Roselle v. Cross

No. 92-411
IN THE SUPREME COURT OF THE STATE OF MONTANA
1993
CLAY ROSELLE,
plaintiff and Appellant,
DEBRA CROSS and MONTANA DEPARTMENT
OF SOCIAL AND REHABILITATION SERVICES
Defendants and Respondents.
APPEAL FROM: District Court of the Fifth Judicial District,
In and for the County of Beaverhead
The Honorable Frank M. Davis, Judge presiding.
COUNSEL OF RECORD:
For Appellant:
Clay Roselle, Pro Se, Lima, Montana
For Respondents:
Debra Cross, Pro se, Rexford, Montana;
John McRae, Department of Social and
Rehabilitation Services, Child Support
Enforcement Division, Missoula, Montana
Submitted on Briefs: December 29, 1992
Decided: January 21, 1993
Filed:
Justice William E. Hunt, Sr., delivered the opinion of the Court.
Plaintiff and appellant Clay Roselle, acting pro se, brought
suit on April 23, 1992, in the District Court for the Fifth
Judicial District, Beaverhead County. The named defendants in this
action were the Montana Department of Social and Rehabilitation
services (Department) and Debra Cross, the mother of a minor child,
J.G.R. The Department moved the District Court to dismiss the
action against the Department pursuant to Rule 12(b) ( 6 ) ,
M.R.Civ.P., for failure to state a claim upon which relief may be
granted. The District Court found the complaint filed by Roselle
to be nearly unintelligible. In addition, the District Court found
Roselle's action to be premature. On July 20, 1992, the District
Court dismissed the entire action without prejudice. We affirm.
The only issue on appeal is whether the District Court erred
in dismissing Roselle's complaint.
On December 21, 1989, defendant and respondent Debra Cross
gave birth out of wedlock to J.G.R. Cross alleges that Roselle is
the biological father. The Child Support Enforcement Division
(CSED) of the Department became involved in this matter in an
attempt to establish the identity of the biological father and to
insure, to the extent possible, that support was provided on behalf
of the child. The CSED was attempting to fulfill its obligation
pursuant to §§ 40-5-202 and -232, MCA. The CSED sent a Notice of
Parental Responsibility form to Roselle requesting that he either
admit or deny paternity of the child. When Roselle refused to
admit paternity, the CSED scheduled an administrative hearing
pursuant to 5 40-5-233, MCA.
The purpose of the hearing provided for in 5 40-5-233, MCA, is
to determine if a reasonable probability exists that the alleged
father could be the child's natural father. If such reasonable
probability exists, the alleged father can be required to submit to
p a t e r n i t y blood testing pursuant to 5 40-5-234, MCA. If t h e blood
test conclusively shows that the alleged father could not have been
the child's natural father, the issue of paternity shall be
resolved accordingly. If the blood test does not exclude the
alleged father and he continues to deny paternity, the matter is
referred to the District Court for trial pursuant to 5 40-5-236,
MCA .
In the present case, the administrative hearing provided for
in 40-5-233, MCA, has not been held. Prior to the hearing,
Roselle filed suit in District court. Rosellelscomplaint filed
with the District Court contained numerous vague and amorphous
grievances. The lengthy complaint raised allegations of fraud and
entrapment against Cross. Roselle questioned the true identity of
the biological father of the child. Roselle then requested that a
custody determination be made by the ~istrict Court. Roselle
requested a determination of paternity by the Department, while at
the same time seeking an injunction against all proceedings by the
Department. ina ally, after seeking an injunction against the
Department, Roselle requested an award of damages against the
Department for lack of action.If
The District Court, in its findings and order dismissing
Roselle's action stated that:
The record as a whole discloses an ambiguous,
uncertain and unintelligible series of grievances. On
the one hand, Plaintiff seems to be denying paternity,
but on the other hand seeks a determination of visitation
and custodial rights. The Court finds that the entire
proceeding is premature, and speculative. Plaintiff has
failed to exhaust his administrative remedy.
The District Court further stated that:
The Court's rationale is pretty much set forth in
the decision. The Court would only add that the
Plaintiff is fortunate that sanctions were not imposed
for the institution of frivolous litigation. The fact
that Plaintiff acted pro se moved the Court's tolerance
in this respect.
Whatever grievances Plaintiff has can be resolved
simply by (a) admitting the father issue and bring the
issue of custody, visitations and support to Court by a
proper action, or (b) deny that he is the father and
submit to the confining blood test procedure. The
dismissal of the case without prejudice fully protects
his future grievances, real or imagined.
In light of the complaint filed by Roselle, he is indeed
fortunate that sanctions were not imposed for the institution of
frivolous litigation. The District Court determined as a matter of
law that Roselle's complaint failed to state a claim upon which
relief may be granted. We agree. The complaint was not only
unintelligible as to the claims asserted, but would be premature in
any event. The District Court's dismissal without prejudice of
Roselle's complaint is affirmed.
Pursuant to Section I, Paragraph 3(c), Montana Supreme
Court 1988 internal Operating Rules, this decision shall not be
cited as precedent and shall be published by its filing as a public
document with the Clerk of the Supreme Court and by a report of its
result to Montana Law Week, State Reporter and West Publishing
Company.
/
'
Justice
We concur:
January 21, 1993
CERTIFICATE O F SERVICE
I hereby certify that the following order was sent by United States mail, prepaid, to the
following named:
William Clay Roselle
P.O. Box 38
Lima, MT 59739
JOHN McRAE
Department of Social and
Rehabilitative Services
Child Support Enforcement Divison
2501 Catlin, Suite 208
Missoula, MT 59801
Debra Cross
P. 0. Box 21
Rexford. MT 59930
ED SMITH
CLERK O F THE SUPREME COURT
STATE O F MONTANA .