IN THE SUPREME COURT OF THE STATE OF MONTANA

NO. 93-208

IN RE THE MARRIAGE OF

ROBERT ALTON SMITH,

Petitioner and Respondent,

and

LORI MOFFATT SMITH,

Respondent and Appellant.

I

) OPINION

AND

ORDER

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