IN RE THE MARRIAGE OF: JASON L. RORABAUGH, Petitioner and Appellee,
NIKKIL. ZELENKA f/k/a RORABAUGH, Respondent and Appellant.
L. Å½elenka (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
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.
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.
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.
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).
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.
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
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.
Clerk is directed to provide a copy of this Order to counsel
of record ...