Lear v. Jamrogowicz , 2015 MT 153N ( 2015 )

June 2 2015
DA 14-0550
Case Number: DA 14-0550
IN THE SUPREME COURT OF THE STATE OF MONTANA
2015 MT 153N
STACY LEAR,
Petitioner and Appellee,
v.
CARRIE A. JAMROGOWICZ,
Respondent and Appellant.
APPEAL FROM: District Court of the Fourth Judicial District,
In and For the County of Missoula, Cause No. DV-13-642
Honorable Ed McLean, Presiding Judge
COUNSEL OF RECORD:
For Appellant:
Quentin M. Rhoades, Alison Garab, STR & Associates, P.C.; Missoula,
Montana
For Appellee:
Joshua S. Van de Wetering, Van de Wetering Law Offices, P.C.;
Missoula, Montana
Submitted on Briefs: April 15, 2015
Decided: June 2, 2015
Filed:
__________________________________________
Clerk
Justice James Jeremiah Shea delivered the Opinion of the Court.
¶1 Pursuant to Section I, Paragraph 3(c), Montana Supreme Court Internal Operating
Rules, this case is decided by unpublished opinion and shall not be cited and does not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 Carrie A. Jamrogowicz appeals the Fourth Judicial District Court’s order denying
her motion to terminate a permanent order of protection that prohibits her from having
contact with Stacy Lear. We affirm.
¶3 The issues on appeal are (1) whether the District Court erred as a matter of law
when it refused to dismiss the order of protection based on a General Release executed by
Lear, and (2) whether the firearms restriction in the order of protection infringes upon
Jamrogowicz’s constitutional right to bear arms.
¶4 In July of 2012, the State of Montana charged Jamrogowicz with misdemeanor
stalking of Lear. Lear petitioned for an order of protection, and the District Court entered
a Permanent Order of Protection on August 12, 2013. Then, in February of 2014,
Jamrogowicz pled nolo contendere to the stalking charge. In accord with the plea
agreement, the court deferred imposition of sentence for 90 days, with conditions
including one that Lear execute a release of all civil claims against Jamrogowicz. Lear
executed that release, and Jamrogowicz successfully completed the 90-day deferral
period in May of 2014.
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¶5 The District Court then allowed Jamrogowicz to withdraw her plea and dismissed
the criminal case. At the same time, Jamrogowicz moved to terminate the August 2013
order of protection, based on her compliance with the conditions of the release executed
by Lear. The District Court denied the motion to terminate the order of protection, and
Jamrogowicz appeals.
¶6 On appeal, Jamrogowicz argues the District Court erred in failing to terminate the
order of protection, which she contends was included in Lear’s release of “any and all
claims.” She maintains that, as a matter of contract law, that release included the order of
protection. Jamrogowicz further contends the District Court had no factual basis to
refuse to dissolve the order of protection, and that good cause does not exist to support a
permanent order of protection. She points out that, in entering the permanent order of
protection, the District Court made no finding that she has a history of violence or of
commission of any offense or that there is a demonstrated need to avoid further harm, as
is required for a permanent order of protection under § 40-15-204(1), MCA.
¶7 Jamrogowicz’s contract law arguments are not persuasive. The permanent order
of protection is not a claim by Lear, but a preexisting court order. Section 40-15-204(5),
MCA, provides that an order of protection “may be terminated upon the petitioner’s
request that the order be dismissed.” In this case, Lear, not Jamrogowicz, was the
petitioner. Therefore, the District Court did not err in ruling it had no statutory authority
to terminate the order of protection at Jamrogowicz’s request. Further, even if, as
Jamrogowicz argues, Lear’s execution of the release functioned as her request that the
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order of protection be released, the statute says the court “may” terminate the permanent
order of protection upon petitioner’s request. The District Court retained discretion.
¶8 As to Jamrogowicz’s claim that there was an insufficient basis for the permanent
order of protection, Jamrogowicz failed to appeal from that order within the 30 days
allowed for such an appeal. See M. R. App. P. 4(5)(a)(i); Marriage of Lockhead, 2013
MT 368, 373 Mont. 120, 314 P.3d 915. She waived this claim by her failure to timely
appeal.
¶9 Jamrogowicz additionally argues on appeal that a provision in the permanent order
of protection that prohibits her from possessing firearms while she is within the state of
Montana violates her constitutional right to bear arms. Although she raised a similar
argument in the District Court before that court entered the permanent order of
protection, Jamrogowicz did not raise this argument in relation to the order now on
appeal, addressing her motion to dismiss the permanent order of protection. We do not
generally address an issue raised for the first time on appeal, and Jamrogowicz has given
us no reason to do so here. See Becker v. Rosebud Operating Servs., 2008 MT 285, ¶ 17,
345 Mont. 368, 191 P.3d 435.
¶10 We have determined to decide this case pursuant to Section I, Paragraph 3(c) of
our Internal Operating Rules, which provides for unpublished opinions. In the opinion of
the Court, this case presents questions controlled by settled law or by the clear
application of applicable standards of review. The District Court’s interpretation and
application of the law were correct. And, on this record, the court’s denial of
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Jamrogowicz’s motion to dismiss the permanent order of protection was not an abuse of
discretion.
/S/ JAMES JEREMIAH SHEA
We Concur:
/S/ MIKE McGRATH
/S/ LAURIE McKINNON
/S/ BETH BAKER
/S/ PATRICIA COTTER
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