NO. 90-009 

IN THE SUPREME COURT OF THE STATE OF MONTANA 

1990 

IN RE THE CUSTODY AND 

VISITATION OF C.A.C. 

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APPEAL FROM: District Court of the Eighth Judicial ~istrict, 

In and for the County of Cascade, m ?; w 

The Honorable Thomas McKittrick, Judge giesid7ing. 

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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 respondent Joyce 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, Cascade County. Isakson responded by filing a motion for 

change of venue to Valley County. The District Court denied 

Isaksonls motion for change of venue 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 

respondent would have custody of the child and the petitioner would 

have liberal visitation rights and pay $75 per month in support. 

The agreement also stated that I1insofar as is legally permissible1' 

the parties designate the Seventeenth Judicial District Court in 

Valley County as the court of proper jurisdiction regarding 

enforcement or modification 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, 

Colorado establishing visitation and custody, but making no mention 

of a support obligation. The petitioner, however, had no further 
visitation or contact with the child until beginning the current 

action. 

The respondent mother and child moved back to Montana 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 support between May, 1981 and the time of the filing 

of this action. The respondent mother received AFDC payments from 

May, 1981 through January, 1989. 

In January, 1989, the petitioner 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 parties1 minor child, require his 

surname be given to the parties1 minor child and a substitute birth 

certificate be issued, and determine the support obligation. In 

March, 1989, the respondent mother filed a motion, brief and 

affidavit to change venue to Valley County, the resident county 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 respondent nor her attorney appeared. 

At the hearing, the District Court denied the respondent's motions 

for continuance and change of venue. On November 1, 1989, the 

court entered an order granting the petitioner liberal and 

reasonable visitation. The respondent mother appeals. 
The dispositive issue in this case is whether 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 that Valley County.as the child's residence is the proper 

venue pursuant to 5 40-4-211, MCA. 

The general venue statute provides: 

Unless otherwise specified in this part: 

(1) except as provided in subsection (3), 

the proper place of trial for all civil 

actions is the county in which the defendants 

or any of them may 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 cases brought under the Uniform Marriage 

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 action was brought under the Uniform Child Custody 

and Jurisdiction Act (UCCJA). 
In both the Colorado action and the present action the 

petition was for custody and visitation. The petition was not for 

dissolution of a marriage, as the parties were never married. In 

Wenz v. Schwartze (1979), 183 Mont. 166, 598 P.2d 1086, this Court 

outlined the two-part process required to determine whether Montana 

has jurisdiction to modify another state's decree under the UCCJA. 

That process required: (1) a determination that Montana had 

jurisdiction under 5 40-1-104, MCA, which by reference incorporates 

the jurisdictional prerequisites of 40-4-211, MCA; and (2) a 

determination that the decree state no longer had 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 in which 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 for most of her life. Thus, the proper 
county under the UCCJA is Valley 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 as well as visitation. The respondent's motion 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 instructions to grant the motion for change of venue to 

Valley County. 

Reversed. 

We concur: A 

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Chief Justice 

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