                                    OPCNAL                                                    08/11/2020


           IN THE SUPREME COURT OF THE STATE OF MONTANA                                   Case Number: DA 20-0084


                                        DA 20-0084


MICHELLE S. RAVE,

             Petitioner and Appellee,

      v.                                                             ORDER

LANDON W. WILSON,
                                                                        FILED
             Respondent and Appellant.
                                                                        AUG 1 1 2020
                                                                      Bowen
                                                                              Greenwood
                                                                    Clerk of S'iprem
                                                                                     Co
       Representing himself, Landon Wilson appeals the Eleventh JaklarDistacArourt's
January 13, 2020 Permanent Order of Protection prohibiting all contact with his
four-year-old son. The District Court entered the Order following a hearing on the petition
of Michelle Rave,the child's mother, with whom Wilson had a previous relationship. Both
parties appeared at the hearing without counsel,Michelle in person and Landon by telephone
from Wisconsin. Following its consideration of their testimony, the District Court found
Michelle's testimony credible and agreed that she was entitled to an order of protection
preventing Landon from contacting her, their son, and Michelle's two older children. The
Order has no expiration date.
       Landon argues on appeal that there is clear error in the District Court's findings of
fact and alleges that the court lacked jurisdiction to enter the order without consideration of
the   Uniform    Child    Custody    Jurisdiction   and    Enforcement Act (UCCJEA),
§ 40-7-101, et seq.,MCA. Landon supports his arguments with a number ofdocuments that
he did not present to the District Court. Michelle has not appeared in the appeal on her own
behalf or through counsel and has filed no responsive brief.
       Among the documents included in the Appendix to Landon's Opening Brief is a
Temporary Order issued by the Monroe County, Wisconsin,Circuit Court on April 12,2019,
providing arrangements between Michelle and Landon for their child's parenting. The Order
gives Michelle primary placement and Landon weekly parenting time with his son. Michelle
petitioned the Montana court for an order of protection in November 2019, seven months
after the Wisconsin court entered the parenting order.             Landon argues that the
District Court's Order ofProtection failed to include, as required by § 40-15-204(6), MCA,
"a section that indicates whether there are any other civil or criminal actions pending
involving the parties, a brief description of the action, and the court in which the action is
filed." He contends further that the District Court violated § 40-7-204, MCA, part of
Montana's adoption of the UCCJEA, by entering a permanent order of protection without
recognizing the "temporary emergency jurisdictioe lirnitation that section provides when
another state's court is exercising jurisdiction over the child's custody and visitation.
See In re Marriage ofKirkman, 2020 MT 17,IN 18-20, 398 Mont. 389,456 P.3d 1028.
       This Court's appellate review is confined to the record presented in the trial court.
See M.R.App.P. 8(1), 12(1)(d). We ordinarily do not consider facts and materials that the
parties did not give the district court an opportunity to consider. Landon points out that he
mentioned during the hearing that "we have a temporary order in place (although he
referred mistakenly to "Mineral County"). He did not, however, provide any details or offer
evidence ofthe Wisconsin court proceedings. Nonetheless, we may take judicial notice of
the Wisconsin court's order pursuant to M.R. Evid. 202(4).
       Upon consideration of Landon's appellate brief and appendix, we conclude that it
presents a potential jurisdictional issue. Both Montana and Wisconsin have adopted the
UCCJEA. Tit. 40, ch. 7, MCA; Wis. Stat. ch. 822. "Except as otherwise provider by
§ 40-7-204, MCA,Montana's version ofthe UCCJEA provides that the court ofanother state
that made an initial "child custody determinatioe for a child retains "exclusive, continuing
jurisdiction over the child until that court determines either that:
      (1)"neither the child, the child and one parent, nor the child and a person
      acting as a parent have a significant connection with [that state] and that
      substantial evidence is no longer available in [that state] concerning the child's
      care, protection, training, and personal relationship?; or
      (2)that state "is an inconvenient forum."
In re Marriage ofKirkman,¶ 19(quoting § 40-7-202(1)(a),(2), MCA). We recognized in
Kirkman that "a Montana court of otherwise competent jurisdiction 'has temporary
emergency jurisdiction' to 'protect' a child 'present in' Montana as 'necessary in an
emergency' where 'the child, or a sibling or parent ofthe child, is subjected to or threatened
with mistreatment or abuse.'"In re Marriage ofKirkman,¶ 20(quoting §§ 40-7-202(1)(a),
-203(1), and -204(1), MCA). That emergency protection does not, however, authorize the
District Court to modify another court's parenting plan.              See §§ 40-7-203(1),
-204(3),(4), MCA; Kirkman, ¶ 21. We conclude that the District Court must have the
opportunity to reconsider its order of protection in light of the Wisconsin proceeding and
under the governing provisions ofthe UCCJEA.
      IT IS THEREFORE ORDERED that this matter is REMANDED to the District Court
for consideration ofthe Wisconsin child custody proceedings and, if applicable, resolution
under the UCCJEA.
      IT IS FURTHER ORDERED that the January 13, 2020 Order of Protection shall
remain in place as a temporary order pending the District Court's further consideration.
       There being no other issues to consider,
      IT IS FURTHER ORDERED that the appeal is DISMISSED without prejudice.
       The Clerk is directed to provide a copy ofthis Order to all parties, to the Clerk ofthe
Eleventh Judicial District Court, and to the Hon. Dan Wilson, presiding Judge in
Flathead County Cause No. 19-907.
      DATED this     n —day ofAugust,2020.




                                              3
4
