Marriage of Lundstrom and Scholz

November 21 2007
DA 06-0807
IN THE SUPREME COURT OF THE STATE OF MONTANA
2007 MT 304IN RE THE MARRIAGE OF:
JILL M. LUNDSTROM,
Petitioner and Appellee,
and
DIETER SCHOLZ,
Respondent and Appellant.
APPEAL FROM: District Court of the Twentieth Judicial District,
In and For the County of Sanders, Cause No. DR-06-25
Honorable Deborah Kim Christopher, Presiding Judge
COUNSEL OF RECORD:
For Appellant:
Jean Adele Carter, Attorney at Law, Thompson Falls, Montana
For Appellee:
Carolyn J. Stevens, Attorney at Law, Lolo, Montana
Submitted on Briefs: October 24, 2007
Decided: November 21, 2007
Filed:
__________________________________________
Clerk
Justice Brian Morris delivered the Opinion of the Court.
¶1 Dieter Scholz (Scholz) appeals from orders of the Twentieth Judicial District, Sanders
County, denying his motion to reconsider a protective order and denying his motion to
dismiss the protective order. We affirm in part and reverse and remand in part.
¶2 Scholz presents the following issues for review:
¶3 Whether the District Court properly exercised jurisdiction over the protective order.
¶4 Whether the District Court properly denied Scholz’s unanswered motions to
reconsider the protective order and to dismiss the protective order.
¶5 Whether the District Court properly relied on its determinations from the June 20,
2006, hearing to deny Scholz’s motion to dismiss the protective order.
¶6 Whether the District Court correctly included in the protective order terms
contradictory to the hearing record.
PROCEDURAL AND FACTUAL BACKGROUND
¶7 Scholz operates an ice-making business on 84 acres at the edge of the Cabinet
Mountain Wilderness area near Noxon, Montana. Improvements on the property include a
residence, an ice house, hydro-electric plant, and out-buildings. Jill Lundstrom (Lundstrom)
acquired an interest in the real property in 2004. Scholz and Lundstrom married soon after
she acquired the interest.
¶8 This dispute began in Justice Court when Lundstrom petitioned for a temporary
protective order against Scholz on February 20, 2006. Lundstrom alleged that Scholz had
shoved her against the bathroom wall during an argument. Lundstrom claimed that she
broke her fingernail during the argument. The State charged Scholz with partner or family
member assault in connection with Lundstrom’s allegations in a separate Justice Court
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proceeding. Scholz did not appear at the protective order hearing on March 13, 2006. The
Justice Court issued a permanent protective order in his absence “effective until further order
of the court.” The Justice Court amended the protective order on March 20, 2006, to allow
Scholz to enter the ice plant upon advance telephone notice to Lundstrom.
¶9 Lundstrom filed a petition to dissolve the marriage in the District Court on March 8,
2006. Scholz separately petitioned the District Court, on May 30, 2006, under the
dissolution’s cause number, to dismiss or modify the Justice Court’s protective order.
Scholz argued that he could not conduct his ice business effectively under the existing
protective order. Scholz contended that the overly restrictive protective order unfairly
subjected him to Lundstrom’s whim regarding whether she chose to take his telephone calls
giving her advance notice of his intent to enter the property.
¶10 The District Court held a hearing on Scholz’s petition on June 20, 2006. Neither
party offered new evidence or testimony. The parties’ counsel and the court simply
discussed the scope of the protective order. The District Court indicated that it was
unwilling to modify the existing protective order to the extent that it would concern Scholz’s
pending criminal charge in Justice Court. The District Court agreed, however, to modify
several terms of the protective order to allow Scholz more liberal access to his business
properties. The District Court requested both parties to submit proposed orders
memorializing the terms agreed upon during the hearing. On August 10, 2006, the court
signed the order that Lundstrom’s counsel had prepared.
¶11 Scholz filed a motion to reconsider. Scholz alleged that the June 20, 2006, order
improperly included terms contradictory to those agreed upon in the hearing. Scholz also
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later filed in District Court a motion to dismiss the protective order. Scholz alleged in the
motion that the court had denied him the right to a hearing on the protective order’s validity
pursuant to § 40-15-202(1), MCA. Lundstrom did not answer either motion. The District
Court denied both motions. The court determined that those issues were “specifically
considered at the hearing on June 20, 2006 and addressed in the Court’s Order Regarding
Respondent’s Motion for Temporary Orders filed August 10, 2006.” Scholz appeals.
