Petitioner Karsa Dreckman (Karsa), through counsel, has filed
a petition asking this Court to exercise supervisory control
over the Montana Seventh Judicial District Court, Richland
County, the Honorable Deborah Kim Christopher presiding.
Karsa requests that we vacate an Ex Parte Emergency Interim
Order and an Order for Contempt, both entered on August 24,
2017. The Seventh Judicial Court (District Court) has filed a
Response. Randall Ray Radke, Jr. (Randall), through counsel,
has also filed a response. We have considered the petition
and both responses.
and Randall are the biological parents of K.R.R., born in
2006. On May 5, 2008, Karsa and Randall successfully mediated
a parenting plan for K.R.R. and a Final Parenting Plan was
adopted and ordered by the District Court, on September 8,
31, 2017, Randall filed a Motion for Ex Parte Emergency
Interim Parenting Plan, citing as authority §
40-4-220(2)(a)(ii), MCA, that "although a previous
parenting plan has been ordered, an emergency situation has
arisen in the child's present environment that endangers
the child's physical, mental, or emotional health and an
immediate change in the parenting plan is necessary to
protect the child." The motion averred that it was based
on affidavits filed by Randall and K.R.R., although this
Court has not had the benefit of examining the affidavits
because they were not submitted with the pleadings filed
pursuant to the instant petition.
District Court determined that Randall had not followed
Uniform District Court Rule 3 regarding ex parte motions and
treated the motion as a regular motion. Pursuant to Uniform
District Court Rule 2, the District Court reasoned a response
and brief must be filed within 14 days (plus 3 days for
mailing) or before August 17, 2017. On August 22, 2017, Karsa
filed a Response to Randall's ex parte motion and a
Motion to Set Aside Ex Parte Emergency Order, both of which
were entered by the clerk on August 23, 2017. Karsa was
apparently aware that on August 22, 2017, the District Court
had signed Randall's Ex Parte Emergency Interim Order.
However, the District Court's order was not filed with
the clerk until August 24, 2017.
resides in Iowa and, at the time the interim order was
issued, K.R.R. was residing with her. Pursuant to the interim
order, Randall drove to Iowa to bring K.R.R. back to Sidney,
Montana. Apparently Karsa refused to relinquish K.R.R. and
law enforcement was summoned. As a result, on August 24,
2017, the District Court entered an order granting
Randall's Emergency Ex Parte Motion for Contempt and for
Sanctions and Attorney Fees requiring Karsa to pay attorney
fees and costs in the amount $ 1, 000 and a monetary
"sanction" in the amount of $1, 500 for her
"blatant refusal to return the child to Montana."
In the order, the District Court also denied Karsa's
motion to set aside the August 24, 2017, order adopting the
interim parenting plan.
seeks relief from the ex parte order adopting Randall's
interim parenting plan and the order holding her in contempt.
She maintains that the District Court was required to conduct
a hearing within 21 days of signing the ex parte order and
that no hearing has been held. Randall and the District Court
contend that once the ex parte emergency motion was entered
as a regular motion, Karsa was required to respond within 14
days pursuant to Uniform District Court Rule 2. As
Karsa's Response and Motion to Set Aside were not filed
until August 23, 2017, the District Court and Randall
maintain that the interim parenting plan was subject to
summary ruling, which the District Court made.
we are disadvantaged by the lack of a complete record in
reviewing Karsa's petition for supervisory control, we
nonetheless are convinced that the District Court was
misinterpreting several statutory provisions. To begin,
§ 40-4-213(1), MCA, relating to interim parenting plans,
provides that "[a] party to a parenting proceeding may
move for an interim parenting plan" and that the
"motion must be supported by an affidavit as provided in
40-4-220(1)." Section 40-4-213(1), MCA, also provides
that "[t]he court may adopt an interim parenting plan
under the standards of 40-4-212 after a hearing or
under the standards of 40-4-212 and 40-4-220(2) before a
hearing.” (Emphasis added.) "If there is no
objection, the court may act solely on the basis of the
affidavits." Section 40-4-213(1), MCA.
