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A.C. v. Borkholder

Supreme Court of Montana

September 17, 2019

A.C., a Minor Child, by her Guardian TANYA CHARLES, f/k/a/ TANYA BORKHOLDER, Plaintiff and Appellee,
DENNIS BORKHOLDER, Defendant and Appellant.

          Submitted on Briefs: July 31, 2019

          APPEAL FROM: District Court of the Twenty-First Judicial District, In and For the County of Ravalli, Cause No. DV-18-226 Honorable Jennifer B. Lint, Presiding Judge.

          For Appellant: Dustin M. Chouinard, Markette & Chouinard, P.C., Hamilton, Montana

          For Appellee: Nathan G. Wagner, Datsopoulos, MacDonald & Lind, P.C., Missoula, Montana


          James Jeremiah Shea Justice.

         ¶1 Pursuant to Section I, Paragraph 3(c), Montana Supreme Court Internal Operating Rules, this case is decided by memorandum opinion and shall not be cited and does not serve as precedent. Its case title, cause number, and disposition shall be included in this Court's quarterly list of noncitable cases published in the Pacific Reporter and Montana Reports.

         ¶2 Dennis Borkholder appeals the Order of the Twenty-First Judicial District Court, Ravalli County, granting A.C.'s request, by and through her guardian, Tanya Charles (f/k/a Tanya Borkholder), for a preliminary injunction to prevent Borkholder from dissipating his assets while A.C.'s civil claim for damages against him is pending.[1] We affirm.

         ¶3 A.C. was born in 2001. A.C. lived with her mother, Tanya Charles, and her stepfather, Borkholder. In 2017, A.C. participated in a forensic interview at a child advocacy center during which she disclosed details of sexual abuse she suffered at the hands of Borkholder. A.C. stated that the abuse began in 2008 and continued for seven years. Following the interview, a Ravalli County Sheriff's detective contacted Charles and informed her of A.C.'s disclosures. Charles stated that she confronted Borkholder with the abuse allegations, and Borkholder admitted that he had inappropriate sexual contact with A.C. Following this confrontation, Borkholder attempted to castrate himself using a device designed to castrate animals. On May 3, 2018, the State charged Borkholder with six counts of felony incest in violation of § 45-5-507, MCA. Borkholder was arraigned and pled not guilty.[2]

         ¶4 On August 23, 2017, Charles petitioned to dissolve her marriage to Borkholder.[3] In pleadings, Charles alleged Borkholder indicated that if convicted on the charges involving A.C. and sentenced to prison, Borkholder intended to turn over all of his assets to his adult children from a previous marriage. On November 21, 2017, Borkholder filed a Financial Disclosure detailing all of his assets and expenses.

         ¶5 On May 25, 2018, A.C., through Charles, filed a Motion for a Temporary Restraining Order (TRO) and Preliminary Injunction. A.C. asked the District Court to enjoin Borkholder from "transferring, encumbering, or dissipating any of his assets while this action is pending." On May 29, 2018, the District Court issued a TRO and Order to Show Cause, finding that there was a "significant risk that [A.C.] would suffer immediate and irreparable injury if [Borkholder] were able to transfer, encumber or otherwise dissipate his assets."

         ¶6 On June 25, 2018, Borkholder filed a Response in Opposition to [A.C.'s] Motion for TRO and Preliminary Injunction. In the affidavit filed with his response, Borkholder attested that he never threatened to transfer or dissipate his assets to his other children. Borkholder attested that as part of his estate planning, he executed a will in 2012 that bequeathed to each of his five children a twenty percent interest in any business interest and in all business equipment. He stated that his communications with Charles before and during dissolution proceedings "related to preserving [his] business and related assets for [his] children, not asset transfers related to the claims asserted against [him] in this matter." Borkholder also detailed the harm he believed he would suffer if the District Court granted A.C.'s injunction, including that an injunction would "severely impair or eliminate [his] ability to defend [himself] against criminal charges" and would "severely impair or eliminate [his] ability to comply with the terms of the Marital and Property Settlement Agreement . . . ."

         ¶7 On July 5, 2018, the District Court held a show cause hearing to address the injunctive relief requested. During the hearing, Charles testified that Borkholder told her that he executed a new will, and that "if he should pass away [A.C. and Charles] were in for a big surprise." Charles testified that Borkholder intended to prevent A.C. and Charles from receiving any of his assets. Charles' counsel stated that Borkholder made financial transactions in violation of the May TRO, and Charles testified that she witnessed some of Borkholder's assets being sold.

         ¶8 Borkholder's counsel argued that A.C. failed to demonstrate that a preliminary injunction was necessary. Borkholder's counsel argued that Borkholder was bound by his obligations under the Marital and Property Settlement Agreement, and the agreement provided sufficient protection from any potential asset transfers. Further, counsel argued issues of liability had yet to be resolved and pointed out that Borkholder entered a plea of "not guilty." The District Court rejected Borkholder's arguments, stating, "Mr. Borkholder has castrated himself. He's admitted he did it. Whether he pleads guilty isn't the standard I need to apply . . . ."

         ¶9 On September 7, 2018, Charles, in her capacity as Borkholder's former spouse, moved to intervene to modify the TRO to allow for disbursement of $80, 000 of Borkholder's assets to satisfy an obligation under the Final Decree dissolving Charles and Borkholder's marriage. Charles alleged that when she asked Borkholder ...

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