STANDARD OF REVIEW
¶12 Whether a court has subject matter jurisdiction presents a question of law. We review
a district court’s conclusions of law to determine whether they are correct. Boe v. Court
Adm’r for the Mon. Jud. Branch, 2007 MT 7, ¶ 5, 335 Mont. 228, ¶ 5, 150 P.3d 927, ¶ 5. We
review for abuse of discretion a district court’s decision to continue, amend, or make
permanent an order of protection. Edelen v. Bonamarte, 2007 MT 138, ¶ 6, 337 Mont. 407, ¶
6, 162 P.3d 847, ¶ 6.
DISCUSSION
¶13 Whether the District Court properly exercised jurisdiction over the protective order.
¶14 District courts and justice courts have concurrent jurisdiction to hear and issue
protective orders. Section 40-15-301(1), MCA. Section 40-15-301(3), MCA, provides that
either party to a protective order “may appeal or remove the matter to the district court”
before or after a hearing on the protective order. A district court may not take jurisdiction of
a justice court case on its own initiative, however, under the plain language of § 40-15-301
(1)-(3), MCA.
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¶15 Scholz contends that the Justice Court retained jurisdiction over the protective order
until September 6, 2006, when Lundstrom formally removed the matter to the District Court.
Scholz argues that the District Court impermissibly exercised jurisdiction of its own
initiative over the protective order when it considered Scholz’s May 30, 2006, motion to
dismiss or modify the order. Scholz relies on the fact that neither party formally had
removed or appealed the protective order, as required by § 40-15-301(3), MCA, to bestow
jurisdiction on the District Court, until September 8, 2006.
¶16 The District Court did not consider the protective order on its own initiative. The
District Court acted upon Scholz’s petition. Scholz effectively availed himself of the District
Court’s jurisdiction when he petitioned the court. His petition operated like an appeal to the
District Court to review the Justice Court’s order. Section 40-15-301(3), MCA, provides for
this appeal and the statute confers jurisdiction on the District Court to hear the matter.
¶17 We long have held that “[p]arties voluntarily submitting a controversy to a court
having jurisdiction of the subject-matter cannot question its authority.” Deich v. Deich, 136
Mont. 566, 576, 323 P.2d 35, 41 (1958) (citing Hall v. Hall, 70 Mont. 460, 226 P. 469(1924). Scholz attempts to distinguish this case from Deich on the basis that the District
Court failed to take a firm position on its jurisdiction to rule on the protective order. Scholz
cites the court’s professed unwillingness to stray too far from the Justice Court’s original
modified protective order at the June 20, 2006, hearing as an example of the court’s failure to
accept fully its jurisdiction.
¶18 The record reveals, however, that the District Court did not waver in exercising its
jurisdictional authority over the protective order at the June 20, 2006, hearing. Instead, it
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only declined to address issues concerning the partner or family member assault charge
against Scholz pending in the Justice Court. The District Court fully accepted jurisdictional
authority over the order when it considered and ruled on Scholz’s petition to modify or
dismiss the protective order. The court also fully accepted jurisdictional authority when it
considered Scholz’s two subsequent attempts to avail himself of that court’s jurisdiction:
Scholz’s August, 25, 2006, motion to reconsider, and his September 18, 2006, motion to
dismiss. Scholz cannot now challenge the District Court’s jurisdiction in this matter.
¶19 Whether the District Court properly denied Scholz’s unanswered motions to
reconsider the protective order and to dismiss the protective order.
¶20 The District Court denied Scholz’s August 25, 2006, motion to reconsider,
notwithstanding Lundstrom’s failure to file an answer brief within ten days of Scholz’s
supporting brief as required by Montana Uniform District Court Rule 2. The District Court
also denied Scholz’s September 18, 2006, motion to dismiss without allowing Lundstrom’s
ten day response window to expire. The District Court denied both motions on the grounds
that the court previously had decided the issues at the June 20, 2006, hearing regarding
Scholz’s motion to modify the protective order.
¶21 Scholz argues first that the District Court could not base its denial of both motions on
the June 20, 2006, hearing in light of the District Court’s lack of jurisdiction over the
protective order at that hearing. We have held above that the District Court properly
exercised jurisdiction over the protective order beginning with Scholz’s May 30, 2006,
petition to modify or dismiss the protective order. ¶ 18. Scholz’s jurisdictional claim fails.
