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: November 3, 1983 Decided: 3#4 3 6 m!

Filed:

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

document and t h a t h e r m o t i o n f o r change of v e n u e was h e r f i r s t appearance i n t h e matter.

On A p r i l 2 0 , 1983, a t t h e h e a r i n g on t h e motion f o r

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 read its contents

and that s h e 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, 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

were 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 made a motion i n D i s t r i c t Court t o withdraw her appearance. 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 venue should n o t be g r a n t e d o n c e judgment h a s b e e n e n t e r e d . The g e n e r a l r u l e i s s t a t e d

i n 9 2 C.J.S. 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 , the a p p e l l a n t c o u l d h a v e moved for relief f r o m judgment u n d e r R u l e 6 0 ( b ) , M.R.Civ.P. 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 , attempt 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 *