Custody and Parenting of B.C.B.W. , 343 Mont. 215 ( 2008 )

April 29 2008
DA 07-0272
IN THE SUPREME COURT OF THE STATE OF MONTANA
2008 MT 147
IN RE THE CUSTODY AND
PARENTING PLAN OF B.C.B.W.,
A Minor Child.
J.M.B.,
Petitioner and Appellee,
v.
J.W.,
Respondent and Appellant.
APPEAL FROM: District Court of the Fifth Judicial District,
In and For the County of Beaverhead, Cause No. DR 06-12994
Honorable Loren Tucker, Presiding Judge
COUNSEL OF RECORD:
For Appellant:
Kristin West, D. Michael Eakin; Montana Legal Services Association
Billings, Montana
For Appellee:
Thomas R. Scott, Attorney at Law, Dillon, Montana
Submitted on Briefs: January 23, 2008
Decided: April 29, 2008
Filed:
__________________________________________
Clerk
Chief Justice Karla M. Gray delivered the Opinion of the Court.
¶1 J.W. (Mother) appeals from an order of the Fifth Judicial District Court, Beaverhead
County, transferring venue in this custody and parenting plan case to Gallatin County, the
home county of J.M.B. (Father). We reverse and remand with instructions.
¶2 The issue on appeal is whether the District Court erred in transferring venue to
Gallatin County.
BACKGROUND
¶3 Mother and Father are the parents of B.C.B.W. (Daughter), who was born in 2002 and
was four years old at the time the underlying case commenced. The parents never married,
and Mother and Daughter lived in Billings, Yellowstone County, Montana, from the time of
Daughter’s birth. Father lived with them for several months and then moved to Bozeman,
Gallatin County, Montana. Daughter’s paternal grandmother, Denise, resides in Beaverhead
County, Montana, and took Daughter there from Billings on December 5, 2006, apparently at
Mother’s request to facilitate her move to a new residence.
¶4 Father petitioned the District Court for custody of Daughter, and a parenting plan, on
December 18, 2006, and filed his proposed parenting plan the same day. The petition
alleged Daughter’s residence was in Beaverhead County at that time. Father moved for
temporary orders of custody and protection of Daughter the same day, and filed supporting
affidavits alleging child abuse of Daughter by Mother. The District Court entered its
temporary order of custody to Father on December 19, 2006.
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¶5 On December 29, 2006, Mother moved for a change of venue to Yellowstone County
and filed a supporting brief. She alleged that Daughter resided in Yellowstone County,
neither of the parents lived in Beaverhead County and the facts upon which Father was
seeking relief arose in Yellowstone County. The parties fully briefed the motion, and the
District Court filed its Order Transferring Venue to Gallatin County, Father’s county of
residence, on March 13, 2007. Recognizing Father’s acknowledgement that venue statutes
required his petition to be heard in Yellowstone County, the court based its transfer of venue
to Gallatin County on Father’s allegations of child abuse. Mother appeals.
STANDARD OF REVIEW
¶6 The determination of proper venue is a question of law involving the application of
Montana’s venue statutes to the pleaded facts. Our review of a district court’s grant or denial
of a motion to change venue is plenary; we merely determine whether the court’s decision is
legally correct. Circle S Seeds of Montana, Inc. v. Montana Merchandising, Inc, 2006 MT
311, ¶ 5, 335 Mont. 16, ¶ 5, 157 P.3d 671, ¶ 5 (citations omitted).
DISCUSSION
¶7 Did the District Court err in transferring venue to Gallatin County?
¶8 Mother contends that, under §§ 25-2-118(3) and 40-4-211, MCA, Yellowstone
County is the proper venue for Father’s custody and parenting plan action. We agree.
¶9 “The proper place of trial for an action brought pursuant to Title 40, chapter 4, is the
county in which the petitioner or the respondent has resided during the 90 days preceding the
filing of the action.” Section 25-2-118(3), MCA. Under this general venue statute, if
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Father’s proceeding was brought under Title 40, chapter 4, both Gallatin and Yellowstone
Counties would be proper places for trial. Father did not file in either of those counties and,
however, as a result, he waived his right to have the matter tried in the county of his
residence. See § 25-2-201(1), MCA; Ford v. Montana Dept. of Fish, Wildlife and Parks, 208
Mont. 132, 136, 676 P.2d 207, 209 (1984); Seifert v. Gehle, 133 Mont. 320, 322-23, 323
P.2d 269, 270 (1958). We conclude Mother was entitled to a change of venue to
Yellowstone County pursuant to § 25-2-118(3), MCA.
¶10 More importantly, however, a specific venue statute exists with regard to venue in a
parenting plan proceeding. Pursuant to § 40-4-211(4), MCA, a parenting plan proceeding
must be initiated in the district court in the county where the child is permanently resident or
found. Daughter was not permanently resident or permanently found in Beaverhead County,
where Father filed his petition. Daughter permanently resided in Yellowstone County and
was temporarily found in Beaverhead County in December of 2006.
