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No. 81-409 IN THE SUPREME COURT OF THE STATE OF MONTANA 1982

KENNETH A. KANE, Plaintiff and Appellant,
VS.

DONNA J. KANE, Defendant and Respondent.

Appeal from:

District Court of the Thirteenth Judicial District, In and for the County of Big Horn Honorable William J. Speare, Judge presiding.

Counsel of Record: For Appellant: Richter and Acker, Billings, Montana Frank Richter argued, Billings, Montana For Respondent : Moses Law Firm, Billings, Montana Charles F. Noses argued, Billings, Montana Redle, Yonkee & Arney, Sheridan, Wyoming

Submitted:

April 2, 1982

Mr. Chief Justice Frank I. Haswell delivered the Opinion of the Court. Plaintiff Kenneth Kane filed suit in the Thirteenth Judicial District Court against Shell Oil Company and Donna Kane, his former wife, seeking specific performance of an agreement to purchase land, damages, attorney fees and expenses related to sale of the land, and trustee's fees. Subsequently a stipulation was entered into by the parties and Shell Oil Company was dismissed from the suit. Motions

for summary judgment were then filed by both Kenneth and Donna. The District Court denied the motions for summary

judgment and dismissed the case without prejudice based upon its determination that the dispute might be more appropriately and justly decided in the Wyoming District Court. appeals. In 1977, Kenneth was granted a divorce from his wife Donna by the Fourth Judicial District Court for the State of Wyoming. The divorce decree as modified provided that Kenneth

Kenneth was to convey to Donna an undivided one-half interest in certain property located in Big Horn County, Montana. The decree also provided that Kenneth was to act as trustee of a trust imposed on the Montana property and that Donna and Kenneth were both to execute any documents necessary to convey the property to Shell Oil Company if Shell Oil Company decided to exercise its option to purchase the property, an option it had acquired in 1975. The divorce decree further

provided that in the event Donna and Kenneth disagreed concerning any transaction arising out of the decree, the matter was to be submitted to the Wyoming District Court for determination.

Shell Oil Company decided to exercise its option. However, at the closing Donna refused to execute the documents needed to complete the transaction because a clerical error had been made in the divorce decree and Donna contended that if the error were not corrected she would not receive her correct share of the proceeds from the sale of the land. The Wyoming District Court later issued an order to correct the clerical mistake. Meanwhile Kenneth brought this action in the Thirteenth Judicial District Court, Big Horn County, Montana, seeking specific performance of the purchase agreement by Shell Oil Company and a judgment against Donna for damages related to her alleged interference with the closing, attorney fees and expenses connected with the sale of the Montana land, and trustee's fees. Donna and Shell Oil Company both cross-

claimed and counterclaimed. In June 1980, a stipulation was entered into by the parties and Shell Oil Company was dismissed from the lawsuit. Both Kenneth and Donna then filed motions for summary judgment. In Donna's brief on the summary judgment motions she argued that as to one issue she was entitled to summary judgment but as to the remaining issues the Montana ~istrict Court lacked jurisdiction to decide the issues and that the appropriate forum was the Wyoming District Court. Both motions for summary judgment were denied and the case was dismissed without prejudice. The Montana ~istrict

Court declined to exercise jurisdiction over any of the issues in the case based upon its determination that the case might be more appropriately and justly tried in the Wyoming District Court since there no longer existed any claim for specific performance and since the issues that

remained all arose out of the Wyoming divorce decree. Kenneth appeals from the District Court's judgment. The issue presented in this appeal is whether the District Court erred in declining to accept jurisdiction of this case. Kenneth argues that the Montana District Court has jurisdiction to hear this case and that the "open court policy" set forth in the 1972 Montana Constitution, Art. 11,

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Montana Law