                                                                                             May 15 2013


                                           DA 12-0328

                  IN THE SUPREME COURT OF THE STATE OF MONTANA

                                          2013 MT 127NA



MARY C. SAMPSON,

              Petitioner and Appellee,

         v.

KENNY G. SAMPSON,

              Respondent and Appellant.



APPEAL FROM:           District Court of the Fourth Judicial District,
                       In and For the County of Missoula, Cause No. DR 11-843
                       Honorable Edward McLean, Presiding Judge


COUNSEL OF RECORD:

                For Appellant:

                       Raymond P. Tipp; Torrance L. Coburn; Tipp and Buley, P.C. Missoula,
                       Montana

                For Appellee:

                       Klaus D. Sitte; ASUM Legal Services; Missoula, Montana



                                                    Submitted on Briefs: April 10, 2013
                                                               Decided: May 7, 2013
                                                             Amended: May 15, 2013




Filed:

                       __________________________________________
                                         Clerk
Justice Beth Baker delivered the Opinion of the Court.

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

Rules, this case is decided by memorandum opinion and shall not be cited and does not

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

Court and its case title, Supreme Court cause number, and disposition shall be included in

this Court’s quarterly list of noncitable cases published in the Pacific Reporter and

Montana Reports.

¶2    The Missoula Municipal Court entered an order prohibiting Kenny G. Sampson

from threatening or committing acts of violence against, harassing, annoying or

disturbing the peace of, contacting or attempting to contact, or being within 500 feet of

his former wife Mary C. Sampson. Kenny appealed to the Fourth Judicial District Court,

which affirmed the Municipal Court’s order. Kenny now appeals the District Court’s

decision, and we affirm.

¶3    The issue on appeal is whether the claims in Mary’s petition to the Missoula

Municipal Court were barred by the doctrine of res judicata and a lack of sufficient

evidence that Mary was in danger of harm absent the order of protection.

¶4    The parties divorced in 1995, after a 20-year marriage. In the Final Decree of

Dissolution, the Ravalli County District Court found that Mary was “in need of a

permanent restraining order except for the purposes of carrying out the provisions of the

Marital Settlement Agreement,” and the Decree made permanent the Temporary

Restraining Order she had obtained earlier in the proceedings.


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¶5     In October of 2011, Kenny asked the Ravalli County District Court to modify the

decree of dissolution by removing the above-referenced order of protection. Mary did

not appear to respond, and the court granted Kenny’s motion to remove the order of

protection.

¶6     Three days later, Mary filed for an order of protection in Missoula County, where

she then lived. The Missoula Municipal Court granted a temporary order of protection

and, in November of 2011, held a hearing on whether it should continue, amend, or make

the order of protection permanent. Both Mary and Kenny testified at the hearing, as did

one of their adult daughters. Following the hearing, the court continued the order of

protection.

¶7     Kenny now appeals to this Court. As he did in the Municipal Court and on appeal

to the District Court, he argues that Mary’s claims before the Municipal Court are barred

by the doctrine of res judicata, because they already have been adjudicated in Ravalli

County. Kenny also argues that Mary failed to establish that she was in danger of harm if

the order of protection was not issued.

¶8     Our standard of review is whether the Municipal Court abused its discretion in

continuing the order of protection. See Edelen v. Bonamarte, 2007 MT 138, ¶ 6, 337

Mont. 407, 162 P.3d 847.

¶9     Under § 40-15-301, MCA, Montana courts have concurrent jurisdiction to enter

orders of protection. Therefore, a protected individual is not precluded from pursuing

cumulative remedies in multiple courts. The Municipal Court and the District Court were

correct that res judicata did not bar Mary’s request for a protective order from the
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Municipal Court.

¶10    In their testimony before the Municipal Court, Mary and her daughter both

described a brutal history of domestic abuse by Kenny during the parties’ marriage. In

addition, Mary testified about two recent events that caused her to fear for her safety from

Kenny. The court stated it credited the recently-removed Ravalli County protective order

for the relative lack of problems in the preceding 16 years. The court found that there is

an uncontroverted history of violence in the relationship; that Mary’s fear of harm is real

and palpable; and that without an order of protection she would reasonably be in danger.

¶11    We have determined to decide this case pursuant to Section I, Paragraph 3(d) of

our Internal Operating Rules, which provides for noncitable memorandum opinions. The

District Court correctly applied Montana law and did not abuse its discretion in affirming

the Municipal Court’s grant of a continuing order of protection.

¶12    The District Court’s order is affirmed.


                                                 /S/ BETH BAKER

We concur:

/S/ PATRICIA COTTER
/S/ BRIAN MORRIS
/S/ LAURIE McKINNON
/S/ JIM RICE




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