Marriage of Falcone , 2012 MT 71N ( 2012 )

April 2 2012
DA 11-0454
IN THE SUPREME COURT OF THE STATE OF MONTANA
2012 MT 71N
IN RE THE MARRIAGE OF:
ALEXIS BRANDON FALCONE,
Petitioner and Appellant,
and
ANTHONY JOHN FALCONE,
Respondent and Appellee.
APPEAL FROM: District Court of the Twentieth Judicial District,
In and For the County of Sanders, Cause No. DR 11-20
Honorable Deborah Kim Christopher, Presiding Judge
COUNSEL OF RECORD:
For Appellant:
Jean Adele Carter, Attorney at Law; Thompson Falls, Montana
For Appellee:
Timothy G. Goen, Attorney at Law; Thompson Falls, Montana
Submitted on Briefs: February 22, 2012
Decided: April 2, 2012
Filed:
__________________________________________
Clerk
Justice Jim Rice delivered the Opinion of the Court.
¶1 Pursuant to Section I, Paragraph 3(d), Montana Supreme Court Internal Operating Rules,
this case is decided by memorandum opinion and shall not be cited and does not serve as
precedent. Its case title, cause number, and disposition shall be included in this Court’s quarterly
list of noncitable cases published in the Pacific Reporter and Montana Reports.
¶2 Alexis Brandon Falcone (Alexis) and Anthony John Falcone (Anthony) were married in
Orange County, Virginia, in April 2009, and resided there together until Alexis moved to
Montana in October 2010. Anthony filed a petition for annulment of the marriage in Virginia on
November 17, 2010. Alexis filed a petition for dissolution of the marriage in Montana on March
28, 2011. Anthony was served with Alexis’s petition on April 6, 2011, while Alexis was served
with Anthony’s petition on April 23, 2011.
¶3 Anthony filed a motion and affidavit in the Montana Twentieth Judicial District Court to
dismiss and to change the venue of the proceeding to Virginia. He argued that the District Court
lacked jurisdiction but alternatively argued that, even if the court had jurisdiction, Montana was
an inconvenient forum and Virginia was the more appropriate state for the proceeding. Alexis
filed an answer brief and affidavit in opposition to the motion. The District Court issued an
order granting Anthony’s motion. The court did not conduct a hearing or state its reasoning for
the order, other than to indicate that it had “considered the motion, the briefs, the affidavits, and
the pleadings on file in this matter.”
¶4 Alexis appeals, arguing that the District Court erred and denied her due process by
converting Anthony’s motion into a motion for summary judgment without giving notice to the
parties under M. R. Civ. P. 12(b)(6) (2009), citing Farmers Coop. Ass’n v. Amsden, LLC, 2007
MT 287, 339 Mont. 452, 171 P.3d 684. Offering that it is undisputed that she resided in
2
Montana for at least 90 days before filing her petition, Alexis asks this Court to declare that her
petition was “properly filed” and to remand the case to the District Court with directions to try
the case on the merits. She offers that this Court’s standard of review is abuse of discretion.
¶5 Anthony argues that Alexis fails to recognize that Montana and Virginia have jurisdiction
over the respective petitions filed in each state, and that the issue is not whether Montana has
jurisdiction over Alexis’s petition, but whether the District Court abused its discretion in
declining to exercise jurisdiction and deferring to the exercise of jurisdiction by Virginia. He
cites the similar case of In re Marriage of Myrland, 2010 MT 286, 359 Mont. 1, 248 P.3d 290.
¶6 We have determined to decide this case pursuant to Section I, Paragraph 3(d) of our
Internal Operating Rules, which provides for noncitable memorandum opinions. “The standard
of review of a decision on a motion to decline jurisdiction is whether the district court abused its
discretion.” Myrland, ¶ 11 (citation omitted). The issues in this case are ones of judicial
discretion, and there clearly was not an abuse of discretion. The District Court’s order was not in
the nature of summary judgment requiring further notice, as it was not “a final adjudication on
the merits.” Meagher v. Butte-Silver Bow City-County, 2007 MT 129, ¶ 20, 337 Mont. 339, 160
P.3d 552. Alexis received due process.
¶7 Affirmed.
/S/ JIM RICE
We concur:
/S/ JAMES C. NELSON
/S/ MICHAEL E WHEAT
/S/ BETH BAKER
/S/ BRIAN MORRIS
3