                                                                                        December 19 2007


                                           DA 06-0831

                IN THE SUPREME COURT OF THE STATE OF MONTANA
                                          2007 MT 356N



WENDY F. SCHOONEN,

              Petitioner and Appellee,

         v.

RYAN E. REICHLE,

              Respondent and Appellant.



APPEAL FROM:           District Court of the Second Judicial District,
                       In and For the County of Butte/Silver Bow, Cause No. DR 02-11,
                       Honorable Kurt Krueger, Presiding Judge


COUNSEL OF RECORD:

                For Appellant:

                       Quentin M. Rhoades, Sullivan, Tabaracci & Rhoades, P.C.,
                       Missoula, Montana

                For Appellee:

                       Brad L. Belke, Attorney at Law, Butte, Montana



                                                   Submitted on Briefs: October 10, 2007

                                                              Decided: December 19, 2007


Filed:

                       __________________________________________
                                         Clerk
Justice Jim Rice delivered the Opinion of the Court.

¶1     Pursuant to Section I, Paragraph 3(d)(v), Montana Supreme Court 1996 Internal

Operating Rules, as amended in 2003, the following memorandum decision shall not be

cited as precedent. It shall be filed as a public document with the Clerk of the Supreme

Court and shall be reported by case title, Supreme Court cause number and result to the

State Reporter Publishing Company and West Group in the quarterly table of noncitable

cases issued by this Court.

¶2     Appellant Ryan Reichle (Reichle) appeals from the order of the Second Judicial

District Court, Silver Bow County, denying his motion to dismiss the order of protection

issued by the Silver Bow County Justice Court. We affirm.

¶3     The parties herein are the parents of one minor child, a son born August 22, 1996.

Appellee Wendy Schoonen (Schoonen) filed a petition for issuance of a parenting plan

with the Fifth Judicial District Court, Beaverhead County, on October 13, 1999. On

April 19, 2000, the Beaverhead County District Court issued a final parenting plan.

¶4     On December 24, 2001, Schoonen filed a petition with the Silver Bow County

Justice Court for a temporary protective order against Reichle. The Justice Court granted

the temporary protective order (the First Order) the same day and set a show cause

hearing for January 10, 2002. However, on January 8, 2002, the court’s minute entry

indicates that Schoonen’s counsel appeared “in court and state[d] that the [order of

protection] will be [sic] continue in full force.” The minute entry also states: “Hearing

will be vacated.” The Justice Court subsequently vacated the hearing and issued an order

of protection (the Second Order) on January 11, 2002. On January 18, 2002, the parties


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filed a stipulation with the Justice Court stating that the Second Order would continue to

apply to Reichle “as originally ordered by the Court except that [Reichle] should not be

restricted from exercising his Court ordered visitation with the parties’ minor child . . . .”

The Justice Court issued an amended permanent order of protection in accordance with

the stipulation (the Third Order) on January 24, 2002.

¶5     Prior to the Justice Court’s issuance of the Third Order, the parties stipulated to

changing the venue of the parenting plan proceeding originally filed in the Beaverhead

County District Court and on January 17, 2002, the parenting plan proceeding was

transferred to the Second Judicial District Court, Silver Bow County. The Silver Bow

County District Court thereafter issued an amended parenting plan on June 19, 2002.

This parenting plan did not incorporate or reference any of the three protective orders

issued by the Justice Court.

¶6     On July 12, 2006, the Justice Court granted a motion filed by Reichle to transfer

jurisdiction of the Third Order from the Justice Court to the Silver Bow County District

Court. On July 17, 2006, Reichle moved for a settlement conference and an order

dismissing the Third Order. On November 1, 2006, the court denied Reichle’s motion to

dismiss, concluding that the motion was time barred by M. R. Civ. P. 60(b). Reichle

appeals.

¶7     Whether a court has subject matter jurisdiction is a question of law and our review

is plenary. State v. Finley, 2003 MT 239, ¶ 10, 317 Mont. 268, ¶ 10, 77 P.3d 193, ¶ 10.

Temporary protective orders are a specialized form of injunctions. K.D.R.-M v. R.E.M.,

2004 MT 292, ¶ 18, 323 Mont. 340, ¶ 18, 100 P.3d 150, ¶ 18. We review a court’s grant


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or denial of injunctive relief to determine whether there was a manifest abuse of

discretion. K.D.R.-M., ¶ 15. “A ‘manifest’ abuse of discretion is one that is obvious,

evident, or unmistakable.” K.D.R.-M., ¶ 15. We review a district court’s denial of a

M. R. Civ. P. 60(b) motion for abuse of discretion. In re Marriage of Markegard, 2006

MT 111, ¶ 11, 332 Mont. 187, ¶ 11, 136 P.3d 532, ¶ 11.

