our opinion states, the Rule itself does not
address this question one way or the other.
      Moreover,    it appears there are no Montana cases and little
other case law directly on point.     The New Mexico Supreme Court
    I
addressed this issue in Hort v. General Elec. Co., and stated that
an action brought under the residuary clause of Rule 60(b), "may be
brought     in the court that rendered the original judgment, in
another court, or by collateral attack in any proceeding in which
the validity of the judgment was in issue."            Hort v. General Elec.

co.   (N.M.   19781,     588 P.2d 560,       562 (citing 7 Moore's Federal
Practice,      1   60.25[3],    pp.   311-12    (1978)).   However, to the

contrary, See Banco Do Brasil v. Madison Steamship Corp. (1970), 61
Misc.2d 1028,      307   N.Y.S.2d 341, 345, wherein the appellate court

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stated that "the courts of one county will not act with respect to
the correction of judgments obtained and entered in another county,
nor the satisfaction of such judgments."
      While we have not heretofore directly addressed this issue we
have, nevertheless,      stated that independent actions seeking relief
from judgment brought pursuant to the residuary clause of Rule
60(b),     are suits in equity.   Brown v. Jensen (1988), 231 Mont. 340,
345, 753 P.2d 870, 874 (citing Selway v. Burns (1967), 150 Mont. 1,

8,   429 P.2d 640, 644, and Bullard v. Zimmerman (1930), 88 Mont.
271, 277, 292 P. 730, 732).
         Thus,   inasmuch as Constance's independent action under Rule
60(b) is a suit in equity, it follows that venue is not properly
determined under either 5 25-2-121, MCA,               (venue for contract
actions) or § 25-2-122, MCA,       (venue for tort actions).     Moreover,
since her action was not brought pursuant to Title 40, Chapter 4,
MCA, the venue provisions of § 25-2-118(3), MCA, are not applicable
either.
         Accordingly,   since no    other   specific    venue   statute is
applicable to Constance's cause of action and inasmuch as the
defendant, Berton,       resides in the state of Montana,         venue is
properly determined, by default, pursuant to 5 25-2-118(l), MCA.
That subsection of the statute provides that "the proper place of
trial for all civil actions is the county in which the defendants
or any of them may reside at the commencement of the action."
         This conclusion that 5 25-2-118(l), MCA, is the proper venue
statute for an independent action in equity under Rule 60(b),           is

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also supported by our prior case law.          In Great Northern Railway
Co. v. Hatch, we stated that I) [iln the absence of a constitutional
or statutory provision to the contrary, all equitable actions or
suits are properly triable in the county in which the defendants,
or any of them,     reside." Great Northern Railway Co. v. Hatch
(1934),   98 Mont. 269, 277, 38 P.2d 976, 979 (citing § 9096, Rev.
Codes 1921 (the predecessor to 5 28-2-118(l), MCA) and McKinney v.
Mires (1933), 95 Mont. 191, 198, 26         P.2d 169, 172) (emphasis
added).
       Accordingly, I conclude that the proper place for the trial of
Constance's independent action to set aside or vacate the judgment
in the prior dissolution action brought under the residuary clause
of Rule 60(b), M.R.Civ.P.,       being a suit in equity and in the
absence of any specific statutory venue provisions to the contrary,
is in the county in which the defendant, Berton, resided at the
commencement of her action.       Since Berton resided in Lake County,
that    county is   the    proper place for trial of         Constance's
independent    action,    and   the District    Court's   order granting
Berton's motion to change the place of trial from Missoula County
to Lake County must be affirmed.




Justice Karla M. Gray concurs in the foregoing special concurrence.




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