In Re the Support Obligation of McGurran , 310 Mont. 268 ( 2002 )

No. 01-446
IN THE SUPREME COURT OF THE STATE OF MONTANA
2002 MT 144IN RE THE SUPPORT OBLIGATION OF:
MARK T. McGURRAN,
Obligor,
and
DEBRA L. UDELHOVEN,
Petitioner/Appellant,
MONTANA DEPARTMENT OF PUBLIC
HEALTH AND HUMAN SERVICES,
CHILD SUPPORT ENFORCEMENT DIVISION,
Respondent/Respondent.
APPEAL FROM: District Court of the Tenth Judicial District,
In and for the County of Judith Basin,
The Honorable John C. McKeon, Judge presiding.
COUNSEL OF RECORD:
For Appellant:
Charles Frederick Unmack, Hubble, Ridgeway, Unmack & Westveer,
Stanford, Montana
For Respondent:
Valerie A. Bashor, Special Assistant Attorney General, DPHHS Child
Support Enforcement Division, Missoula, Montana
Submitted on Briefs: December 28, 2001
Decided: June 27, 2002
Filed:
__________________________________________
Clerk
Justice Terry N. Trieweiler delivered the Opinion of the Court.
¶1 Petitioner, Debra L. Udelhoven, filed a Petition for Judicial
Review of a Modification Consent Order of the Department of Public
Health and Human Services (DPHHS), Child Support Enforcement
Division (CSED), in the District Court for the Tenth Judicial
District Court in Judith Basin County. The Modification Consent
Order reduced the child support obligation of the Respondent, Mark
T. McGurran. CSED moved to dismiss the petition for failure to
exhaust administrative remedies and lack of jurisdiction. The
District Court granted the motion to dismiss based on lack of
jurisdiction. Udelhoven appeals the District Court's dismissal.
We reverse the order of the District Court.
¶2 The sole issue on appeal is whether the District Court erred
as a matter of law when it dismissed the Petition for Judicial
Review for lack of jurisdiction based on its conclusion that the
petition should have been filed in a different county.
FACTUAL AND PROCEDURAL BACKGROUND
¶3 On January 11, 2001, Mark T. McGurran filed a Request for
Review of a CSED administrative child support order which had been
issued on November 17, 1998. The November 17, 1998, order required
McGurran to pay $703 every month to Debra L. Udelhoven for the
support of their son. It also required that he provide health
insurance coverage for their child.
¶4 On April 4, 2001, CSED issued a Modification Consent Order
which reduced McGurran's child support obligation from $703 a
month to $432 a month. McGurran remained responsible for providing
health insurance coverage. The effective date of the modification
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was April 1, 2001. Prior to that date, CSED had sent a copy of the
proposed modification to both McGurran and Udelhoven. In a letter
dated February 28, 2001, CSED informed Udelhoven that the
Modification Consent Order would take effect if arbitration was not
requested by April 2, 2001. CSED did not receive an arbitration
request prior to that date.
¶5 On or about April 16, 2001, Udelhoven filed a Petition for
Judicial Review of the Modification Consent Order in the District
Court for Judith Basin County. At the time the petition was filed,
Udelhoven resided in Colorado and CSED had its primary office in
Lewis & Clark County.
¶6 CSED filed a Motion to Dismiss the Petition for Judicial
Review on two grounds. First, CSED claimed that Udelhoven had
failed to exhaust her administrative remedies because she had not
requested arbitration. Second, CSED claimed that the District
Court lacked subject matter jurisdiction because the action was
filed in the wrong county. The District Court granted CSED's
Motion to Dismiss based on its conclusion that because the petition
was filed in the wrong county, it was without jurisdiction. On
June 25, 2001, Udelhoven appealed the District Court's order
granting CSED's Motion to Dismiss.
STANDARD OF REVIEW
¶7 "[A] district court's determination that it lacks jurisdiction
over a matter is a conclusion of law which we review to determine
whether the district court's interpretation of the law is correct."
In re McGurran, 1999 MT 192, ¶ 7, 295 Mont. 357, ¶ 7, 983 P.2d
3
968, ¶ 7 (citing Hilands Golf Club v. Ashmore (1996), 277 Mont.
324, 328, 922 P.2d 469, 472).
DISCUSSION
¶8 Did the District Court err as a matter of law when it
dismissed the Petition for Judicial Review for lack of jurisdiction
based on its conclusion that the petition should have been filed in
a different county?
¶9 Udelhoven contends that the District Court confused the
concepts of jurisdiction and venue, and, as a result, erred as a
matter of law when it granted CSED's Motion to Dismiss for lack of
jurisdiction. Udelhoven argues that jurisdiction refers to the
inherent power of a court to decide a controversy, whereas venue
designates the particular county or city in which a court with
jurisdiction may hear and determine the case. Accordingly, because
all Montana district courts have subject matter jurisdiction over
petitions for judicial review of administrative decisions,
Udelhoven asserts that CSED's failure to file in the proper county
did not divest the District Court of subject matter jurisdiction.
