Searching over 5,500,000 cases.


searching
Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.

Smith v. Montana First Judicial District Court

Supreme Court of Montana

May 29, 2018

DEBORAH SUSAN SMITH, Petitioner,
v.
MONTANA FIRST JUDICIAL DISTRICT COURT, LEWIS AND CLARK COUNTY, THE HONORABLE JOHN W. LARSON, PRESIDING, Respondent.

          ORDER

         Deborah 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).

         This 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.

         Debbie 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.

         Debbie's 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).

         Debbie 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 summarily."

         Debbie's 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).

         Accordingly, 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.

         The 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 Court; ...


Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.