¶8     Reichle asserts that all three orders issued by the Justice Court are void because

the Justice Court lacked subject matter jurisdiction to issue the First Order. Reichle

argues that because there was a pending parenting plan in the Beaverhead County District

Court at the time Schoonen filed her petition for a temporary protective order, pursuant to

§ 40-15-301, MCA, Schoonen was required to file the petition with the Beaverhead

County District Court. Reichle contends that, under the statute, unless the Beaverhead

County District Court judge was unavailable or Schoonen was fleeing further abuse, the

Justice Court did not have jurisdiction to issue the First Order.

¶9     However, Reichle inappropriately posits the issue as one of jurisdiction. Justice

courts have inherent subject matter jurisdiction to enter orders of protection. Section 40-

15-301(2), MCA states:

       When a dissolution of marriage or parenting action involving the parties is
       pending in district court, a person may file a petition for an order of
       protection in a justice’s municipal or city court only if the district court
       judge assigned to that case is unavailable or if the petitioner, to escape
       further abuse, left the county where the abuse occurred. [Emphasis added].

Accordingly, § 40-15-301(2), MCA, does not restrict the subject matter jurisdiction of the

Justice Court but instead restricts a person or party from filing a petition for an order of

protection when certain circumstances exist. Consequently, the opposing party must


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timely challenge the circumstances surrounding the filing of the petition, i.e. whether the

district court judge is available or the petitioner is fleeing abuse. Here, Reichle did not

challenge the filing of the petition in the Justice Court at the time Schoonen filed the

petition. Neither did Reichle challenge the protective order when the parenting plan was

transferred to the Silver Bow County District Court in January, 2002, or when the Silver

Bow County District Court issued an amended parenting plan in June, 2002. Rather,

Reichle waited nearly five years before challenging the issuance of the protective order.

Moreover, shortly after the order was initially issued, Reichle stipulated that the order

would continue and further waived the show cause hearing. Given these circumstances,

Reichle has waived his opportunity to challenge the statutory basis for the filing of the

petition by Schoonen which resulted in the Justice Court’s issuance of the First Order.

¶10    In the alternative, Reichle asserts that the Second and Third Orders issued by the

Justice Court are void because a hearing was not held, as required by § 40-15-202, MCA.

While § 40-15-202, MCA, requires the issuing court to conduct a hearing within twenty

days of the issuance in order to “determine whether good cause exists for the . . . order

. . . to be continued, amended, or made permanent[,]” the parties may waive the hearing

requirement. A waiver may be effectuated by stipulation. A stipulation effectively

relieves the parties from the necessity of introducing evidence about the ultimate fact

covered by the stipulation. Fiedler v. Fiedler, 266 Mont. 133, 142, 879 P.2d 675, 681

(1994). When the stipulation is material, both the parties and the court are bound by it.

Fiedler, 266 Mont. at 142, 879 P.2d at 681.




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¶11    Here, the parties submitted a stipulation whereby they agreed that the Second

Order would continue as issued by the court so long as it was amended to allow Reichle

to exercise his court ordered visitation rights. Thereafter, the Justice Court entered its

Third Order of protection, which incorporated the stipulation and amended the Second

Order. Reichle effectively waived his right to a show cause hearing and cannot now

complain that the Justice Court’s order is void for failing to comply with § 40-15-202,

MCA.

¶12    Reichle’s final argument is that the Silver Bow County District Court erred by

finding that his motion to dismiss the Justice Court’s Third Order was time barred by

M. R. Civ. P. 60(b). As previously explained, Reichle failed to challenge the

circumstances surrounding Schoonen’s filing of her petition for an order of protection

and further stipulated to the order’s continuance. The stipulation and Reichle’s five-year

delay in transferring the order of protection to the Silver Bow County District Court and

moving for its dismissal convinces us, regardless of the application of M. R. Civ. P.

60(b), that Reichle waived his right to challenge the basis for issuance of the First Order.

Accordingly, the court did not err by refusing to consider Reichle’s motion to dismiss.

However, because district courts have continuing jurisdiction over matters of parenting,

Reichle may still petition the District Court for termination or modification of the order,

for purposes of its future effect.

¶13    It is appropriate to decide this case pursuant to our Order of February 11, 2003,

amending Section I.3 of our 1996 Internal Operating Rules and providing for

memorandum opinions. It is manifest on the face of the briefs and the record before us


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that the appeal is without merit because the findings of fact are supported by substantial

evidence, the legal issues are clearly controlled by settled Montana law which the District

Court correctly interpreted, and there was clearly no abuse of discretion by the District

Court.

¶14      We affirm the judgment of the District Court.



                                                  /S/ JIM RICE



We concur:

/S/ PATRICIA COTTER
/S/ W. WILLIAM LEAPHART
/S/ JAMES C. NELSON
/S/ JOHN WARNER




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