                                                                                       December 20 2011


                                          DA 11-0323

                     IN THE SUPREME COURT OF THE STATE OF MONTANA

                                          2011 MT 316



PATRICIA MARIE ALBRECHT,

              Petitioner and Appellee,

         v.

KEITH VINCENT ALBRECHT,

              Respondent and Appellant.



APPEAL FROM:           District Court of the Eighteenth Judicial District,
                       In and For the County of Gallatin, Cause Nos. DR-99-420 and DR-99-425
                       Honorable Holly Brown, Presiding Judge


COUNSEL OF RECORD:

                For Appellant:

                       Margot E. Barg, Wittich Law Firm, P.C., Bozeman, Montana

                For Appellee:

                       Kirsten Mull Core, Attorney at Law, Bozeman, Montana



                                                  Submitted on Briefs: November 16, 2011

                                                             Decided: December 20, 2011


Filed:

                       __________________________________________
                                         Clerk
Justice Patricia O. Cotter delivered the Opinion of the Court.

¶1     Keith Albrecht (Keith) appeals from the Order of the District Court of the

Eighteenth Judicial District of Gallatin County, Montana, denying his motion to dissolve

a Final Order of Protection (FOP) which had previously been granted to his ex-wife

Patricia Albrecht (Patricia). The District Court left the FOP in effect, reasoning that

under § 40-15-204(5), MCA, it did not have any legal authority to terminate the FOP

without Patricia’s request for termination. Keith argues that § 40-15-204(5), MCA,

grants a district court legal authority to terminate an order of protection, with or without

the request of the petitioner.

¶2     We reverse and remand for further proceedings.

                                          ISSUE

¶3     Did the District Court err in concluding that an order of protection may only be

terminated by a district court upon the request of the petitioner?

                  FACTUAL AND PROCEDURAL BACKGROUND

¶4     Patricia and Keith were married for nearly seventeen years when Patricia

petitioned for dissolution of the marriage in December 1999. A temporary order of

protection was issued against Keith to protect Patricia and the couple’s three children.

On January 6, 2000, the District Court issued a FOP, which was later modified on May

20, 2003. The FOP required that Keith stay 300 feet away from Patricia at all times and

that he have only telephonic and supervised in-person contact with the children. The

FOP concluded by stating that “THIS ORDER MAY BE AMENDED ONLY BY

FURTHER ORDER OF THIS COURT OR ANOTHER COURT THAT ASSUMES


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JURISDICTION OVER THIS MATTER,” as required by § 40-15-204(9), MCA. The

cases for the dissolution of marriage and the order of protection were consolidated in

March 2000, and the marriage was dissolved on August 29, 2001.

¶5     In the early years, Keith violated the temporary order of protection on multiple

occasions and the FOP at least once, though Patricia alleged a number of additional

violations. Keith has also, on occasion, failed to make some of the ordered monthly child

support payments to Patricia and required payments of attorney fees and costs. As a

consequence, he was held in contempt in March 2004, August 2004, and August 2006.

¶6     Keith moved the District Court to dissolve the FOP on September 1, 2010, arguing

that he was no longer a threat to Patricia and that it was too restrictive on his life. He

stated he had remarried, attended anger management and parenting classes, saw a

psychologist, moved on with his life, and had “absolutely no desire or intent to harass,

threaten, or injure Patricia in any way.” He also wished to attend the Spanish-speaking

church services at the Kingdom Hall of Jehovah’s Witnesses in Bozeman where Patricia

regularly attends, which was prohibited by the FOP. Patricia opposed Keith’s motion.

She sought to keep the FOP in effect in order to be assured of her safety, as she believed

that the only reason she was still alive was because the FOP was in place. She argued

that Keith was likely to continue to harass, threaten, and injure her without the FOP, as he

had done in the past.

¶7     The District Court granted Keith’s motion for reconsideration so as to consider his

reply brief and denied his motion to dissolve the FOP. The court noted that Patricia had

“not requested the permanent order be terminated” and that Keith did not provide “any


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legal authority to terminate the permanent Order of Protection upon his motion in light of

strictures contained in § 40-15-204(5), MCA.”

¶8     Keith appeals.

                               STANDARD OF REVIEW

¶9     We review a district court’s conclusions of law for correctness. Jordan v. Kalin,

2011 MT 142, ¶ 19, 361 Mont. 50, 256 P.3d 909; Kulstad v. Maniaci, 2010 MT 248,

¶ 24, 358 Mont. 230, 244 P.3d 722; Cenex Pipeline L.L.C. v. Fly Creek Angus, Inc., 1998

MT 334, ¶ 22, 292 Mont. 300, 971 P.2d 781.

                                        DISCUSSION

¶10    Did the District Court err in concluding that an order of protection may only be
       terminated by a district court upon the request of the petitioner?

¶11    Keith argues on appeal that the District Court incorrectly determined that it did not

have the authority to terminate the FOP under § 40-15-204(5), MCA, absent a request

from Patricia as the protected party. Keith asserts that the statute provides a district court

the legal authority to determine an appropriate length of time for orders of protection,

including the authority to terminate them, whether or not the protected party agrees.