¶22 Scholz next argues that under Rule 2 of the Montana Uniform District Court Rules the
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District Court should have granted his August 25, 2006, motion to reconsider the protective
order and his September 18, 2006, motion to dismiss when Lundstrom failed to file answer
briefs. Rule 2(a) mandates adverse parties to file briefs in support of their answers. Rule
2(b) provides that an adverse party’s failure to file an answer brief within ten days of the
moving party’s brief “shall be deemed an admission that the motion is well taken.”
¶23 Montana Uniform District Court Rule 2 does not require the district court, however, to
grant an unanswered motion. State v. Pizzola, 283 Mont. 522, 524-25, 942 P.2d 709, 711
(1997); State v. Loh, 275 Mont. 460, 466, 914 P.2d 592, 596 (1996); Maberry v. Gueths, 238
Mont. 304, 308-09, 777 P.2d 1285, 1289 (1989). We stated in Maberry, that “the rule does
not remove the discretion of the District Court to grant or deny unanswered motions as it
sees fit.” Maberry, 283 Mont. at 309, 777 P.2d at 1289.
¶24 In Maberry, the adverse party did not file answer briefs in response to a motion to
amend findings, motion for new trial, and a motion to alter the judgment until after the ten-
day period had elapsed. We held that the district court properly exercised its discretion to
deny the motions despite Rule 2. Maberry, 238 Mont. at 308-09, 777 P.2d at 1288-89. The
district court in Loh denied the defendant’s motion to suppress even though the State did not
answer until after the ten-day period. We again held that the district court properly exercised
its discretion. Loh, 275 Mont. at 465-67, 914 P.2d at 595-96.
¶25 The District Court denied Scholz’s motions even though Lundstrom filed no response,
timely or otherwise. The District Court determined, however, that both parties already had
argued the issues fully and the court had addressed them at the June 20, 2006, hearing. We
determine that it was within the District Court’s discretion to deny Scholz’s motions based
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on these circumstances notwithstanding Lundstrom’s failure to file answer briefs. We now
address whether the District Court properly exercised that discretion.
¶26 Whether the District Court properly relied on its determinations from the June 20,
2006, hearing to deny Scholz’s motion to dismiss the protective order.
¶27 Scholz argues that the District Court improperly relied on its determinations from the
June 20, 2006, hearing to deny his motion to dismiss the protective order. He contends that
he raised issues at the hearing different from those that he raised in the motion. Scholz
argued in the motion to dismiss that the District Court’s failure to hold a hearing, as required
by § 40-15-202(1), MCA, to determine whether the protective order should remain in place
invalidated the protective order. Scholz did not advance this same argument at the June 20,
2006, hearing. Scholz contends, therefore, that the District Court erred when it did not
review the motion to dismiss on its merits.
¶28 We agree that the District Court failed to address Scholz’s sole argument in his
motion to dismiss – an argument the court had not yet had an opportunity to address. If it
had addressed Scholz’s argument, however, the District Court likely would have noted that
the Justice Court held a hearing on the temporary protective order on March 13, 2006.
Scholz failed to appear at that hearing. Nothing in § 40-15-202(1), MCA, required the
District Court to provide Scholz with a second opportunity to challenge the validity of the
order of protection issued by the Justice Court. He could not have successfully dismissed the
protective order on those grounds.
¶29 The District Court may have failed to address the substance of Scholz’s motion to
dismiss regarding the claimed lack of a hearing. The District Court nevertheless reached the
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correct conclusion. We will uphold a district court that has reached the right result even if
for a different reason. Solid Waste Cont. v. Dep. of Pub. Ser. Reg., 2007 MT 154, ¶ 29, 338
Mont 1, ¶ 29, 161 P.3d 837, ¶ 29. The lack of a second hearing did not invalidate the
protective order. The District Court did not abuse its discretion when it denied Scholz’s
motion to dismiss.
¶30 Whether the District Court correctly included in the protective order terms
contradictory to the hearing record.
¶31 Scholz argues that the District Court improperly included in the August 10, 2006,
protective order, terms either contradictory to those discussed at the June 20, 2006, hearing
on the matter, or outside the scope of the hearing. In In re C.S.F., 232 Mont. 204, 209, 755
P.2d 578, 582 (1988), we held that “the rule in Montana as well as in other jurisdictions
seems to be well settled that a judgment must be based on a verdict or findings of the court
and must be within the issues presented to the court.” (Internal citations and quotation marks
omitted).
