In re SCB

In re SCB, 2015 MT 19 (Jan. 27, 2015) (Cotter, J.) (5-0, rev’d)

Issue: Whether district court properly granted venue change in parenting plan action.

Short Answer: No.

Reversed & remanded

Facts: SCB was born in 2006. SCB and Burrington have lived with Burrington’s mother, Hovland, in Flathead County for most of SCB’s life. Hovland financially supports Burrington and SCB.

Burrington was convincted of her fourth DUI in December 2013 and sentenced to four years with the DOC, all suspended. She and SCB moved in March 2014 to Havre. In May 2014 Burrington’s probation officer conducted a home visit, found Burrington severely intoxicated, and called police. Burrington was arrested and detained for 20 days, and Hovland was contacted to pick up SCB in Havre.

Procedural Posture & Holding: In June 2014, Hovland petitioned for a parenting plan establishing her as SCB’s primary care provider and for a TRO against Burrington. Burrington moved for a change of venue to Havre. After a hearing, the court granted the motion and transferred the proceeding. The court further ordered that SCB remain with his grandmother “until further order.” Hovland appeals and the Supreme Court reverses.

Reasoning: Parenting plans are governed by § 40-4-211, which states that a proceeding initiated by a person other than a parent must be filed “in the county in which the child resides or is found.” MCA § 40-4-211(4)(b). The district court relied on § 1-1-215, MCA, which states that the residence of an unmarried minor child is the residence of the parent having legal custody and concluded Hill County was the proper venue.

Because § 40-4-211 specifically addresses venue in a parenting plan proceedings, it governs, not § 1-1-215, MCA.

SCB is “found” in Flathead County, where he resides with his grandmother. Thus, Flathead County is a proper venue. Even if Hill County is also a proper venue, when there are multiple proper venues and the proceeding is filed in a proper place, no motion for venue can be granted on the grounds of improper venue. MCA § 25-2-115.