Patricia does not dispute this, and in fact agrees that the District Court had the authority

to continue or terminate the order of protection. However, she argues that the court

utilized this authority and its discretion when it chose to keep the FOP in effect, and

therefore urges this Court to affirm.




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¶12    Section 40-15-204, MCA, allows a district court to issue a temporary or permanent

order of protection, and subsection (5) addresses the termination of an order of

protection. The statute provides:

       (1) The court may, on the basis of the respondent’s history of violence, the
       severity of the offense at issue, and the evidence presented at the hearing,
       determine that to avoid further injury or harm, the petitioner needs
       permanent protection. The court may order that the order of protection
       remain in effect permanently.
              (2) In a dissolution proceeding, the district court may, upon request,
       issue either an order of protection for an appropriate period of time or a
       permanent order of protection.
                                              . . .
              (5) An order of protection issued under this section may continue for
       an appropriate time period as directed by the court or be made permanent
       under subsection (1), (2), or (4). The order may be terminated upon the
       petitioner’s request that the order be dismissed.
                                              . . .
              (9) Any temporary order of protection or order of protection must
       conspicuously bear the following:
              “ . . . This order is issued by the court, and the respondent is
       forbidden to do any act listed in the order, even if invited by the petitioner
       or another person. This order may be amended only by further order of this
       court or another court that assumes jurisdiction over this matter.”

Section 40-15-204(1), (2), (5), (9), MCA (emphasis added). We also note the purpose of

this chapter, which is “to promote the safety and protection of all victims of partner and

family member assault, victims of sexual assault, and victims of stalking.” Section

40-15-101, MCA.

¶13    The above statutory language indicating an order of protection “may continue for

an appropriate time period as directed by the court” implies that a district court not only

has the authority to continue the order of protection if it finds it necessary to do so, but

also the authority to discontinue the order of protection if the court so decides. Section



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40-15-204(5), MCA (emphasis added). There is nothing in the statute precluding a

district court from exercising this authority.

¶14    We further note that the FOP, entered on January 6, 2000, states that it “MAY BE

AMENDED ONLY BY FURTHER ORDER OF THIS COURT OR ANOTHER

COURT THAT ASSUMES JURISDICTION OVER THIS MATTER.” Similarly, the

FOP states that “[t]he Order of Protection as to Respondent’s contact with the Petitioner

should continue permanently until further order of the court.”        (Emphasis added.)

Another paragraph states that “[u]ntil further order of this Court, Respondent must not

telephone, contact or otherwise communicate, directly or indirectly with Petitioner other

than through her attorney.” (Emphasis added.)

¶15    Keith argues that the District Court incorrectly concluded that unless Patricia

moved to dismiss or terminate the order of protection, the court was without the legal

authority to do so. It indeed appears the District Court reached this conclusion. The

court noted that Patricia had not requested that the FOP be terminated and in fact

objected to its termination. Citing the last sentence of § 40-15-204(5), MCA, which

provides that “[t]he order may be terminated upon the petitioner’s request that the order

be dismissed,” the court concluded that Keith “does not provide the Court with any legal

authority to terminate the permanent Order of Protection upon his motion in light of

strictures contained in § 40-15-204(5), MCA,” and therefore denied his motion to

dissolve the FOP. We conclude this was error. While certainly a court may grant a

petitioner’s request to dismiss an order of protection, nowhere does the statute or this




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FOP provide that the court may dissolve or dismiss the FOP only upon the request of

petitioner.

¶16    A district court has the power to “issue, hear and determine writs,” including

original and remedial writs, and to “hear and determine any matter necessary in the

exercise of the judge’s powers . . . in any action or proceeding provided by law.” Section

3-5-311(1)(a)-(c), MCA. A court’s authority to act is not constrained by the wishes of

one party.

¶17    Patricia argues that the District Court had “the authority to continue or dissolve the

order of protection,” utilized this authority when it left the FOP in effect, and this Court

should review the determination for an abuse of discretion. See Keller v. Trull, 2007 MT

108, ¶ 7, 337 Mont. 188, 158 P.3d 439; Bock v. Smith, 2005 MT 40, ¶ 29, 326 Mont. 123,

107 P.3d 488. We agree with Patricia that had the court reviewed Keith’s petition on the

merits, we would not disturb its conclusion absent an abuse of discretion. However, it is

apparent from the court’s order that it did not reach the merits of Keith’s petition, having

decided it had no power to act without Patricia’s consent.

¶18    We conclude that the District Court misinterpreted the law as set forth in

§ 40-15-204(5), MCA. A district court has the authority to continue or terminate an order

of protection, notwithstanding the petitioner’s desires. We therefore reverse and remand

for the District Court to hold a hearing and decide Keith’s motion to terminate the FOP

on the merits.

                                     CONCLUSION




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¶19   For the foregoing reasons, we reverse and remand for further proceedings

consistent with this Opinion.


                                         /S/ PATRICIA COTTER



We concur:

/S/ JAMES C. NELSON
/S/ BETH BAKER
/S/ BRIAN MORRIS
/S/ JIM RICE




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