Marriage of O'Connell ( 2021 )

11/02/2021
IN THE SUPREME COURT OF THE STATE OF MONTANA
Case Number: DA 21-0522
DA 21-0522
IN RE THE MARRIAGE OF:
FILED
NOV 0 2 2021
ANGELIKA KAFFENBERGER, f/k/a Bovven Greenwood
ANGELIKA O'CONNELL, Clerk of Supreme Court
State of Montana
Petitioner and Appellee,
ORDER
and
THOMAS O'CONNELL,
Respondent and Appellant.
Representing himself, Thornas O'Connell petitions this Court for an out-of-tirne
appeal, indicating that he discussed filing a timely appeal with his attorney, but that his
attorney failed to file it for him. Thomas includes a copy of an April 14, 2021 Judgment,
issued in the Eighth Judicial District Court, Cascade County, after a hearing determining
payments owed, interest, and attorney's fees. At this hearing, Thornas was represented by
counsel. Through counsel, Angelika Kaffenberger has filed a response in opposition to
Thomas's Petition for an Out-of-Time Appeal. Thomas also moves this Court to stay
execution of an order during his appeal.
As a threshold rnatter, Thomas's motion is improperly pled. He indicates that he
included an affidavit in support of his motion. There is no affidavit included nor did
Thomas serve opposing counsel with a copy of his rnotion. We will not consider this
document.
Thomas argues that he was not represented properly in the District Court. He
provides that the April 13, 2021 hearing was held by Standing Master David Grubich and
that his attorney did not follow-through with Thomas's witnesses for this hearing. He
contends that he was awarded the house in the divorce decree and that now "[Ole judge
ordered the house to be sold." He contends that his ex-wife's realtor was selected and that
he later objected to this because he has a "legal right to pick [his] realtor if need be."
Thomas provides that he cannot sell the house because of the tax liens.
Angelika responds that this Court should deny Thomas's Petition. Angelika
explains that Thomas was given numerous opportunities to comply with the divorce decree,
which was entered on August 16, 2017. She includes a copy of the court's docket and
further explains that the April 14, 2021 Order attached to his Petition was entered by the
District Standing Master. Angelika also points out that the Standing Master issued the
July 13, 2021 Order After Hearing, regarding the sale of the residence and listing the
property for sale by July 16, 2021. Citing to M. R. App. P. 4(6), Angelika contends that
there are no extraordinary circumstances to warrant an out-of-time appeal. She concludes
that "[t]he orders were entered only after [Thomas] failed to abide by the provisions of the
agreed-upon decree."
M. R. App. P. 4(6) allows this Court to grant an out-of-time appeal "[i]n the
infrequent harsh case and under extraordinary circumstances amounting to a gross
miscarriage of justice[.]"
Upon review, Thomas seeks to delay what has been put in motion more than four
years ago. According to the register of actions, this proceeding was initially closed on
August 16, 2017, when the court entered its decree based on the hearing for joint petition
for dissolution. In May 2018, a rnotion to enforce maintenance was filed, and the matter
was referred to a Standing Master on September 13, 2018. Since then, it appears the
Standing Master has tried to enforce the 2017 decree through hearings on the case's status
and contempt motions. The recent July 13, 2021 Order pointed out that the sale of the
residence was originally ordered in March 2021, and that Thomas's bankruptcy proceeding
had been dismissed in June 2021. The court granted Thomas's counsel leave to withdraw
after the July 2021 hearing. Thomas's relief is not with this Court. We point out that a
party cannot appeal an order issued by a standing master. Beals v. Beals, 2013 MT 120,
Tif 10-13, 370 Mont. 88, 300 P.3d 1158; § 3-5-126, MCA. Thomas has not dernonstrated
a harsh case, and denial of his petition will not result in a gross miscarriage of justice.
2
IT IS ORDERED that Thomas's Petition for an Out-of-Time Appeal is DENIED
and DISMISSED.
IT IS FURTHER ORDERED that Thomas's "Motion to Stay of Execution of Order
During Appeal with Montana Supreme Court" is DENIED, as moot.
The Clerk of the Supreme Court is directed to provide a copy of this Order to Tina
Henry, Clerk of District Court, under Cause No. CDR-17-381; to counsel of record, and to
Thomas O'Connell persoj ally.
t.
DATED this day of Novernber, 2021.
Chief Justice
3