NO. 90-009 IN THE SUPREME COURT OF THE STATE OF MONTANA 1990

IN RE THE CUSTODY AND VISITATION OF C.A.C.

<- - 

### -. 2 APPEAL FROM: District Court of the Eighth Judicial ~istrict, In and for the County of Cascade, m?; 

### w The Honorable Thomas McKittrick, Judgegiesid7ing. c cD

COUNSEL OF RECORD: For Appellant: Arnie A. Hove,Attorney at Law, Circle, Montana For Respondent: Art Tadewaldt,Attorney at Law, Great Falls, Montana

Filed: Submitted on Briefs: August 30, 1990 Decided: October 30, 1990 *Justice Diane G. Barz delivered the Opinion of the Court.

Petitioner Dale Kemmis and respondentJoyce King Isakson are parents of a minor child, C.A.C. Kemmis filed a petition for custody and visitation of the minor child in the Eighth Judicial District, CascadeCounty. Isaksonrespondedby filinga motion for change of venue to Valley County. The District Court denied Isaksonlsmotion for change ofvenue and issued an order granting Kemmis reasonable and liberal visitation with the minor child. Isakson now appeals. We reverse. During the late 1970's Dale Sidney Kemmis and Joyce King Isakson lived together in Glasgow, Montana. On August 27, 1977, a daughter, C.A.C., was born to the parties. When the petitioner and the respondent separated in October 1978, they entered into a custody and support agreement. The agreement provided that the respondentwould have custody of thechild and thepetitionerwould have liberal visitation rights and pay $75 per month in support. The agreementalso stated that I1insofaras is legally permissible1' the parties designate the Seventeenth Judicial District Court in Valley County as the court of proper jurisdiction regarding enforcement ormodification of the agreement. Shortly after the separation the respondent mother and child moved to Colorado. After being denied visitation, the petitioner obtained an order from the district court in Rio Blanco County, Coloradoestablishing visitation and custody,but making nomention of a support obligation. The petitioner, however, had no furthervisitation or contact with the child until beginning the current action. The respondent mother and childmoved back toMontana in 1980 and have lived in Valley County for most of the time since. Department of Revenue records indicate that the petitioner paid only $434 in supportbetween May, 1981 and the time of the filing of thisaction. The respondent mother received AFDC payments from May, 1981 through January, 1989. In January, 1989, thepetitioner filed an action in District Court, Cascade County, the county of his residence, asking the court to adopt and enforce the Colorado order,make provisions for custody and visitation of the parties1minor child, require his

surnamebegiven to theparties1minor child and a substitutebirth certificate be issued, and determine the support obligation. In March, 1989, the respondent mother filed a motion, brief and affidavitto change venue toValley County, the residentcounty of the child. The Montana Department of Revenue was joined as a necessary party and the court issued a temporary visitation order without ruling on the change of venue motion on July 31, 1989. The hearing on an order to show cause was held October 24, 1989 before Judge Thomas McKittrick. The petitioner was present with counsel but neither the respondentnor her attorney appeared. At thehearing, theDistrictCourt denied the respondent'smotions for continuance and change of venue. On November 1, 1989, the court entered an order granting the petitioner liberal and reasonablevisitation. The respondentmother appeals.The dispositive issue in this case iswhether venue properly lies in the county where the petitioner resides or the county of the child's residence. The petitioner argues that Cascade County,where he resided 90 days prior to filing the petition for custody and visitation, is the proper venue pursuant to 5 25-2-118, MCA. In her initial appearance the respondent filed a motion for change of venue arguing thatValley County.asthe child's residence is the proper
venue pursuant to 5 40-4-211,MCA. The general venue statuteprovides: Unless otherwise specified in this part: (1) except asprovided in subsection (3), the proper place of trial for all civil actions is the county in which the defendants or any of themmay reside at the commencement of the action; (2) if none of the defendants reside in the state, the proper place of trial is any county the plaintiff designates in the complaint; (3) the proper place of trial of an action brought pursuant to Title 40, chapter 4, is the county in which the petitioner has resided during the 90 days preceding the commencement of the action. Section 25-2-118, MCA. Subparagraph (3) of 9 25-2-118, MCA, provides an exception for casesbrought under the UniformMarriage and Divorce Act found in Title 40, chapter 4. Although the petitioner repeatedly claims that this case was filed under the Uniform Marriage and Divorce Act (UMDA), it is clear that this actionwas brought under theUniform Child Custody and JurisdictionAct (UCCJA).In both the Colorado action and the present action the petitionwas for custody and visitation. Thepetitionwas not for dissolution of amarriage, as the parties were never married. In Wenz v. Schwartze (1979), 183Mont. 166, 598 P.2d 1086, this Court outlined thetwo-part processrequiredtodeterminewhetherMontana has jurisdictiontomodify another state'sdecree under the UCCJA. That process required: (1) a determination that Montana had jurisdiction under 5 40-1-104,MCA,whichby reference incorporates the jurisdictional prerequisites of 40-4-211, MCA; and (2) a determination that the decree state no longerhad jurisdiction or had declined to exercise its jurisdiction. Pierce 

### v. Pierce

(1982), 197 Mont. 16, 21, 640 P.2d 899, 902-03. Under the UCCJA the proper county for venue in a child custody case is found in 5 40-4-211,MCA,which reads in pertinent part: (4) A child custody proceeding is commenced in the district court: (a) by a parent, by filing a petition: (i) for dissolution or legal separation; or (ii) for custody of the child in the county in which he is permanently resident or found; or

(b) by a person other than a parent, by filing a petition for custody of the child in the county inwhich he is permanently resident or found, but only if he is not in the physical custody of one of his parents. Section 40-4-211(4), MCA. In this case, the child has been a continuous resident of Valley County for nearly two years. In addition, she has been a resident of Valley County formost of her life. Thus, the propercounty under the UCCJA isValley County. The instant case illustrates the need for the entire matter to be heard in the child's home county where an informed decision concerning her best interests can be made on child support and custody aswell asvisitation. The respondent'smotion for change of venue should be granted. We therefore vacate the District Court's order dated November 1, 1989 and remand to the District Court with instructionsto grant themotion for change of venue to Valley County. Reversed.

We concur: A 

# <./A%+-

Chief Justice 

# @z,&/d Justices 

### //