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In re Marriage of Shirley

Supreme Court of Montana

August 27, 2013

In re the Marriage of: CHRISTINE R. SHIRLEY n/k/a/ CLARK, Petitioner and Appellee,
v.
JAMES S. SHIRLEY, Respondent and Appellant.

ORDER

Self-represented Appellant James S. Shirley (James) has filed various motions with this Court seeking relief from orders issued by Standing Master Magdalena Bowen in Eighteenth Judicial District Court proceedings. James also seeks leave to proceed without paying the filing fee.

Through counsel, Christine R. Shirley Clark (Christine) has filed a motion to dismiss the appeal and a request for an award of attorney fees. James has filed a response to the motion to dismiss.

This matter arises from controversy regarding the best interests of the parties' son, Z.R.S. James seeks an emergency stay of execution pending appeal relating to the following orders issued by the Standing Master:

• Order Denying Temporary Order of Protection
• Order Denying Respondent's Ex Parte Motion for Interim Child Care Plan
• Order Denying and Dismissing Respondent's Emergency Petition for Contempt for failure to follow the Parenting Plan
• Order Reinstating Counseling with Sally Jo Hand

In the Motion and Affidavit in Support of Stay, James confirms that his intention is to secure a stay with this Court should such relief not be timely granted by the District Court.

Christine's motion to dismiss is supported by a recent order from this Court, Beals v. Beals, 2013 MT 120, 370 Mont. 88, 300 P.3d 1158. We concluded therein that the means of obtaining review of a decision made by a standing master is to file specific objections to the standing master's decision within ten days after service of a notice of the filing of a standing master's findings, conclusions and order. Beals, ¶10. After a hearing, the district court "may adopt the findings, conclusions and order and may modify, reject in whole or in part, receive further evidence or recommit the findings and conclusions or order with instructions." Section 3-5-126(2), MCA. There is no right of direct appeal to this Court from a Standing Master's order.

Consequently, a precondition of James' perfection of this appeal is to first file specific objections to the Standing Master's findings, conclusions and final decree. Beals, ¶12. The District Court must conduct a hearing and take any of the actions described in § 3-5-126(2), MCA, as described above.

Christine's motion indicates that James failed to seek review of the Standing Master's orders issued on August 2, 2013. We secured a copy of the District Court Case Register to determine whether James has followed the correct procedure of filing objections and seeking District Court review. It is apparent he has not done so.

Consequently,

IT IS ORDERED that leave to proceed without paying the filing fee is GRANTED.

IT IS FURTHER ORDERED that this appeal is DISMISSED, without prejudice.

IT IS FURTHER ORDERED the request for the award of attorney's fees is DENIED.

The Clerk is directed to provide a copy of this Order to counsel of record. Standing Master Magdalena Bowen, and to James Storm Shirley.


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