MARRIAGE OF HOYT
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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 Submitted on Briefs: Decided: Filed: Clerk November 3, 1983 3#4 3 6 m ! Mr. Justice L.C. Court. This case Gulbrandson delivered the Opinion of the 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. that "Response," the wife allegedly waived her In right to legal counsel, her right to the services of appraisers and accountants and asked the District Court to petition for dissolution filed by her husband. grant the The cause was heard on February 3, 1983. The husband appeared and was represented the by counsel but personally nor through counsel. wife did not appear 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 " R e s p o n s e " was f i l e d w i t h o u t h e r knowledge o r c o n s e n t . In a d d i t i o n , s h e a l l e g e d i n h e r a f f i d a v i t t h a t s h e was unaware of contents the of the "Response1' document and t h a t h e r m o t i o n when she f o r change of signed the v e n u e was h e r f i r s t appearance i n t h e matter. 1983, a t t h e h e a r i n g on t h e motion f o r On A p r i l 2 0 , c h a n g e o f v e n u e , t h e w i f e t e s t i f i e d t h a t h e r h u s b a n d had h e r s i g n t h e "Response" w i t h o u t l e t t i n g h e r and that s h e was document. lived in years, were In intoxicated addition, Cascade County at the read time the wife of she testified a period its contents signed that she approximately the had fifty i n c l u d i n g t h e t w e l v e y e a r s s h e and t h e h e r husband married. At the conclusion of the hearing, the D i s t r i c t C o u r t d e n i e d t h e m o t i o n f o r c h a n g e o f v e n u e and t h e wife t h e r e a f t e r appealed. Initially, we note that the a p p e l l a n t never motion i n D i s t r i c t Court t o withdraw her appearance. made a Thus, we c a n n o t c o n s i d e r t h a t i s s u e on a p p e a l . A motion for change of o n c e judgment h a s b e e n e n t e r e d . i n 9 2 C.J.S. venue should n o t be g r a n t e d The g e n e r a l r u l e i s s t a t e d S e c t i o n 1 6 6 , p . 880 w h i c h p r o v i d e s : " A f t e r judgment by d e f a u l t a c a u s e w i l l n o t b e removed f o r t r i a l . After a d e f a u l t h a s been s e t a s i d e , a d e f e n d a n t may a p p l y f o r a c h a n g e o f v e n u e , a n d w h i l e no judgment s h o u l d b e s e t a s i d e t o allow a change of venue, i f proper grounds e x i s t f o r s e t t i n g aside the j u d g m e n t , i t may b e d o n e , and a c h a n g e o f venue granted for proper cause." (footnotes omitted.) Thus, r a t h e r t h a n make t h e m o t i o n f o r c h a n g e o f v e n u e , a p p e l l a n t c o u l d h a v e moved R u l e 6 0 ( b ) , M.R.Civ.P. attempt for relief the f r o m judgment u n d e r and t h e n , i f t h e m o t i o n w e r e g r a n t e d , t o withdraw h e r i n i t i a l a p p e a r a n c e 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 W e concur: 4 & * ~ r . ' Chief Justice *
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