D. Ward v. S. VanDyke ( 2020 )

08/12/2020 IN THE SUPREME COURT OF THE STATE OF MONTANA Case Number: DA 20-0320 DA 20-0320 ;,„; , DAVID ALLEN WARD, AUG 1 2 2020 Bowen Greenwood Clerk of Supreme Court Petitioner and Appellant, State of Montana and ORDER SHANELLE J. VAN DYKE, Respondent and Appellee. Through counsel, Shanelle J. Van Dyke (Van Dyke) moves to dismiss this appeal because it is premature. Self-represented Appellant David Allen Ward(Ward)has not filed a response. Ward is appealing the First Judicial District Court's May 13, 2020 order denying his motion to modify an order of protection issued in February 2020. Van Dyke points out that the underlying proceeding began with her petition for a temporary order of protection in the Lewis and Clark County District Court last year, later consolidated with Ward's petition to establish a parenting plan.' She points out that Ward already appealed the February order ofprotection in March 2020 and later moved to dismiss the appeal on advice of counsel. This Court dismissed the appeal with prejudice. Van Dyke v. Ward, No. DA 20-0172, Order (Mont. Mar. 26, 2020). Van Dyke notes that the consolidated action remains pending, and Ward is represented by counsel in that action. Van Dyke contends that Ward's instant appeal is an attempt to reach the terms ofthe February order of protection, the appeal of which already was dismissed with prejudice. Van Dyke concludes that this appeal should be dismissed because it is not ripe and does not contain a M.R. Civ. P. 54(b)certification from the District Court. She also requests fees to respond to what she argues is a frivolous appeal. The initial action was Van Dyke v. Ward, Cause No. CDR-2019-685, and it was consolidated with the parenting plan proceeding, Cause No. BDR-2020-49, on April 22,2020. Upon review, we agree that this appeal is not properly before the Court. Ward does not appeal a final judgment, pursuant to M. R. App. P. 4(1)(a) and 6(1), as the proceeding remains pending before the District Court. We decline to award Van Dyke fees in responding to this appeal. M.R. App. P. 19(5). Future improper filings may warrant an award of sanctions, and we expressly warn Ward that he is not to file documents in this Court on his own behalf while he is represented by counsel and while this matter is still pending in the District Court. See M.R. App. P. 10(1)(c), 19(5). IT IS THEREFORE ORDERED that Van Dyke's Motion to Dismiss Appeal is GRANTED. This appeal is DISMISSED without prejudice. IT IS FURTHER ORDERED that Van Dyke's Request for Fees is DENIED. The Clerk of the Supreme Court is directed to close this case as of the date of this Order and to issue remittitur. The Clerk also is directed to provide a copy ofthis Order to the appointed mediator, Robert T. Cummins; to the Honorable Michael F. McMahon,First Judicial District Court; to Angie Sparks, Clerk of District Court, Lewis and Clark County, under Cause No. BDR 20-049;to counsel ofrecord; to David B. Gallik, and to David Allen Ward personally. DATED this day of August, 2020. •