Masse v. Richardson

Majority Laurie McKinnon

10/29/2024 DA 24-0270 Case Number: DA 24-0270 IN THE SUPREME COURT OF THE STATE OF MONTANA 2024 MT 252N MAKAYLA CHERISE-DAWN MASSE, Petitioner and Appellee, v. BRAD RAE RICHARDSON, Respondent and Appellant. APPEAL FROM: District Court of the First Judicial District, In and For the County of Lewis and Clark, Cause No. ADR-2024-180 Honorable Mike Menahan, Presiding Judge COUNSEL OF RECORD: For Appellant: Brad Richardson, Self-Represented, Helena, Montana For Appellee: Michelle H. Vanisko, Vanisko Law, PLLC, Helena, Montana Submitted on Briefs: October 2, 2024 Decided: October 29, 2024 Filed: __________________________________________ Clerk  Justice Laurie McKinnon 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 memorandum 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 Brad Richardson (Brad) appeals an Order of Protection entered in the First Judicial District Court, Lewis and Clark County. We affirm. ¶3 Brad and Makayla Masse (Makayla) have a torturous relationship with a long legal history. They share one child, L.M., born in 2019, and finalized a parenting plan in August 2020. In June 2023, Brad filed a Petition for Contempt and proposed Amended Parenting Plan. He attempted to submit evidence which was immediately stricken and sealed by the District Court because the exhibits were “not aimed at any legitimate matter of dispute in a parenting action; rather, they instead appear[ed] to be a crude attempt at character assassination.” Brad thereafter moved to substitute the judge, who relinquished jurisdiction. A new judge accepted jurisdiction. A few days later, Makayla moved to exclude evidence predating the original parenting plan, and the District Court granted the motion. ¶4 In September 2023, while the reopened parenting plan matter was pending, Makayla petitioned for a temporary order of protection in response to an email Brad sent to Makayla’s attorney. The email stated in relevant part, “Hey you know how in Pakistan 2  they bury women up to their necks and the community gathers around and throws rocks at them. Well now I know why. Ok, I take that back. However . . . .” The District Court issued a temporary restraining order and set a hearing for October. At the October hearing, both parties stipulated to a mutual no contact order to remain in effect until three months after the parenting plan matter was resolved. ¶5 But Brad did not adhere to the no contact order. Instead, he continued to send frequent harassing emails to Makayla’s attorney, directly and indirectly threatening violence and wishing death towards both Makayla and her attorney. Makayla successfully sought a Temporary Order of Protection; the order became permanent following a hearing in April 2024 and remains in effect through April 2025. Brad appeals from this Permanent Order of Protection. Brad seems to argue that had the District Court allowed his pre-2020 evidence, it would not have found good cause to grant the order and thus abused its discretion by doing so. ¶6 We review a district court’s decision regarding an order of protection for abuse of discretion. Schiller v. Schiller, 2002 MT 103, ¶ 24, 309 Mont. 431, 47 P.3d 816. The question under this standard is not whether we would have reached the same decision as the district court, but whether the district court acted arbitrarily, without conscientious judgment, or exceeded the bounds of reason. Lockhead v. Lockhead, 2013 MT 368, ¶ 12, 373 Mont. 120, 314 P.3d 915. ¶7 Section 40-15-102(1)(a), MCA, provides that a person may petition for an order of protection if they are “in reasonable apprehension of bodily injury by the petitioner’s 3  partner or family member” as defined by statute. “The statutory scheme contemplates that the petition will succeed if the petitioner establishes good cause for the entry of an order, and will fail if she does not.” Lear v. Jamrogowicz, 2013 MT 147, ¶ 26, 370 Mont. 320, 303 P.3d 790. Once the initial temporary order is in effect, a district court may continue, amend, or make the order permanent upon a showing of good cause. Schiller, ¶ 25; § 40-15-202(1), MCA. ¶8 Brad asserts that his pre-2020 evidence should have been considered because it is relevant under M. R. Evid. 401 and admissible as character evidence for the purpose of showing motive, common scheme, and absence of mistake or accident under M. R. Evid. 404(b). Brad is incorrect. Foundationally, the evidence he sought to introduce—and the “evidence” his briefing in this appeal extensively references—is not relevant to determining whether there was good cause to grant the Order of Protection. The dispositive facts in Makayla’s petition relied solely on communication available in the record that occurred after 2020. Whatever pre-2020 history exists between the parties would not have “any tendency to make the existence of any fact that is of consequence to the determination of the action more probable or less probable than it would be without the evidence.” M. R. Evid. 401. ¶9 Even if Brad’s evidence of Makayla’s prior behavior were relevant, it would be barred as inadmissible character evidence. Brad cites M. R. Evid. 404(b), alleging that Makayla’s behavior in previous unrelated legal disputes between the parties is part of a common scheme and shows motive “[t]o destroy my parental rights and to satisfy her 4  delusional beliefs.” He also seems to impliedly reference M. R. Evid. 404(a)(2), framing himself as a repeated victim of Makayla’s machinations and alleged assaults. Neither argument is comprehensible or colorable. Indeed, the purpose of his evidence would be to “prove action in conformity therewith on a particular occasion”—the type of character evidence expressly proscribed by the Rule. ¶10 As the District Court stated in the hearing, “We’re not talking about the past. We’re talking about these emails that you sent to [Makayla] after our last hearing, and that’s the basis.” Even so, the District Court patiently entertained Brad’s testimony as to a number of past incidences condemning Makayla’s character. Based solely on the emails from Brad to Makayla’s attorney attached to Makayla’s petition, there was extensive support for the District Court to find good cause for the Order of Protection. ¶11 We have determined to decide this case pursuant to Section I, Paragraph 3(c) of our Internal Operating Rules, which provides for memorandum opinions. This appeal presents no constitutional issues, no issues of first impression, and does not establish new precedent or modify existing precedent. ¶12 Affirmed. /S/ LAURIE McKINNON We Concur: /S/ JAMES JEREMIAH SHEA /S/ BETH BAKER /S/ INGRID GUSTAFSON /S/ JIM RICE 5