                             NO.    93-003
           IN THE SUPREME COURT OF THE STATE OF MONTANA
                                   1993


IN RE THE MARRIAGE OF
ROSEMARY ELLEN BERNETHY,
           Petitioner and Respondent,
     and
TIMOTHY LEE BERNETHY,
           Respondent and Appellant.



APPEAL FROM:    District Court of the Thirteenth Judicial District,
                In and for the County of Yellowstone,
                The Honorable Robert W. Holmstrom, Judge presiding.


COUNSEL OF RECORD:

           For Appellant:
                Robert L. Jovick, Attorney at Law,
                Livingston, Montana
           For Respondent:
                Kevin T. Sweeney, Sweeney    & Healow,
                Billings, Montana
Justice Terry N. Trieweiler delivered the opinion of the Court.
      Timothy Bernethy appeals from an order of the District Court
of the Thirteenth Judicial District in Yellowstone County which
denied his second motion to change venue.         We affirm.
      The sole issue on appeal is whether the District Court erred
when it denied Timothy's motion to change venue from Yellowstone
County to Park County.
      For 15 years, Rosemary and Timothy Bernethy lived with their
two children in Gardiner, which is located in Park County. In
August   1991,   Rosemary separated from her husband and moved to
Bozeman to attend Montana State University.       She subsequently moved
to   Billings,   which is located in Yellowstone County.                Since
January 1, 1992, Rosemary has resided continuously in Billings at
the same address.
      On August 4,     1992,   Rosemary   filed     a   petition   in    the
Yellowstone County District Court for dissolution of her marriage
and other relief, including the custody and support of her minor
children.   Rosemary also filed a supporting affidavit in which she
asserted that she lived in Billings.
      On August 31, 1992, Timothy, who had lived in Park County for
the previous 15 years, moved for change of venue to Park County.
He asserted that Yellowstone County was not a proper county for the
dissolution proceedings because Rosemary had not complied with the
residency requirement set forth in § 25-2-118(3), MCA, because she
had not lived in Yellowstone County for 90 days preceding the
filing of her dissolution petition.

                                   2
        On September 10, 1992,    Rosemary filed a second affidavit
stating that since January 1, 1992,        she had lived in Billings
continuously.     She asserted that she was a registered student at

Eastern Montana College, in Billings, and that she had attended

classes there from January 1992 through May 1992.       Rosemary   also
filed supporting documents, including her driver's license, a bank

statement,    and a student loan application which corroborated her

testimony that she was a Billings resident.

        The District Court relied on Rosemary's affidavits, and on

September 22, 1992, the court denied Timothy's motion for change of
venue.      The court held that pursuant to § 25-2-118(3), MCA, the

proper place for trial of this action is Yellowstone County.

        While the dissolution proceedings were pending,        Timothy
learned that Rosemary had commuted between Billings and Bozeman for

a six-week period from late May to early July 1992 in order to

attend a math class at MSU.      Rosemary testified that she stayed in

Pray,    which is located in Park County, on school nights during the

six weeks and that she returned to her home in Billings on the

weekends.

        Upon discovery of this new information that Rosemary spent a

portion of a six-week period away from Billings, Timothy requested

the court to reconsider his motion for change of venue.            The
District Court denied Timothy's second motion for venue change.

        The applicable statute in this case is § 25-2-118, MCA, which

states:



                                    3
     Residence         of    defendant.   Unless   otherwise   specified   in
     this part:

           (1)  except as provided in subsection (3),      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:

           .   .   .    .

           (3) the proper place of trial of an action brought
     pursuant to Title 40, chapter 4, is the county in which
     the petitioner has resided during the 90 days preceding
     the commencement of the action.

     On   appeal,           Timothy asserts that venue should not lie in

Yellowstone County because Rosemary was away from Billings for a

portion of a six-week period prior                  to filing her dissolution

petition on August 4, 1992.              He contends that because she was away,

she did not comply with the go-day residency requirement set forth

in 5 25-2-118(3), MCA.

     Section       1-1-215,       MCA,    sets forth rules for determining

residency in Montana.            Section 1-1-215, MCA, provides:

     Every person has, in law, a residence. In determining
     the place of residence the following rules are to be
     observed:

           (1) It is the place where one remains when not
     called elsewhere for labor or other special or temporary
     purpose and to which he returns in seasons of repose.

           (2) There can only be one residence.

           (3) A residence cannot be lost until another is
     gained.

           .   .   .    .

          (6)  The residence can be changed only by the union
     of act and intent.
      Based on our review of the record, we conclude that Rosemary
is   a Billings    resident and that she resided continuously in
Billings at the same address for seven months before filing her
dissolution petition on August 4, 1992.         The fact that Rosemary
commuted from Billings to Bozeman and Pray during the school week,
and was temporarily away from her home residence of Billings while
she completed one six-week math class at MSU, does not mean that
Billings was not her residence during this time.
      Section   l-1-215(1), MCA, recognizes that an individual, like
Rosemary, may have to leave her residence for a temporary purpose,
such as commuting a distance to attend school: and this temporary
leave does not change the individual's residence.       Lima School Dktrkt

No.12~. Simomen (1984), 210 Mont. 100, 109, 683 P.2d 471, 475-76.

      We conclude that the District Court did not err when it denied
Timothy's motion to change venue.       Because Rosemary was a resident
of Yellowstone County for the 90 days preceding the filing of her
dissolution     petition,   venue was proper in Yellowstone County.
Section 25-2-118(3), MCA.
      We affirm the decision of the District Court.




We concur:




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                                            October 5, 1993
EDSMITH
  CLERK
                                     CERTIFICATE OF SERVICE

   I hereby certify that the following order was sent by United States mail, prepaid, to the following
   named:


   Robert L. Jovick
   Attorney at Law
   P.O. Box 1245
   Livingston, MT 59047

   Kevin T. Sweeney
   Sweeney & Healow
   1250-15th St. W., Ste. 202
   Billings, MT 59102


                                                        ED SMITH
                                                        CLERK OF THE SUPREME COURT
                                                        STATE OF MONTANA
