No. 79-64
IN THE SUPREME COURT OF THE STATE OF MONTANA
1980
IN RE THE MARRIAGE OF
DENNIS MICHAEL BILLINGS,
Petitioner and Respondent,
VS .
LEONA PENELOPE BILLINGS (UNDERWOOD),
Respondent and Appellant.
Appeal from: District Court of the Fourth Judicial District,
Honorable Jack L. Green, Judge presiding.
In and for the County of Missoula.
Counsel of Record:
For Appellant:
Williams and Sverdrup, Libby, Montana
For Respondent:
Datsopoulos, MacDonald & Lind, Missoula, Montana
Submitted on briefs: April 3, 1980
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Mr. Justice Daniel J. Shea delivered the Opinion of the Court.
Leona Penelope Billings appeals from an order of the
is sou la County ~istrictCourt which denied her motion to
change venue from Missoula to Lincoln County in relation to
a custody dispute arising out of a marriage which was dissolved
in Missoula County in 1973. We affirm.
The marriage of this couple was dissolved in 1973 in
Missoula County District Court and the wife received custody
of the two children and the husband was ordered to pay $100
per month for child support. This is the third petition
filed by the father to modify provisions of the divorce
decree. In 1975 the father sought to modify the property
distribution decree and to reduce child support payments.
The parties resolved this dispute by stipulation. In March
1977 the husband again petitioned to modify visitation
rights. The mother filed a counterpetition which sought
also to modify the visitation rights and to compel the
father to pay an arrearage in child support. This dispute
was again resolved by stipulation.
On September 13, 1979, the father filed a third petition
in Missoula County District Court, this time seeking custody
of the parties' minor son. The mother responded by filing a
consolidated motion for change of venue, to dismiss, to
strike, and for a more definite statement. She wanted the
venue changed to Lincoln County where she had been living
the past several years (which included the times within
which the previous petitions were filed and settled in
Missoula County). The trial court denied the mother's
request for a change of venue and the mother's appeal followed.
The wife's reliance on Ronchetto v. Ronchetto (19771,
173 Mont. 285, 567 P.2d 456, as authority for a change of
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venue h e r e , h a s a b s o l u t e l y no m e r i t . I n Ronchetto, t h e
c o u p l e w a s d i v o r c e d i n Nevada and l a t e r b o t h moved t o B u t t e ,
Montana. The f a t h e r , mother, and c h i l d w e r e r e s i d e n t s o f
S i l v e r Bow County when t h e p e t i t i o n w a s f i l e d t o modify t h e
Nevada c u s t o d y d e c r e e .
The mother n e x t a r g u e s t h a t s h e h a s an a b s o l u t e r i g h t
t o a change of venue based on s e c t i o n 25-2-108, MCA, which
i s t h e g e n e r a l venue s t a t u t e . The s t a t u t e p r o v i d e s t h a t
a c t i o n s " s h a l l be t r i e d i n t h e c o u n t y i n which t h e d e f e n d a n t s
. . . may r e s i d e a t t h e commencement o f t h e a c t i o n . " (Emphasis
added.) The mother a r g u e s t h a t t h e f a t h e r ' s p e t i t i o n t o modify
t h e c u s t o d y d e c r e e i s t h e commencement o f a new a c t i o n , and
t h e r e f o r e t h a t s h e i s e n t i t l e d t o have t h e venue changed t o
L i n c o l n County, h e r p l a c e of r e s i d e n c e . B e f o r e t h e Uniform
M a r r i a g e and Divorce A c t , it was t h e l a w t h a t t h e t r i a l c o u r t
has continuing j u r i s d i c t i o n i n matters of c h i l d custody. Libra
v . L i b r a ( 1 9 6 9 ) , 154 Mont. 222, 462 P.2d 178; B u t l e r v. Brownlee
( 1 9 6 9 ) , 152 Mont. 453, 451 P.2d 836; and Barbour v . Barbour
( 1 9 5 8 ) , 134 Mont. 317, 330 P.2d 1093. Furthermore, t h e enact-
ment o f t h e Uniform M a r r i a g e and Divorce A c t d i d n o t change
t h i s fundamental c o n c e p t . G i a n o t t i v . McCracken ( 1 9 7 7 ) , 174
Mont. 209, 569 P.2d 929; Foss v. L e i f e r ( 1 9 7 6 ) , 170 Mont. 97,
550 P.2d 1309.
This i s a f r i v o l o u s appeal. I t s o n l y apparent purpose
i s t o d e l a y an u l t i m a t e h e a r i n g on t h e m e r i t s i n r e l a t i o n t o
t h e f a t h e r ' s p e t i t i o n t o modify t h e c u s t o d y p r o v i s i o n s o f
t h e divorce decree.
W condemn t h e u s e o f t h e a d v e r s a r y s y s t e m and t h e
e
a p p e l l a t e process f o r bringing needless l i t i g a t i o n o r i n
f r u s t r a t i n g t h e r i g h t o f an opposing p a r t y t o a t i m e l y h e a r i n g
on t h e m e r i t s of h i s c a s e . I n Weinheimer v. S c o t t (19641,
143 Mont. 243, 388 P.2d 790, t h i s C o u r t , p u r s u a n t t o i t s
authority under Rule 32, M.R.App.Civ.P., assessed $500
in damages against the plaintiffs' lawyer who admitted during
oral arguments that he was responsible for the delays involved
in the case, and for bringing the proceedings which slowed
the ultimate resolution of the case.
The problem we are faced with here is that we do not
know who is responsible for bringing the appeal. Did the
client insist on appealing the order denying the motion for
a change of venue, or did the lawyer advise the client that
considerable delay could be accomplished by appealing the
order denying her motion for a change of venue? We cannot
ignore the fact that the client may have little or no means
to pay an assessment of damages for undertaking a frivolous
appeal.
.
Co
In Alaska Pacific Assur./& Raines v. L. H. & C., Inc.
& Hartman, Cause No. 79-103, Decided 9/10/80, we ordered the
insurance company to pay $500 in damages because its appeal
was frivolous. It was clear under those facts that the insur-
ance company, client, and counsel for the insurance company
knew or should have known that it had commenced a frivolous
proceedings before the Workers' Compensation Court and had
taken a frivolous appeal from the order of that court. The
$500 could just as easily have been assessed against the
lawyers representing the insurance company, for we cannot
ignore the influence which lawyers have on their clients in
reaching a decision to appeal. It is rarely a unilateral
decision of the client taken without the advice of counsel.
This Court is being flooded with appeals involving
property distribution and child custody. We remind the legal
profession that the speedy and fair resolution of these problems
must be uppermost in their minds. his is an area of law
where the adversary system does not lend itself too well
to this objective. A little creativity and a little cooper-
ation by lawyers practicing in this area can do much to
help the trial courts reach speedy and equitable decisions,
and do much to aid and speed up the decision-making processes
of this Court should an appeal be undertaken. The taking of
frivolous appeals does not lend itself to that goal. Should
this practice continue, we will be compelled to increasingly
invoke the sanctions permitted by Rule 32. We hope that the
legal profession will keep these admonitions in mind.
The order denying the mother's motion for a change of
venue to litigate the child
We Concur:
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Chief Justice
Justices
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