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In re Parenting of K.R.R.

Supreme Court of Montana

October 3, 2017

IN RE THE PARENTING OF K.R.R., KARSA DRECKMAN, Petitioner,
v.
MONTANA SEVENTH JUDICIAL DISTRICT COURT, RICHLAND COUNTY, and THE HONORABLE DEBORAH KIM CHRISTOPHER, Respondent.

          ORDER

          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.

         Karsa 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, 2008.

         On July 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.

         The 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.

         Karsa 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.

         Karsa 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.

         While 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.

         The 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."

          When 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.

         This 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.

         Accordingly, 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.

         IT IS 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.

         IT IS FURTHER ORDERED that the District Court's August 24, 2017 order finding Karsa in contempt and assessing sanctions, attorney fees, and costs is VACATED.

         IT IS FURTHER ORDERED that the Clerk of this Court provide immediate notice of this Order to the Hon. Deborah Kim Christopher, sitting for the Seventh ...


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