In Re the Custody & Visitation of C. A. C. ( 1990 )

NO. 90-009
IN THE SUPREME COURT OF THE STATE OF MONTANA
1990
IN RE THE CUSTODY AND
VISITATION OF C.A.C.
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APPEAL FROM: District Court of the Eighth Judicial ~istrict,
In and for the County of Cascade, m ?; w
The Honorable Thomas McKittrick, Judge giesid7ing.
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COUNSEL OF RECORD:
For Appellant:
Arnie A. Hove, Attorney at Law, Circle, Montana
For Respondent:
Art Tadewaldt, Attorney at Law, Great Falls,
Montana
Submitted on Briefs: August 30, 1990
Decided: October 30, 1990
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Filed:
Justice Diane G. Barz delivered the Opinion of the Court.
Petitioner Dale Kemmis and respondent Joyce King Isakson are
parents of a minor child, C.A.C. Kemmis filed a petition for
custody and visitation of the minor child in the Eighth Judicial
District, Cascade County. Isakson responded by filing a motion for
change of venue to Valley County. The District Court denied
Isaksonls motion for change of venue and issued an order granting
Kemmis reasonable and liberal visitation with the minor child.
Isakson now appeals. We reverse.
During the late 1970's Dale Sidney Kemmis and Joyce King
Isakson lived together in Glasgow, Montana. On August 27, 1977,
a daughter, C.A.C., was born to the parties. When the petitioner
and the respondent separated in October 1978, they entered into a
custody and support agreement. The agreement provided that the
respondent would have custody of the child and the petitioner would
have liberal visitation rights and pay $75 per month in support.
The agreement also stated that I1insofaras is legally permissible1'
the parties designate the Seventeenth Judicial District Court in
Valley County as the court of proper jurisdiction regarding
enforcement or modification of the agreement.
Shortly after the separation the respondent mother and child
moved to Colorado. After being denied visitation, the petitioner
obtained an order from the district court in Rio Blanco County,
Colorado establishing visitation and custody, but making no mention
of a support obligation. The petitioner, however, had no further
visitation or contact with the child until beginning the current
action.
The respondent mother and child moved back to Montana in 1980
and have lived in Valley County for most of the time since.
Department of Revenue records indicate that the petitioner paid
only $434 in support between May, 1981 and the time of the filing
of this action. The respondent mother received AFDC payments from
May, 1981 through January, 1989.
In January, 1989, the petitioner filed an action in District
Court, Cascade County, the county of his residence, asking the
court to adopt and enforce the Colorado order, make provisions for
custody and visitation of the parties1 minor child, require his
surname be given to the parties1 minor child and a substitute birth
certificate be issued, and determine the support obligation. In
March, 1989, the respondent mother filed a motion, brief and
affidavit to change venue to Valley County, the resident county of
the child. The Montana Department of Revenue was joined as a
necessary party and the court issued a temporary visitation order
without ruling on the change of venue motion on July 31, 1989.
The hearing on an order to show cause was held October 24,
1989 before Judge Thomas McKittrick. The petitioner was present
with counsel but neither the respondent nor her attorney appeared.
At the hearing, the District Court denied the respondent's motions
for continuance and change of venue. On November 1, 1989, the
court entered an order granting the petitioner liberal and
reasonable visitation. The respondent mother appeals.
The dispositive issue in this case is whether venue properly
lies in the county where the petitioner resides or the county of
the child's residence.
The petitioner argues that Cascade County, where he resided
90 days prior to filing the petition for custody and visitation,
is the proper venue pursuant to 5 25-2-118, MCA. In her initial
appearance the respondent filed a motion for change of venue
arguing that Valley County.as the child's residence is the proper
venue pursuant to 5 40-4-211, MCA.
The general venue statute provides:
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;
(2) if none of the defendants reside in
the state, the proper place of trial is any
county the plaintiff designates in the
complaint;
(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.
Section 25-2-118, MCA. Subparagraph (3) of 9 25-2-118, MCA,
provides an exception for cases brought under the Uniform Marriage
and Divorce Act found in Title 40, chapter 4.
Although the petitioner repeatedly claims that this case was
filed under the Uniform Marriage and Divorce Act (UMDA), it is
clear that this action was brought under the Uniform Child Custody
and Jurisdiction Act (UCCJA).
In both the Colorado action and the present action the
petition was for custody and visitation. The petition was not for
dissolution of a marriage, as the parties were never married. In
Wenz v. Schwartze (1979), 183 Mont. 166, 598 P.2d 1086, this Court
outlined the two-part process required to determine whether Montana
has jurisdiction to modify another state's decree under the UCCJA.
That process required: (1) a determination that Montana had
jurisdiction under 5 40-1-104, MCA, which by reference incorporates
the jurisdictional prerequisites of 40-4-211, MCA; and (2) a
determination that the decree state no longer had jurisdiction or
had declined to exercise its jurisdiction. Pierce v. Pierce
(1982), 197 Mont. 16, 21, 640 P.2d 899, 902-03. Under the UCCJA
the proper county for venue in a child custody case is found in 5
40-4-211, MCA, which reads in pertinent part:
(4) A child custody proceeding is commenced
in the district court:
(a) by a parent, by filing a petition:
(i) for dissolution or legal separation; or
(ii) for custody of the child in the county in
which he is permanently resident or found; or
(b) by a person other than a parent, by
filing a petition for custody of the child in
the county in which he is permanently resident
or found, but only if he is not in the
physical custody of one of his parents.
Section 40-4-211(4), MCA.
In this case, the child has been a continuous resident of
Valley County for nearly two years. In addition, she has been a
resident of Valley County for most of her life. Thus, the proper
county under the UCCJA is Valley County.
The instant case illustrates the need for the entire matter
to be heard in the child's home county where an informed decision
concerning her best interests can be made on child support and
custody as well as visitation. The respondent's motion for change
of venue should be granted. We therefore vacate the District
Court's order dated November 1, 1989 and remand to the District
Court with instructions to grant the motion for change of venue to
Valley County.
Reversed.
We concur: A