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                                                                  No. 99-247



                               IN THE SUPREME COURT OF THE STATE OF MONTANA



                                                                1999 MT 189

                                                               295 Mont. 352

                                                                983 P.2d 966




IN RE THE MARRIAGE OF

DANA C. CHRISTIAN,



Petitioner and Appellant,



and




NANCY MUELLER

f/k/a NANCY CHRISTIAN,



Respondent and Respondent.




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APPEAL FROM: District Court of the Sixth Judicial District,

In and for the County of Park,

The Honorable Wm. Nels Swandal, Judge presiding.




COUNSEL OF RECORD:



For Appellant:



Dana C. Christian, Attorney at Law, Livingston, Montana



For Respondent:



Karl Knuchel, Attorney at Law, Livingston, Montana




                                                                                                       Submitted on Briefs: July 8, 1999



                                                                                                                 Decided: August 10, 1999



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Filed:




__________________________________________

Clerk




Justice James C. Nelson delivered the Opinion of the Court.




¶1. Dana C. Christian (Dana) appeals from the Sixth Judicial District Court, Park
County restraining order dated January 21, 1999, and from the February 4, 1999
order denying his motion for amendment. We reverse and vacate the court's January
21, 1999 order and remand this case to the District Court for further proceedings on
Dana's motion.

                                                              Background

¶2. The parties' marriage was dissolved in California in 1987. On December 30, 1998,
Dana, a licensed attorney appearing pro se, filed a "Motion to Modify Child Custody
and Related Issues" along with a supporting brief and affidavit. Among other things,
Dana's motion requested a restraining order against his former wife, Nancy Mueller
f/n/a Nancy Christian (Nancy). Dana's motion arose out of an ongoing dispute
between the parties concerning custody and visitation of the parties' minor child. The
alleged facts surrounding the incidents precipitating Dana's motion are not material
to our disposition of the legal question at issue. Nancy, by counsel, filed her response,
brief and affidavit on January 12, 1999. She objected to Dana's motion on both
procedural and substantive grounds. Nancy did not request a restraining order
against Dana, however. Dana filed his reply affidavit on January 20, 1999.


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¶3. On January 21, 1999, without notice or hearing, the District Court entered an
order requiring each party to stay 1500 feet away from the other party's residence
and place of work. This order also designated where the parties would transfer
custody of the child for visitation purposes and established a telephone contact
protocol and visitation schedule. The court directed that its order "remain in effect
until further order of the Court."

¶4. On the same date that the court issued this order, Dana filed his "Motion for
Amendment-Clarification" objecting to the court's mutual restraining orders. Dana
                                                        (1)
argued that § 40-15-202(3), MCA , precluded issuance of a restraining order
against him where only he had requested that relief against Nancy. This section of
the code pertains to the issuance of orders of protection and is located in that chapter
of the code dealing with partner and family member assault; sexual assault; and
stalking; and the safety and protection of victims. See Title 40, chapter 15, Montana
Code Annotated. On February 4, 1999, the District Court denied Dana's motion
stating that it had not issued the restraining order under the authority of § 40-15-202
(3), MCA, but rather, had issued its order under § 40-4-121, MCA. This appeal
followed.

                                                                     Issue

¶5. Did the District Court err in issuing a mutual restraining order under § 40-4-121,
MCA, for an indefinite period of time and without notice and hearing?




                                                                Discussion

¶6. Typically, we review a trial court's grant of injunctive relief for "manifest abuse
of discretion." Van Loan v. Van Loan (1995), 271 Mont. 176, 178-79, 895 P.2d 614,
615 (citation omitted). However, where, as here, the court grounds its decision to
issue such relief upon its interpretation of a particular statute, we review de novo the
court's legal conclusion as to its jurisdiction--i.e., simply to determine whether the
court's interpretation of the law is correct. See State v. Asmundson (1997), 283 Mont.
141, 145-46, 940 P.2d 104, 106-07.



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¶7. Section 40-4-121(2)(c), MCA, allows either party, by independent motion
supported by affidavit, to request the court to issue a temporary injunction enjoining
a party from molesting or disturbing the peace of the other party or of any family
member. Subsection (2)(d) permits the court to exclude a party from the family home
or from the home of the other party upon showing that physical or emotional harm
would otherwise result. The trial court referenced both of these subsections in its
February 4, 1999 order as the authority for its issuance of its January 21, 1999 order.

