No. 81-409 

IN THE SUPREME COURT OF THE STATE OF MONTANA 

1982 

KENNETH A. KANE, 

Plaintiff and Appellant, 

VS. 

DONNA J. KANE, 

Defendant and Respondent. 

Appeal from: District Court of the Thirteenth Judicial District, 

In and for the County of Big Horn 

Honorable William J. Speare, Judge presiding. 

Counsel of Record: 

For Appellant: 

Richter and Acker, Billings, Montana 

Frank Richter argued, Billings, Montana 

For Respondent : 

Moses Law Firm, Billings, Montana 

Charles F. Noses argued, Billings, Montana 

Redle, Yonkee & Arney, Sheridan, Wyoming 

Submitted: April 2, 1982 
Mr. Chief Justice Frank I. Haswell delivered the Opinion 

of the Court. 

Plaintiff Kenneth Kane filed suit in the Thirteenth 

Judicial District Court against Shell Oil Company and Donna 

Kane, his former wife, seeking specific performance of an 

agreement to purchase land, damages, attorney fees and 

expenses related to sale of the land, and trustee's fees. 

Subsequently a stipulation was entered into by the parties 

and Shell Oil Company was dismissed from the suit. Motions 

for summary judgment were then filed by both Kenneth and 

Donna. The District Court denied the motions for summary 

judgment and dismissed the case without prejudice based upon 

its determination that the dispute might be more appropriately 

and justly decided in the Wyoming District Court. Kenneth 

appeals. 

In 1977, Kenneth was granted a divorce from his wife 

Donna by the Fourth Judicial District Court for the State of 

Wyoming. The divorce decree as modified provided that 

Kenneth was to convey to Donna an undivided one-half interest 

in certain property located in Big Horn County, Montana. 

The decree also provided that Kenneth was to act as trustee 

of a trust imposed on the Montana property and that Donna 

and Kenneth were both to execute any documents necessary to 

convey the property to Shell Oil Company if Shell Oil Company 

decided to exercise its option to purchase the property, an 

option it had acquired in 1975. The divorce decree further 

provided that in the event Donna and Kenneth disagreed 

concerning any transaction arising out of the decree, the 

matter was to be submitted to the Wyoming District Court for 

determination. 
Shell Oil Company decided to exercise its option. 

However, at the closing Donna refused to execute the documents 

needed to complete the transaction because a clerical error 

had been made in the divorce decree and Donna contended that 

if the error were not corrected she would not receive her 

correct share of the proceeds from the sale of the land. 

The Wyoming District Court later issued an order to correct 

the clerical mistake. 

Meanwhile Kenneth brought this action in the Thirteenth 

Judicial District Court, Big Horn County, Montana, seeking 

specific performance of the purchase agreement by Shell Oil 

Company and a judgment against Donna for damages related to 

her alleged interference with the closing, attorney fees and 

expenses connected with the sale of the Montana land, and 

trustee's fees. Donna and Shell Oil Company both crossclaimed and counterclaimed. 

In June 1980, a stipulation was entered into by the 

parties and Shell Oil Company was dismissed from the lawsuit. 

Both Kenneth and Donna then filed motions for summary 

judgment. In Donna's brief on the summary judgment motions 

she argued that as to one issue she was entitled to summary 

judgment but as to the remaining issues the Montana ~istrict 

Court lacked jurisdiction to decide the issues and that the 

appropriate forum was the Wyoming District Court. 

Both motions for summary judgment were denied and the 

case was dismissed without prejudice. The Montana ~istrict 

Court declined to exercise jurisdiction over any of the 

issues in the case based upon its determination that the 

case might be more appropriately and justly tried in the 

Wyoming District Court since there no longer existed any 

claim for specific performance and since the issues that 
remained all arose out of the Wyoming divorce decree. 

Kenneth appeals from the District Court's judgment. 

The issue presented in this appeal is whether the 

District Court erred in declining to accept jurisdiction of 

this case. 

Kenneth argues that the Montana District Court has 

jurisdiction to hear this case and that the "open court 

policy" set forth in the 1972 Montana Constitution, Art. 11, 

§ 16, requires the Montana District Court to exercise that 

jurisdiction. Donna contends that the Wyoming District 

Court is the appropriate forum for this case because the 

Wyoming District Court retained jurisdiction over disagreements 

arising out of the divorce decree. She argues that the 

provision in the divorce decree which states that such disagreements are to be submitted to the Wyoming ~istrict Court 

for determination should be given full faith and credit 

under the United States Constitution, Art. IV, § 1, or in 

the alternative that the provision in the divorce decree 

should be honored based on the doctrine of comity. 

We note first that the Full Faith and Credit Clause of 

the United States Constitution does not prohibit a state 

from exercising jurisdiction in a transitory cause of action 

even though a sister state has provided that action on the 

particular claim shall not be brought outside its territory. 

Tennessee Coal, I. & R. Co. v. George (1914), 233 U.S. 354, 

34 S.Ct. 587, 58 L.Ed. 997; Restatement (Second) of Conflict 

of Laws § 91 (1971). 

Nevertheless, the District Court properly declined to 

exercise jurisdiction in this case based on the doctrine of 

comity. 
"Comity is the basis for voluntary enforcement 

or recognition by one state of the judicial 

proceedings of a sister state. Mast Foos & 

Co. v. Stoerer Mfg. Co., 177 U.S. 485, 488-489, 

20 S.Ct. 708, 710, 44 L.Ed., 856 [ 1 (1900) ; 

. . . Comity is not a binding obligation on 

the forum state, but a courtesy voluntarily 

extended to another state for reasons of 'practice, 

convenience and expediency.' Mast Foos & Co., 

supra, 177 U.S., at 488, 20 S.Ct. at 710; . . . Deference is not offered, however, when it would 

contravene the public or judicial policy of the 

forum state. Thus, application of comity 

involves an examination by the Court of both 

the public policy of the forum state and the 

impact on that policy of enforcing the foreign 

proceeding." Philadelphia v. Austin (1981), 

86 N.J. 55, 429 A.2d 568. 

We determine that applying comity to this case does not 

contravene the public policy of the State of Montana. 

Montana does have an "open court policy." "Courts of justice 

shall be open to every person, and speedy remedy afforded 

for every injury of person, property, or character." 1972 

Mont. Const., Art. 11, S 16. This policy would not be 

thwarted by honoring the statement in the divorce decree 

which provides that disagreements arising out of the divorce 

decree are to be submitted to the Wyoming ~istrict Court 

for resolution. Donna and Kenneth are both residents of the 

State of Wyoming and there is a forum available in that 

state for the resolution of the issues raised by the parties 

in this case. 

Kenneth argues, however, that the issues remaining in 

this case did not arise out of the Wyoming divorce decree. 

We disagree. The claim that Donna acted incorrectly at the 

closing is related to her obligations under the decree and 

the issues of attorney fees, expenses and trustee's fees 

are likewise all directly related to the provisions of the 

divorce decree. 

We agree with the District Court that this case may be 

more appropriately and justly tried in the Wyoming District 
Court. The District Court correctly declined to exercise 

jurisdiction in the case, and we find no error in the 

District Court's denial of the motions for summary judgment 

since the case was dismissed without prejudice. 

Af f irmed. 

Chief Justice 

We Concur: 

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