District Court determined that Randall had not met the
requirements of Uniform District Court Rule 3 regarding ex
parte motion practice. Accordingly, the District Court did
not render its decision pursuant to the provisions of §
40-4-220(2)(a)(ii), MCA, the only applicable provision here
which would allow granting of ex parte relief. Also, the
District Court did not apply § 40-4-220(1), MCA, which
would require it to dismiss the motion unless it found
"adequate cause" for a hearing. Pursuant to
§§ 40-4-220(1) and -213(1), MCA, the District Court
was required to "deny [Randall's] motion unless it
finds that adequate cause for hearing the motion is
established by the affidavits, based on the best interests of
the child, in which case it shall set a date for hearing on
an order to show cause why the requested plan or amendment
should not be granted." In order to grant Randall's
motion for an interim parenting plan, the District Court was
required to conduct a hearing and the hearing had to be held
within 21 days of its order. Section 40-4-220(2)(b), MCA,
provides that the show cause hearing "must be held
within 21 days from the execution of the interim parenting
plan [to establish] why the interim parenting plan should not
remain in effect until further order of court."
Randall filed his emergency ex parte motion, the parties had
not agreed on an interim parenting plan. Accordingly, the
District Court was required to determine whether there was
adequate cause for conducting a hearing, a hearing which must
be set within 21 days, or otherwise deny Randall's
motion. Section 40-4-213, MCA, works in conjunction with
§ 40-4-220, MCA, by requiring that a court may adopt an
interim parenting plan after a hearing or, if the standards
of § 40-4-220(2), MCA, have been met, before a hearing.
Here, the District Court adopted an interim parenting plan
without a hearing and without making a determination that the
requirements of § 40-4-220(2)(b)(ii), MCA, were
satisfied. While Uniform District Court Rule 2 does set forth
a general rule of motion practice requiring a response within
14 days, the rule does not take precedence over express
statutory provisions setting forth the procedure to be
employed for entertaining interim parenting plan proceedings.
Court will exercise supervisory control over another court
when urgency or emergency factors exist making the normal
appeal process inadequate, when the case involves purely
legal questions, and when the other court is proceeding under
a mistake of law and is causing a gross injustice. M. R. App.
P. 14(3). We find that all three factors have been satisfied
here. First, Karsa has no right to appeal the failure of the
District Court to set a hearing before adopting Randall's
interim parenting plan; thus, the normal appeal process is
inadequate to address the failure of the District Court to
conduct a hearing. Second, the District Court did not follow
the statutory requirements of §§ 40-4-213 and -220,
MCA, when it failed to set a show cause hearing within 21
days of entry of the interim parenting plan. The question of
whether the court violated the governing statute is purely a
question of law. Finally, the District Court is proceeding
under a mistake of law and is causing a gross injustice by
ignoring the mandatory provisions of §§ 40-4-213
and -220, MCA.
IT IS ORDERED that Karsa's petition for writ of
supervisory control is GRANTED. The District Court's
August 22, 2017 ex parte order implementing the emergency
interim parenting plan requested by Randall is VACATED.
FURTHER ORDERED that this matter is remanded to the District
Court for a determination, consistent with this order and
§§ 40-4-213 and -220(1), MCA, of whether there
exists adequate cause for setting a hearing on Randall's
motion for amendment of the parenting plan. As this Court is
unsure of the location of K.R.R., the child's location
will not be changed pending a decision by the District Court.
FURTHER ORDERED that the District Court's August 24, 2017
order finding Karsa in contempt and assessing sanctions,
attorney fees, and costs is VACATED.
FURTHER ORDERED that the Clerk of this Court provide
immediate notice of this Order to the Hon. Deborah Kim
Christopher, sitting for the Seventh ...