In Re the Marriage of Smith , 50 State Rptr. 1151 ( 1993 )

IN THE SUPREME COURT OF THE STATE OF MONTANA
NO. 93-208
IN RE THE MARRIAGE OF
ROBERT ALTON SMITH,
Petitioner and Respondent,
I
and ) O P I N I O N
A N D
LORI MOFFATT SMITH, O R D E R
Respondent and Appellant.
Appellant, Lori Moffatt Smith (Lori), filed a Notice of Appeal
on March 24, 1993. Respondent, Robert A. Smith (Robert), filed his
Motion to Dismiss Appeal on July 15, 1993. The bases for this
motion are that the appeal was taken from interlocutory rulings and
that Lori's motion for a change of venue was not timely filed.
Also on July 15, 1993, Lori filed, pro se, her Motion for
Extension and Supporting Memorandum, requesting a sixty day
extension in which to file her initial brief on appeal. We
previously extended the original deadline for filing that brief by
forty-five days on May 27, 1993. By order dated July 16, 1993, we
granted Lori's motion and gave her until September 20, 1993, in
which to file her brief.
On July 27, 1993, Lori filed a Motion for Extension and
Memorandum requesting an additional ten days to file a response to
Robert's Motion to Dismiss Appeal. On July 27, 1993, we granted
that notion and ordered Lori to file a response to Robert's notion
by August 10, 1993.
On August 10, 1993, Lori filed her response to Robert's notion
and stated that the issues raised in his motion were the ones to be
addressed in her initial brief, which we previously ordered to be
filed by September 20, 1993. Lori did not respond to the merits of
Robert's Motion to Dismiss Appeal. Along with her August 10, 1993,
response, Lori filed a Motion to Defer Response, Motion for Joinder
of William Boggs, Esq., and Supporting Memorandum. On August 17,
1993, we granted Lori's Motion to Defer Response and ordered Lori
to file her initial brief by September 20, 1993, and further
ordered Lori to respond to the merits and issues raised in Robert's
Motion to Dismiss Appeal. We denied Lori's Motion to Join William
Boggs.
Lori has now filed her initial brief on appeal and, as we
stated in our August 17, 1993, order, we are prepared to rule on
Robert's Motion to Dismiss Appeal.
This dissolution proceeding was commenced in the Eighth
Judicial District Court, Cascade County, Montana, in 1985. Over
the years, the District Court has presided over a number of
proceedings related to child custody. On June 5, 1991, Robert
filed a Motion for Contempt and Motion to Modify Custody in the
District Court, asserting that Lori was frustrating Robert in his
attempts to exercise visitation and seeking a change of the child's
primary residential custodian. Various motions and other documents
2
were filed by the parties. In the fall of 1991, after the case had
been set for trial, Lori sought an order from the District Court
restraining Robert from exercising visitation, on the grounds that
Robert allegedly sexually abused the child. (This was later
acknowledged by the child to be untrue.) The District Court
refused to stay visitation: Lori then sought assistance from
Missoula County, and the Fourth Judicial District Court ordered the
issuance of temporary investigative authority to the Department of
Family Services.
Initiation of the Missoula County proceedings caused the
Eighth Judicial District Court to defer its proceedings. On
September 28, 1992, the Fourth Judicial District Court entered its
Order for Implementation of DFS Treatment Plan. That order
specifically stated that the implementation of the treatment plan
did not prevent either party from pursuing the action pending in
Cascade County.
After that order, Robert moved the Eighth Judicial District
Court to reset his Motion for Custody for trial, which was
subsequently set for March 25, 1993. On March 18, 1993, Lori filed
a number of motions, including one to change venue to Missoula
County. On March 22, 1993, the District Court denied her motions.
From the denial of those motions, Lori appealed.
The Notice of Appeal filed by Lori states that she is
appealing. from the District Court's order which (1) denied the
motion to stay proceedings: (2) denied the change of venue: and (3)
3
denied the motion for a protective order as to discovery.
Generally, interlocutory orders are not appealable. See
Bostwick v. Dep't of Highways (1980), 188 Mont. 313, 315, 613 P.zd
997, 998. The denial of a motion to stay and a motion for a
protective order are interlocutory in nature, and are not
appealable orders within the scope of Rule 1, M0nt.R.App.P. For
that reason, Lori may not appeal these issues until the District
Court enters a final judgment.
As to Lori's claim that the District Court erred in granting
her request for a change of venue, we note that Rule l(b),
M.R.App.P. allows an appeal from an order denying a change of
venue. State ex rel. Kesterson v. District Court (1980), 189 Mont.
20, 22-23, 614 P.2d 1050, 1051. However, the request for a change
of venue must be timely made. Rule 12(b), Mont.R.Civ.P., requires
that a motion for a change of venue be made within twenty days
after the response to the pleading is filed. Here, the dissolution
proceeding was commenced in 1985, and Robert's motion for custody
was filed on June 5, 1991. The motion to change venue was not
filed until March 18, 1993. Clearly, Lori's motion to change venue
was not timely made. In addition, Lori has made numerous
appearances in the Eighth Judicial District Court, and has not
challenged venue in that District Court at any of these
appearances, prior to filing her motion for a change of venue.
For the foregoing reasons,
IT IS HEREBY ORDERED that the Petitioner/Respondent's Motion
4
to Dismiss Appeal should be and is hereby GRANTED, and
Respondent/Appellant's appeal should be and is hereby DISMISSED
WITHOUT PREJUDICE.
IT IS HEREBY FURTHER ORDERED that the Clerk of this Court
serve Robert's counsel of record and Lori, pro se, by mail with a
copy of this Order.
Dated this October, 1993.
October 5, 1993
CERTIFICATE OF SERVICE,
I hereby certify that the following order was sent by United States mail, prepaid, to the following
named:
Lori Moffatt Smith
P.O. Box 9155
Missoula, MT 59807
K. Dale Schwanke
Jardine, Stephenson, Blewett & Weaver, P.C.
P.O. Box 2269
Great Falls. MT 59403.2269
ED SMITH
CLERK OF THE SUPREME COURT
STATE OF MONTANA