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Rolph v. Montana Sixteenth Judicial District Court

Supreme Court of Montana

July 17, 2013



Jenny Elizabeth Rolph (Jenny) has filed a petition for a writ of supervisory control requesting that the District Court's Temporary Ex Parte Order and Order to Show Cause, entered on April 30, 2013, be either stayed or vacated. The District Court's ex parte order was entered in the dissolution proceeding of In re the Marriage of Martin M. Rolph and Jenny E. Rolph, Cause No. DR 2013-13, Carter County, and granted temporary physical custody of the parties' minor child, PTR, who is now five months old, to Martin M. Rolph (Martin), husband of Jenny and PTR's father, pursuant to an Interim Parenting Plan proposed by Martin. The order also required Jenny to surrender PTR to Martin within three days of service of the court's order upon her. The order set a hearing for May 7, 2013, for Jenny "to show cause, if any, why [Martin's] Proposed Interim Parenting Plan should not remain in full force and effect."

Jenny has not yet been served with the ex parte order. She asserts in her petition to this Court that Martin ordered her to vacate the family home and that she later fled the home in fear following a physical and verbal confrontation with Martin, Martin's mother, and Martin's sister. She states that she thereafter flew to Florida with PTR to stay with her mother and made numerous attempts to contact Martin, expressing a desire for reconciliation. She did not appear at the show cause hearing on May 7, 2013. Martin appeared and testified. Jenny returned to Montana with PTR on May 14, retained counsel, and filed a motion to quash the order. The District Court denied the motion on June 11, 2013.

Jenny argues that her due process rights were violated because the ex parte order was sought by Martin and issued without the certification required by Rule 3, U.D.C.R., "declaring that the opposing party [Jenny] has been contacted and given reasonable notice" of the requested relief and the time of the ex parte conference. She argues that Martin was well aware of her location and phone number, yet failed to so advise the court or provide her with any information about the ex parte request. She asserts that "[a]n infant cannot be torn from its mother's breast without due process, " and that the ordered cessation of breastfeeding will likely cause irreparable damage to the child.

In its order denying Jenny's motion to quash, the District Court rejected these arguments because, beyond Rule 3, U.D.C.R., temporary ex parte orders are authorized without notice by § 40-4-220(2), MCA, for the purpose of protecting the well-being of children.

We conclude an appropriate basis for supervisory relief has not been established. Jenny is challenging an order with which she has not been served, issued by a court before which she had not appeared, even though she has apparently been residing in the state for the past two months. The District Court is well capable of considering evidence that Jenny was assaulted and fled with PTR out of fear, and that PTR's care requires the continuation of breastfeeding. However, it cannot do so until Jenny appears and presents such assertions in the form of evidence. Therefore,

IT IS HEREBY ORDERED that the Petition for Writ of Supervisory Control is DENIED and DISMISSED.

The Clerk is directed to provide a copy hereof to counsel of record and to the Hon. George W. Huss, District Court Judge.

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