¶8. Section 40-4-121(4), MCA, however, provides in pertinent part, that "[a]ny
temporary injunction entered under this subsection [2] must be for a fixed period of
time, not to exceed 1 year . . . ." Furthermore, § 40-4-121, MCA, requires in pertinent
part that

(5) The court may issue a temporary restraining order for a period not to exceed 20 days
without requiring notice to the other party only if it finds on the basis of the moving
affidavit or other evidence that irreparable injury will result to the moving party if an order
is not issued until the time for responding has elapsed.

(6) A response may be filed within 20 days after service of notice of motion or at the time
specified in the temporary restraining order.

(7) At the time of the hearing, the court shall determine whether good cause exists for the
injunction to continue for 1 year.



¶9. In the case at bar, the District Court's January 21, 1999 restraining order fails
the requirements of subsections (2), (4), (5), (6) and (7) of § 40-4-121, MCA. First, the
court's order was not entered for "a fixed period of time, not to exceed 1 year."
Rather, the court directed that its order was to "remain in effect until further order
of the Court." This frame of reference is neither for a "fixed period" nor does it
preclude the order from exceeding the 1-year statutory time limit. Thus, § 40-4-121
(4), MCA, is violated.

¶10. Second, the court's January 21, 1999 order was issued as against Dana without
request from Nancy (contrary to § 40-4-121(2), MCA) and also without notice to
either party, proper findings, or a hearing. Section 40-4-121(5), MCA, read together
with § 40-4-121(6) and (7), MCA, unambiguously requires notice and hearing before

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a restraining order under § 40-4-121(2), MCA, is issued. Asmundson, 283 Mont. at
145-46, 940 P.2d at 106-07. If, as it was here, the restraining order is issued without
notice, subsection (5) limits the duration of the order to 20 days, and this subsection
also requires the court to make certain prescribed findings. These statutory findings
are not included in either the court's January 21, 1999, or February 4, 1999, orders.
Moreover, the court's January 21, 1999 order was issued without a hearing.

¶11. Nancy argues that because § 40-4-121(3), MCA, directs the clerk of the district
court to issue a restraining order without notice or hearing, the District Court doing
the same thing was, thus, proper. Nancy's argument is without merit. Section 40-4-
121(3), MCA, directs the clerk of the district court to issue a temporary restraining
order in conjunction with the issuance of a summons pursuant to Title 40, chapter 4,
Montana Code Annotated. No summons was issued in this case. Rather, Dana
applied for a restraining order by independent motion accompanied by affidavit
under § 40-4-121(2), MCA. Moreover, the temporary restraining order issued by the
clerk under § 40-4-121(3), MCA, is limited statutorily to matters involving property.
See § 40-4-121(3)(a) and (b), MCA. Section 40-4-121(3), MCA, is clearly inapplicable
in the case sub judice.

¶12. When interpreting a statute, we look first to the plain meaning of its words.
When the statute is plain, unambiguous, direct and certain, the statute speaks for
itself and there is no need to resort to extrinsic means of interpretation. Asmundson,
283 Mont. at 146, 940 P.2d at 107 (citing State v. Gould (1995), 273 Mont. 207, 219,
902 P.2d 532, 540). Based upon our plain reading of the unambiguous requirements
of § 40-4-121(2), (4), (5), (6) and (7), MCA, the District Court's January 21, 1999
restraining order failed to comply with these subsections and was, accordingly,
improperly issued as a matter of law. See Asmundson, 283 Mont. at 146, 940 P.2d at
107.

¶13. While we gather from Dana's brief that he believes the restraining order against
Nancy should remain in effect, it is invalid as against her as well for the reasons set
forth above. Moreover, while the court's January 21, 1999 order covers matters
arguably not involving keeping the parties away from each other's homes and
businesses, it appears from our reading of the court's order that these latter matters
were part and parcel of the injunctive relief granted by the court. Accordingly, it is
appropriate that the court revisit all of these matters on remand after proper notice
is given to the parties and after a hearing.

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¶14. The court's issuance of its January 21, 1999 mutual restraining order is reversed
and the order is vacated. We remand this case to the District Court for further
proceedings on Dana's motion.



/S/ JAMES C. NELSON




We concur:



/S/ WILLIAM E. HUNT, SR.

/S/ W. WILLIAM LEAPHART

/S/ TERRY N. TRIEWEILER

/S/ JIM REGNIER

1. 1 All statutory references are to the 1997 version of the Montana Code Annotated since the matters at issue
occurred from and after December 1998.




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