Udelhoven, therefore, contends that the District Court's conclusion
that it lacked jurisdiction based on improper venue was incorrect
as a matter of law.
¶10 CSED contends that its Motion to Dismiss for lack of
jurisdiction was proper because the Legislature has the sole
discretion to define the scope of judicial review of administrative
decisions and has provided certain requirements which define the
district court's authority. It asserts that Udelhoven's failure to
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follow the requirements of § 2-4-702(2)(a), MCA, which includes
filing in the proper venue, divested the District Court of
jurisdiction.
¶11 The District Court agreed with CSED. The District Court
concluded that "MCA § 2-4-702(2)(a) is more than a mere venue
statute; it is the legislative designation under Montana's
Constitution, Article VII, § 4 of the particular courts to have
jurisdiction for judicial review." The District Court interpreted
§ 2-4-702(2)(a), MCA, as a requirement that "a petition for
judicial review must be filed in the correct venue for the court to
obtain jurisdiction." We conclude that the District Court's
interpretation of the law is incorrect.
¶12 This Court has long recognized the distinction between
"jurisdiction" and "venue." In general terms, jurisdiction is a
court's authority to hear and determine a case, and goes to the
"power" of the court. Stanton Trust & Savings Bank v. Johnson
(1937), 104 Mont. 235, 235, 65 P.2d 1188, 1189. Jurisdiction
cannot be waived or conferred by consent of the parties where there
is no basis for jurisdiction under the law. In re Marriage of
Miller (1993), 259 Mont. 424, 427, 856 P.2d 1378, 1380.
¶13 Venue, on the other hand, refers to the place where the case
is to be heard, or where the power of the court can be exercised.
Stanton Trust, 104 Mont. at 235, 65 P.2d at 1189. Venue is a
personal privilege of the defendant and, thus, may be waived. It
is, in fact, deemed waived unless a motion to change the venue is
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made at the defendant's initial appearance. Rule 12(b)(ii),
M.R.Civ.P.
¶14 The distinction between jurisdiction and venue is clearly
expressed in the most recent edition of Black's Law Dictionary,
which states:
The distinction must be clearly understood between
jurisdiction, which is the power to adjudicate, and
venue, which relates to the place where judicial
authority may be exercised and is intended for the
convenience of the litigants. It is possible for
jurisdiction to exist though venue in a particular
district is improper, and it is possible for a suit to be
brought in the appropriate venue though it must be
dismissed for lack of jurisdiction. The most important
difference between venue and jurisdiction is that a party
may consent to be sued in a district that otherwise would
be an improper venue, and it waives its objection to
venue if it fails to assert it promptly.
Black's Law Dictionary 1554 (7th ed. 1999) (citing Charles Alan
Wright, The Law of Federal Courts § 42, at 257 (5th ed. 1994)).
Although the cited treatise author was referring to federal courts,
the distinction is equally applicable to Montana state courts.
Another noted legal scholar distinguished jurisdiction from venue
in the following way:
Jurisdiction deals with the power of a court to hear and
dispose of a given case; . . . . Venue is of a distinctly
lower level of importance; it is simply a statutory
device designed to facilitate and balance the objectives
of optimum convenience for parties and witnesses and
efficient allocation of judicial resources.
Black's Law Dictionary 1553-54 (7th ed. 1999) (citing Jack H.
Friedenthal et al., Civil Procedure § 2.1, at 10 (2d ed. 1993)).
¶15 Here, Udelhoven's filing of a Petition for Judicial Review
vested the District Court with jurisdiction. Pursuant to Article
VII, Section 4, Subsection 1 of the Montana Constitution, "[t]he
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district court has original jurisdiction in . . . all civil matters
and cases at law and in equity." See also § 3-5-302(1)(b) and -
(c), MCA. Statutorily, jurisdiction to review administrative
decisions is conferred on district courts by § 2-4-702(2)(a), MCA,
of the Montana Administrative Procedure Act, which states in
relevant part that:
Except as provided in subsection (2)(c), proceedings
for review must be instituted by filing a petition in
district court within 30 days after service of the final
decision of the agency or, if a rehearing is requested,
within 30 days after the decision is rendered.
Because Montana district courts are vested with jurisdiction over
appeals from final administrative decisions in contested cases, the
Tenth Judicial District could hear and decide Udelhoven's Petition
for Judicial Review.
¶16 Whether venue was proper in Judith Basin County involved an
entirely different issue for the District Court's consideration.
Section 2-4-702(2)(a), MCA, in addition to granting jurisdiction to
the District Court, also sets forth the proper place where a
contested administrative decision can be heard, and provides:
Except as otherwise provided by statute, the petition
must be filed in the district court for the county where
the petitioner resides or has the petitioner's principal
place of business or where the agency maintains its
principal office.
Such a requirement is nothing more than a venue provision, and is
no different than any other venue provision contained within
Montana Code Annotated. Venue provisions are not jurisdictional.
