No. 83-297 

IN THE SUPREME COURT OF THE STATE OF MONTANA 

1984 

IN RE THE MARRIAGE OF 

JOHN C. HOYT, 

Petitioner and Respondent, 

and 

HELEN J. HOYT, 

Respondent and Appellant. 

APPEAL FROM: District Court of the Ninth Judicial District, 

In and for the County of Glacier, 

The Honorable R. D. McPhillips, Judge presiding. 

COUNSEL OF RECORD: 

For Appellant: 

Howard F. Strause, Great Falls, Montana 

For Respondent : 

Frisbee, Moore & Stufft, Cut Bank, Montana 

Filed: 

Submitted on Briefs: November 3, 1983 

Decided: 3#4 3 6 m! 

Clerk 
Mr. Justice L.C. Gulbrandson delivered the Opinion of the 

Court. 

This case comes on appeal from an order of the 

District Court, Ninth Judicial District, Glacier County, 

denying appellant's motion for change of venue. We affirm 

the decision of the District Court. 

John C. Hoyt and Helen J. Hoyt were married in Great 

Falls, Montana, Cascade County, in September, 1970. On 

August 5, 1982, a petition for dissolution was filed by the 

husband in the Ninth Judicial District, Glacier County. The 

Clerk of Court issued a summons, although the wife later 

denied ever receiving the summons or petition. On October 

22, 1982, the husband's attorney filed a "Response" to the 

petition for dissolution purportedly signed by the wife. In 

that "Response," the wife allegedly waived her right to 

legal counsel, her right to the services of appraisers and 

accountants and asked the District Court to grant the 

petition for dissolution filed by her husband. The cause 

was heard on February 3, 1983. The husband appeared and was 

represented by counsel but the wife did not appear 

personally nor through counsel. After hearing the husband's 

testimony the District Court entered its findings of facts, 

conclusions of law and decree of dissolution on that same 

date. On March 9, 1983, a notice of entry of judgment and a 

copy of the judgment were mailed to the wife. 

On April 4, 1983, the wife filed a motion for change 

of venue requesting that the matter be moved from Glacier 

County to Cascade County. In support of her motion for 

change of venue, the wife filed an affidavit alleging the 

petition for dissolution was never served upon her and the 
"Response" was filed without her knowledge or consent. In 

addition, she alleged in her affidavit that she was unaware 

of the contents of the "Response1' when she signed the 

document and that her motion for change of venue was her 

first appearance in the matter. 

On April 20, 1983, at the hearing on the motion for 

change of venue, the wife testified that her husband had her 

sign the "Response" without letting her read its contents 

and that she was intoxicated at the time she signed the 

document. In addition, the wife testified that she had 

lived in Cascade County a period of approximately fifty 

years, including the twelve years she and the her husband 

were married. At the conclusion of the hearing, the 

District Court denied the motion for change of venue and the 

wife thereafter appealed. 

Initially, we note that the appellant never made a 

motion in District Court to withdraw her appearance. Thus, 

we cannot consider that issue on appeal. 

A motion for change of venue should not be granted 

once judgment has been entered. The general rule is stated 

in 92 C.J.S. Section 166, p. 880 which provides: 

"After judgment by default a cause will 

not be removed for trial. After a 

default has been set aside, a defendant 

may apply for a change of venue, and 

while no judgment should be set aside to 

allow a change of venue, if proper 

grounds exist for setting aside the 

judgment, it may be done, and a change of 

venue granted for proper cause." 

(footnotes omitted.) 

Thus, rather than make the motion for change of venue, the 

appellant could have moved for relief from judgment under 

Rule 60(b), M.R.Civ.P. and then, if the motion were granted, 

attempt to withdraw her initial appearance and request a 
change of venue. Until the judgment was set aside, the 

District Court could not grant appellant's motion for change 

of venue. Thus, appellant's motion was untimely and the 

District Court properly denied the motion. 

We affirm. 

1 

Justice 

We concur: 

4&*~ r .' 

Chief Justice *