¶11 In this latter regard, Father argues that § 40-4-211(4), MCA, is not the only specific
venue statute applicable here. He asserts that his proceeding is a paternity proceeding in
addition to a parenting procedure. He posits that the venue provision contained in § 40-6-
109, MCA, applies. This contention is without merit and also otherwise flawed.
¶12 Section 40-6-109, MCA, is contained within Montana’s Uniform Parentage Act (Act).
See § 40-6-101, MCA. That Act governs the establishment of parent and child relationships
outside of marriage, paternity proceedings and other matters relating to such relationships.
See generally §§ 40-6-102 through -131, MCA. A person bringing a paternity action seeks a
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judicial determination of the existence of the father and child relationship. See § 40-6-107,
MCA.
¶13 Section 40-6-109(3), MCA, provides that an action brought under the Act may be
brought in the county in which the child or the alleged father resides. The threshold
question, therefore, is whether Father’s petition was “brought under the Act.” He cites to the
first two paragraphs of his petition, but they provide no support for his position. Those
paragraphs merely state that he is the natural father—and Mother is the natural mother—of
Daughter, and go on to describe their respective ages, occupations, residence addresses and
domiciles.
¶14 More tellingly, the caption of Father’s petition is “In re the Custody and Parenting
Plan of” Daughter. While the caption would not control the contents of the petition if the
two were at odds, nothing in Father’s petition supports his argument that this was a paternity
action. Indeed, the relief sought is an award of primary care, custody and control of
Daughter, a determination that Father’s parenting plan is in Daughter’s best interests and
adoption of that plan, and a determination of child support. We are not persuaded that
Father’s petition was, even in part, a paternity action.
¶15 Even assuming arguendo that Father’s petition sought a paternity determination,
however, venue for such an action would be in Yellowstone County, where Daughter resides,
or in Gallatin County, where Father resides. See § 40-6-109(3), MCA. He chose to file the
petition in Beaverhead County, an improper county. Thus, § 25-2-201(1), MCA, Ford and
Seifert again would entitle Mother to a change of venue to Yellowstone County.
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¶16 Coming full circle, we return to the District Court’s order transferring venue and
observe that the order cites to not a single venue statute or other legal authority in support of
its determination that the “proper venue is Father’s home county [and t]hat county is
Gallatin.” The court’s decision rested on its concern that Mother had not refuted Father’s
allegations of child abuse and that its primary goal was to protect the child by “not requiring
the child to return to Mother’s home in Yellowstone County.” The District Court’s concerns
are understandable. However, they are not relevant to determining proper venue as a matter
of law. Absent proper venue, the allegations of abuse and other matters pertinent to Father’s
petition cannot be addressed. Moreover, transferring venue of the proceeding to
Yellowstone County would not have required returning Daughter to Mother’s home in light
of the District Court’s award of temporary custody to Father.
¶17 Father advances here—as he did in the District Court—Stoneman v. Drollinger, 2003
MT 25, 314 Mont. 139, 64 P.3d 997, a case involving the Uniform Child Custody
Jurisdiction and Enforcement Act (UCCJEA) which is found in Title 40, chapter 7 of the
MCA. The issue in Stoneman—which had a long history in Montana courts—was whether
the trial court erred in denying the former wife’s motion to decline to exercise jurisdiction as
an inconvenient forum under the UCCJEA. Stoneman, ¶ 2. The background included
repeated guilty pleas to partner and family member assault by Stoneman, several court-
issued orders of protection and violations thereof, and other determinations of violent
behavior by Stoneman. Stoneman, ¶¶ 4, 27.
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¶18 The trial court in Stoneman acknowledged the well-documented history of domestic
violence, but denied the ex-wife’s motion to decline jurisdiction in favor of Washington
where she and the children had been living. It did not consider which forum could best
protect them. Stoneman, ¶¶ 4, 30, 34. On appeal, we ultimately held—after considering all
the UCCJEA factors—that Washington was the more appropriate forum for determining a
visitation plan for Stoneman and the children. We directed the Montana trial court to decline
jurisdiction as an inconvenient forum. Stoneman, ¶¶ 42-43.
¶19 Stoneman has no application here. In the present case, no violent or abusive conduct
by Mother had been judicially determined in any court prior to her motion to change venue.
Nor was the UCCJEA, a motion regarding jurisdiction or even a motion to change venue on
forum non conveniens at issue.
¶20 We hold the District Court erred as a matter of law in transferring venue to Gallatin
County and in denying Mother’s motion to change venue to Yellowstone County. This case
must be remanded to the Eighteenth Judicial District Court, Gallatin County, for the purpose
of that court’s immediate remand to the Fifth Judicial District Court, Beaverhead County.
Upon the occurrence of that event, we direct the Beaverhead County District Court to
immediately vacate its order transferring venue to Gallatin County, and to enter an order
granting Mother’s motion to change venue to Yellowstone County.
¶21 Reversed and remanded for further proceedings consistent with this Opinion.
/S/ KARLA M. GRAY
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We concur:
/S/ JAMES C. NELSON
/S/ W. WILLIAM LEAPHART
/S/ PATRICIA COTTER
/S/ JOHN WARNER
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