See generally § 25-2-112, MCA ("The designation of a county in this
part [Title 25, Chapter 2, Part 1] as a proper place of trial is
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not jurisdictional and does not prohibit the trial of any cause in
any court of this state having jurisdiction.").
¶17 The distinction between jurisdiction and venue is further
illustrated by the requirement in § 2-4-702(2)(b), MCA, that a
petition for judicial review must "include a concise statement of
the facts upon which jurisdiction and venue are based . . . ."
(Emphasis added.) Requiring that facts upon which both
jurisdiction and venue are based be separately set forth recognizes
that they are different requirements.
¶18 The District Court's conclusion that the venue provision set
forth in § 2-4-702(2)(a), MCA, is jurisdictional is incorrect as a
matter of law. Upon proper motion, this matter should have been
transferred to the proper county. However, CSED instead filed its
Motion to Dismiss for lack of jurisdiction. By failing to file a
motion to change venue at the time of CSED's first appearance, CSED
waived its right to later object to venue. Rule 12(b)(ii),
M.R.Civ.P.; see also Spiker Communications v. Dept. of Commerce,
1998 MT 32, ¶ 10, 287 Mont. 345, ¶ 10, 954 P.2d 1145, ¶ 10. The
District Court in Judith Basin County is, therefore, a proper place
for trial of this matter absent agreement by the parties to
transfer venue.
¶19 Accordingly, we reverse and remand to the District Court for
further proceedings consistent with this Opinion.
/S/ TERRY N. TRIEWEILER
We Concur:
8
/S/ W. WILLIAM LEAPHART
/S/ PATRICIA COTTER
/S/ JIM REGNIER
/S/ JIM RICE
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Chief Justice Karla M. Gray, specially concurring.
¶20 I concur in the result the Court reaches. I also agree
entirely with the Court's discussion regarding the distinctions
between jurisdiction and venue, and the paramount importance of
jurisdiction, without which a court lacks the power and authority
to act in a matter. My interpretation of the statute at issue
differs somewhat from that of the Court, however, and I write
separately to clarify that difference.
¶21 It is undisputed that the broad jurisdictional grant to
district courts over "all civil matters and cases at law and in
equity" is conferred by Article VII, Section 4(1) of the 1972
Montana Constitution. Section 3-5-302(1)(b) and (c), MCA, simply
reiterate the constitutional grant of jurisdiction. They are not
at all necessary to confer such jurisdiction and, indeed, neither §
3-5-302, MCA, nor any other statute properly could limit or
restrict the jurisdiction conferred by the constitution.
¶22 With regard to the first sentence in § 2-4-702(2)(a), MCA, the
Court states that it "confers" jurisdiction on the district courts.
Given the discussion immediately above, it is clear that I
disagree with the Court's statement. The statement in § 2-4-
702(2)(a), MCA, that "proceedings for review must be instituted by
filing a petition in district court . . ." does not confer
jurisdiction. At the very most, it--like § 3-5-302(1)(b) and (c), MCA--
merely reiterates the constitutional grant of jurisdiction. In my view, a better interpretation
of that statement is that it simply sets forth the procedure to be followed in commencing a
judicial review proceeding. Read in that manner, it is clear that the second sentence in § 2-4-
702(2)(a), MCA, can only be what the Court properly interprets it to be--a venue statute.
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¶23 Were it not for the broad constitutional grant of jurisdiction
to district courts, I would be inclined to interpret the second
sentence of § 2-4-702(2)(a), MCA, as a jurisdictional limitation
requiring the filing of petitions for judicial review in the county
of petitioner's residence/primary place of business or where the
agency maintains its principal office. That is to say, without the
constitutional element in the mix, I do not believe this would be a
mere venue statute; nor do I believe the Legislature intended it to
be a mere venue statute. The language in § 2-4-702(2)(a), MCA,
states that the petition for judicial review "must be filed in" one
of the above-mentioned counties. This language differs
significantly from the language used by the Legislature in its
various civil venue statutes, which generally state only that
"[t]he proper place of trial [for a given type of civil case] is"
and then list the counties in which venue--that is, the proper
location--is appropriate. See, e.g., §§ 25-2-121 and 25-2-122,
MCA. In short, it is my view that the Legislature probably
intended--because of both the plain language used in § 2-4-
702(2)(a), MCA, and the plain, but very different, language used in
venue statutes--that jurisdiction over petitions for judicial
review be limited to those counties stated in § 2-4-702(2)(a), MCA.
The Legislature simply may not have understood that it is not free
to limit the broad jurisdiction over "civil matters and cases at
law and in equity" conferred by the Montana Constitution.
¶24 I agree with the Court that the District Court erred in
concluding that § 2-4-702(2)(a), MCA, is a "legislative designation
. . . [of] jurisdiction" with regard to petitions for judicial
review of final agency decisions.
/S/ KARLA M. GRAY
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Justice James C. Nelson joins in the foregoing specially concurring opinion.
/S/ JAMES C. NELSON
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