Susan Smith (Debbie) petitions this Court for supervisory
control of the First Judicial District Court, Lewis and Clark
County, and the Honorable John W. Larson. She requests that
this Court stay and vacate the District Court's recent
orders, which have temporarily suspended the final parenting
plan and interrupted Debbie's planned in-person parenting
time with her child. In seeking relief with this Court,
Debbie explains that the guardian ad litem (GAL) submitted a
report and recommendations with the District Court concerning
the child, for which the court ordered its filing, and that
the District Court acted upon the recommendations by
"immediately" adopting them. She states that she
filed objections to the GAL's report and the court's
orders. She asserts due process violations because she did
not receive timely notice of the Judge's interview with
the child and that she should have a copy of that
interview's transcript after filing such requests. Debbie
also moves this Court to an immediate stay under seal of
these proceedings and notes opposing counsel's objection.
Counsel for Timothy Davis has not filed a response to
Debbie's motion, Supervisory control is an extraordinary
remedy. We must find the existence of urgency or emergency
factors that cannot adequately be addressed through the
normal appeal process. M. R. App. P. 14(3). "This Court
will assume supervisory control of a district court to direct
the course of litigation where the district court is
proceeding based upon a mistake of law, which if uncorrected,
would cause significant injustice for which an appeal is an
inadequate remedy." Redding v. Mont. First Judicial
Dist. Ct., 2012 MT I44A, ¶ 18, ___Mont.___, 281
P.3d 189 (citation omitted).
Court issued a decision in this custody proceeding last year.
In re Parenting Plan for N.C. D., 2017 MT 272N, 390
Mont. 425, 407 P.3d 679. We affirmed the District Court. We
addressed the GAL's appointment and, in explaining that
the court did not abuse its discretion, stated that the GAL
is "to 'represent the interests of a minor dependent
child with respect to the child's support, parenting, and
parental contact.' Section 40-4-205(1), MCA." In
re Parenting Plan of N.C. D., ¶ 12.
has not demonstrated urgency, emergency factors, or a mistake
of law by the District Court, which necessitate this
Court's original jurisdiction of this proceeding. In
considering the GAL's report and recommendations, the
District Court decided to interview the child, which pursuant
to § 40-4-214, MCA, the court may do and has broad
discretion to do so. In re Marriage of Mitchell, 248
Mont. 105, 109, 809 P.2d 582, 584-85 (1991); Bier v.
Sherrard, 191 Mont. 215, 21.6-18, 623 P.2d 550, 551
(1981). The District Court's orders have temporarily
suspended the parenting plan based on the information before
the court. While the court's actions may have thwarted
Debbie's plans for her weekends with the child, she
retains the remedy of an appeal in which she may raise any
issues or alleged errors.
assertion for a copy of the transcript is without merit. The
federal and state case law do not support her argument.
"It is obvious the ultimate purpose of the requirement
of a record of the child's interviews is to accord
the parties to the action, the husband and wife, a
full record which would support any finding the court might
make regarding wishes of the children, and the bearing of
those wishes in his final decision." Counts V.
Chapman, 180 Mont. 102, 107, 589 P.2d 151, 154 (1979)
(emphasis in original). She became aware of the child's
wishes upon the filing of the GAL's report. Under Montana
law and at this juncture, Debbie is not entitled to a copy of
the interview's transcript which the court has made part
of the record for appeal. In re Marriage of
Arbuckle, 243 Mont. 10, 14, 792 P.2d 1123, 1125 (1990).
also has not sought a stay properly in the District Court or
in this Court. She has not complied with M. R. App. P. 22(1)
or 22(2)(a). We requested and reviewed a more recent copy of
the court's docket. Under the Montana Rules of Appellate
Procedure, a person must seek a stay first in District Court
for which the court has jurisdiction. M. R. App. P.
22(1)(a)(i); 22(1)(c). Debbie has not done so. There is no
District Court Order for this Court to consider under these
rules. M. R. App. P. 22(2). A party must comply with the
Montana Rules of Appellate Procedure when seeking a stay
here. M. R. App. P. 22 establishes that "motions under
this rule which have not been filed in accordance with
sections (1) and (2)(a) of this rule . . . will be denied
motion to file this writ under seal pursuant to M. R. App.
l0(c)(iv) and 10(d) is unavailing. Debbie provides no law to
support denying public access to any other information here.
Moreover, the party who files a document with the Clerk of
Supreme Court shall redact confidential personal information
under M. R. App. P. l0(7)(b).
IT IS ORDERED that Debbie's Petition for a Writ of
Supervisory Control is DENIED, and that the Motion to File
Petition for Writ of Supervisory Control and Request for
Immediate Stay under Seal is DENIED and DISMISSED.
Clerk is directed to provide a copy of this Order to the
Honorable John W. Larson, Fourth Judicial District Court; to
Angle Sparks, Clerk of Court, Lewis and Clark County District