¶32 Counsel for C.S.F.’s mother and father discussed the terms of a parenting plan on the
record during a hearing to consider parental visitation rights. The district court adopted the
mother’s proposed plan that included several paragraphs relating to the father’s written
notice requirements for scheduling conflicts. The pleadings and hearing transcript addressed
only accumulated visitation, not scheduling conflicts. In re C.S.F., 232 Mont. at 205-07, 755
P.2d at 579-80. We inspected the hearing transcript and determined that the court’s order
was “a substantial departure in its provisions from the order requested by the District Court
at the conclusion of its hearing . . . .” In re C.S.F., 232 Mont. at 208, 755 P.2d at 581. We
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held invalid portions of the order that deviated from the issues presented at the hearing
because “[a] district court does not have jurisdiction to grant relief outside of the issues
presented . . . unless the parties stipulate that the other questions be considered . . . .” In re
C.S.F., 232 Mont. at 209, 755 P.2d at 582 (internal citations omitted).
¶33 The District Court adopted verbatim Lundstrom’s draft of the order. The order
includes significant deviations from the issues covered at the June 20, 2006, hearing, as
Scholz alleges. The District Court agreed at the hearing that Scholz would have unlimited
access to the ice house upon telephonic notice to Lundstrom. The order provided that
Scholz’s access to the ice house would be conditional. The order required Scholz to submit
written notice by mail of his schedule to Lundstrom one week in advance of any visits. The
court did not specify at the hearing how, if at all, Lundstrom could consent. The order
required that Scholz receive Lundstrom’s written consent before he could access the ice
house at unscheduled times. The court also agreed at the hearing that Lundstrom could not
obstruct the driveway to deny Scholz appropriate access to the ice house. The order
unconditionally prohibited Scholz from entering, regardless of consent issues, if Lundstrom
obstructed the driveway. Finally, the court did not discuss how Scholz could notify
Lundstrom of his need to access the ice house in case of emergency – certainly because the
parties agreed at the hearing to telephonic access in any event. The order provided only for
emergency telephonic notice procedures and narrowly defined what circumstances would
constitute an emergency.
¶34 The District Court lacked the authority to order terms either contradictory to matters
discussed at the hearing or matters completely absent at the hearing. In re C.S.F., 232 Mont.
10at 209, 755 P.2d at 582. We recognize, however, that Scholz’s proposed order included
many of the same contradictory terms as Lundstrom’s. Scholz’s proposed order provided for
weekly written notice, although it allowed for telephonic notice as to unforeseen changes.
Scholz’s proposed order also discussed emergency notice, although it defined emergency
much more broadly. Scholz’s order did not, however, require advance written consent,
consistent with the court’s determination at the hearing.
¶35 Our decision in C.S.F. provides that a district court may not “grant relief outside of
the issues presented . . . unless the parties stipulate that the other questions be considered . . .
.” In re C.S.F., 232 Mont. at 209, 755 P.2d at 582 (emphasis added). We determine that
Scholz effectively stipulated that the District Court could order specific terms when he
included those terms in his own proposed order. Such stipulation creates space in which the
District Court can deviate from the issues that the parties originally presented. The space
created should be no broader, however, than the specific term or issue to which the parties
stipulated.
¶36 The parties stipulated to written notice of a weekly schedule for regular access to the
ice house in their respective proposed orders. The District Court properly included this term
in the protective order. The parties also stipulated to emergency access procedures. The
District properly included this provision in the order. The District Court should not have
required written notice as the exclusive means of access to the ice house, however, because
the parties did not stipulate to it. The parties did not stipulate to the requirement of
Lundstrom’s written consent. The parties did not discuss Lundstrom’s consent at the
hearing. The District Court improperly included the requirement of Lundstrom’s consent.
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The parties did not stipulate to Lundstrom’s right to restrict unconditionally Scholz’s access
by obstructing the driveway. Once again, the District Court improperly included this term in
the order. The District Court should have deviated from its original determination at the
hearing to no greater extent than the parties actually agreed by stipulating.
¶37 We affirm in part and remand to the District Court for further proceedings consistent
with this Opinion.
/S/ BRIAN MORRIS
We Concur:
/S/ KARLA M. GRAY
/S/ JAMES C. NELSON
/S/ JIM RICE
/S/ JOHN WARNER
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