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In re Marriage of Lockhead

Supreme Court of Montana

December 10, 2013

IN RE THE MARRIAGE OF: ADRIANA LOCKHEAD, Petitioner and Appellee,
v.
BRIAN LOCKHEAD, Respondent and Appellant.

Submitted on Briefs: October 16, 2013

APPEAL FROM: District Court of the Fourth Judicial District, In and For the County of Missoula, Cause No. DR 97-85066 Honorable John W. Larson, Presiding Judge

For Appellant: Gregory D. Birdsong, Birdsong Law Office PC; Missoula, Montana

For Appellee: Caroline Riss, Montana Legal Services Association; Helena, Montana

For Amicus Curiae: Hilly McGahan, DOVES Staff Attorney; Polson, Montana

Brandi R. Ries, Rubin and Ries Law Offices, PLLC; Missoula, Montana

OPINION

Laurie McKinnon, Justice

¶1 The District Court granted Adriana Lockhead a Temporary Order of Protection against Brian Lockhead on September 5, 1997, which it then made permanent pursuant to § 40-15-204, MCA, on April 21, 1999. On November 15, 2012, the District Court denied Brian's Motion to Vacate the Permanent Order of Protection. Brian appeals the District Court's decision. We affirm.

¶2 The dispositive issue on appeal is whether the District Court abused its discretion in denying Brian's Motion to Vacate the Permanent Order of Protection. Brian raises additional issues on appeal that we deem barred for reasons discussed below.

BACKGROUND

¶3 Adriana was born in Brazil, and moved to the United States with Brian before their marriage in 1991. The following year, their daughter Halen was born. Adriana filed for divorce on two separate occasions in 1995, but thereafter withdrew her petitions. On July 1, 1997, Adriana again filed for divorce.

¶4 On September 5, 1997, Adriana filed an Ex Parte Motion for a Temporary Order of Protection against Brian. In her accompanying affidavit, Adriana stated, "during our marriage, Brian has intimidated me and been very abusive." She explained she did not speak English when she first moved to the United States, and as a result, she was very dependent on Brian during their first few years of marriage. Adriana averred that Brian subjected her to verbal abuse, often in the presence of their daughter, and that he repeatedly threatened to remove Halen from her custody if she obtained a divorce. Adriana asserted that Brian repeatedly made contact with her, despite requests by both her and her attorney not to contact her. On one occasion, Brian showed up unannounced at Adriana's house and demanded to see Halen. When Adriana told Brian to speak to her attorney or the guardian ad litem (which the District Court had recently appointed), Brian began beating on her door, while Halen and Adriana's ten-year-old sister "were hysterical and crying." Adriana called her attorney for advice, then hung up and called the police because she thought Brian was going to break down the door. Brian heard her call the police and left.

¶5 Adriana's affidavit further stated that she was afraid to leave her daughter alone with Brian, due to his "very emotional and irrational" behavior. She cited a statement Brian made to her about how he considered killing himself and his son from a prior marriage while going through his first divorce, and she stated "I am afraid he may kill me or Halen." Adriana also alleged that Brian had a mental health diagnosis for which he remained untreated. Based on this affidavit, the District Court found that harm might result if an order was not issued pursuant to § 40-15-201(4), MCA, and thus issued Adriana a Temporary Order of Protection.

ΒΆ6 A hearing on the Temporary Order of Protection took place on September 24, 1997, and continued on September 29. Both parties called witnesses, and the guardian ad litem testified. Towards the end of the hearing, Brian stated that he would not contest the Temporary Order of Protection, but wanted it to be made mutual. The District Court did not act on Brian's statement and continued with the hearing. Brian never filed for a Temporary Order of Protection against Adriana. On October 2, ...


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