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In re Marriage of Rorabaugh

Supreme Court of Montana

October 15, 2019

IN RE THE MARRIAGE OF: JASON L. RORABAUGH, Petitioner and Appellee,
v.
NIKKIL. ZELENKA f/k/a RORABAUGH, Respondent and Appellant.

          ORDER

         Nikki L. Želenka (Nikki) has filed a "Request to Correct the Filing Date of this Case to the Date the Appeal was Electronically Filed" and "Motion to Request a Stay of Proceedings to Allow for Emotional and Mental Healing Post Sexual Assault." Through counsel, Jason Rorabaugh (Jason) responds in opposition. Jason has since filed a Motion to Dismiss Appeal. Nikki did not file a response. On October 11, 2019, Nikki instead filed a Motion for Leave to Reply to Jason's Response to her Motion to Stay Proceedings; a Motion for Leave to Reply to Jason's Response to her Motion to Correct Filing Date; and a Motion for Extension of Time to Respond to Jason's Motion to Dismiss.

         Preliminarily, we observe what Nikki seeks to appeal. Nikki's appeal is of a M. R. Civ. P. 60 motion which was deemed denied when the Gallatin County District Court did not rule on the motion for sixty days. More particularly, on March 29, 2019, Nikki fax-filed her Rule 60 motion entitled "Status Report, Motion for Summary Judgment Regarding Condominium Profits, Withdrawal of Motion for Contempt, Withdrawal of Motion to Update Finances (But Request for Updated Child Support Order that Aligns with Terms of Stipulation Between the Parties, and Rule 60 Motion for Relief from Partial Relief from Judgment/Order and Request for Evidentiary Hearing Regarding Fraud, Misrepresentation and Misconduct Committed by Petitioner and His Counsel." Nikki has had one appeal with this Court. Rorabaugh v. Zelenka, No. DA 18-0013, 2018 MT 286N, 2018 Mont. LEXIS 408. Nikki raised issues in a timely petition for rehearing that this Court denied but nonetheless amended language in our decision. Rorabaugh v. Zelenka, No. DA 18-0013, Order (Mont. Jan. 8, 2019); Rorabaugh v. Zelenka, No. DA 18-0013, 2018 MT 286NA, 2019 Mont. LEXIS 10. This appeal, therefore, is Nikki's second appeal.

         Respecting Nikki's current motions with this Court, Nikki contends that she filed the instant appeal on June 19, 2019, by faxing her Notice of Appeal to the Clerk of the Supreme Court. She wrote on her cover sheet that she would mail the filing fee either that same day or on June 20, 2019. Nikki states that because of a motor vehicle accident and an upcoming trip, she forgot to mail her payment. She contacted the Clerk's Office and informed them that she mailed the check on June 26, 2019. Nikki's Notice of Appeal was dated June 28, 2019, which is one day past the June 27, 2019 deadline. On September 19, 2019, Nikki also moved this Court for a stay of this appeal because of an alleged sexual assault which occurred on June 28, 2019.

         Jason responds that he seeks closure of this litigation and that this divorce case has been pending for more than eight years. He states that Jason opposes any request for a stay.

         Under the Montana Rules of Appellate Procedure, a person must seek a stay first in District Court for which the court has jurisdiction even during the pendency of an appeal. M. R. App. P. 22(1)(a)(i); 22(1)(c). Nikki has not done so. A party must comply with the Montana Rules of Appellate Procedure when seeking a stay here. M. R. App. P. 22 establishes the requirements, which includes 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." There is no District Court Order for this Court to consider under these rules. M. R. App. P. 22(2). Nikki has not complied with M. R. App. P. 22(1) or 22(2)(a).

         We decline to change the date Nikki's appeal should be deemed filed. "In order to comply with a time-specific requirement, the document must be filed or the act performed on or before the last day of the time specified." M. R. App. P. 3. "A facsimile shall not be timely filed unless it is actually received by the clerk of the supreme court . . . ." M. R. App. P. lO(1)(b). The Clerk's Office may have received the facsimile filing of Nikki's Notice of Appeal, but the Office cannot docket Nikki's appeal until receipt of the documents and the accompanying payment.

         While this Court acknowledges Nikki's statements about her alleged assault and subsequent health effects, we are mindful of Nikki and her time in filing her recent motions in lieu of a response to the pending motion to dismiss. This Court declines to make an exception to the rules. "Any latitude given to self-represented litigants 'cannot be so wide as to prejudice the other party.'" In re Marriage of Hardman, 2019 MT 152, ¶ 20, 396 Mont. 238, 443 P.3d 1108 (citing Cox v. Magers, 2018 MT 21, ¶ 15, 390 Mont. 224, 411 P.3d 1271 (internal citation and quotations omitted)). Accordingly, IT IS ORDERED that:

1. Nikki's "Request to Correct the Filing Date of this Case to the Date the Appeal was Electronically Filed" and "Motion to Request a Stay of Proceedings to Allow for Emotional and Mental Healing Post Sexual Assault" are both DENIED;
2. Nikki's Motion for Leave to Reply to Jason's Response to her Motion to Stay Proceedings; Motion for Leave to Reply to Jason's Response to her Motion to Correct Filing Date; and Motion for Extension of Time to Respond to Jason's Motion to Dismiss-"Which is Apparently Based on the Filing Fee Check Seemingly Arriving One Day Late" are all DENIED; and
3. Jason's Motion to Dismiss is GRANTED and this appeal is DISMISSED with prejudice.

         The Clerk is directed to provide a copy of this Order to counsel of record ...


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