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No. 00-033

IN THE SUPREME COURT OF THE STATE OF MONTANA

2000 MT 173N

JAMES DELOS HALDEMAN, 

Petitioner and Appellant,

v.

BLAZE MARIE ELLIOTT,

f/k/a BLAZE MARIE HALDEMAN,

Dissolution case Respondent.

THE HONORABLE THOMAS A. OLSON,

Respondent.

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APPEAL FROM: District Court of the Eighteenth Judicial District, 

In and for the County of Gallatin,

The Honorable Jeffrey M. Sherlock, Judge presiding.

COUNSEL OF RECORD:

For Appellant:

Dana C. Christian, Attorney at Law, Livingston, Montana

For Respondent:

Daniel J. Roth, Attorney at Law, Bozeman, Montana

(for The Honorable Thomas A. Olson)

Submitted on Briefs: April 27, 2000 

Decided: July 6, 2000 

Filed:

__________________________________________

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Clerk

Justice Karla M. Gray delivered the Opinion of the Court.

1. ¶Pursuant to Section I, Paragraph 3(c), Montana Supreme Court 1996 Internal 

Operating Rules, the following decision shall not be cited as precedent but shall be 

filed as a public document with the Clerk of the Supreme Court and shall be 

reported by case title, Supreme Court cause number, and result to the State Reporter 

Publishing Company and to West Group in its table of noncitable cases issued by 

this Court.

2. ¶Dana C. Christian (Christian), attorney at law, appeals from the Judgment entered 

against him, personally, for attorney fees and costs by the Eighteenth Judicial 

District Court, Gallatin County, the Honorable Jeffrey M. Sherlock presiding (Judge 

Sherlock or District Court), on its underlying Order denying Christian's motion for 

disqualification of the Honorable Thomas A. Olson (Judge Olson) and assessing 

sanctions in the form of attorney fees and costs. We reverse in part and remand, and 

we refer this case to this Court's Commission on Practice for consideration of 

Christian's conduct in the matters underlying this appeal.

3. ¶We address the following restated issues on appeal:

4. ¶1. Did the District Court abuse its discretion in awarding attorney fees and costs 

against Christian as a sanction for filing a motion to disqualify Judge Olson?

5. ¶2. Should Judge Olson be awarded attorney fees under Rule 32, M.R.App.P., as a 

sanction against Christian for bringing a frivolous appeal? 

BACKGROUND

1. ¶Christian filed a Verified Petition for Determination of Child Custody and Related 

Matters, on behalf of James Delos Haldeman (Haldeman), in the Eighteenth Judicial 

District Court, Gallatin County, on June 7, 1999. Summons was served on Blaze 

Marie Elliott, formerly known as Blaze Marie Haldeman, on June 8, 1999. Judge 

Olson held a hearing on June 14, 1999, and the parties stipulated to modify an 

Illinois decree to provide that their minor children would reside with Haldeman. On 

the same date, Judge Olson entered his Order approving the stipulation.

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2. ¶Two weeks later, Christian filed a Motion and Brief to Remove Judge for Cause 

pursuant to § 3-1-805, MCA, purportedly on Haldeman's behalf. No affidavit from 

Haldeman accompanied the motion. Instead, Christian filed his own affidavit 

observing that no negative rulings had been made against his client and, indeed, the 

only ruling in the case had been favorable to his client. Christian's affidavit stated 

that Judge Olson "has a disqualifying personal bias or prejudice . . . in this type of 

case where a father, and not the mother, has custody of minor children from a 

divorce." 

3. ¶Judge Sherlock was duly appointed to preside over the disqualification proceeding 

and an evidentiary hearing on Christian's motion to disqualify was held on August 

30, 1999. Christian presented a number of witnesses at the hearing who had been 

involved in past dissolution cases heard by Judge Olson, none of which was related 

to his client's case and none of which had been appealed. Christian conceded at the 

end of the hearing that he was not being paid for bringing the motion to disqualify. 

Christian's motive with regard to the motion was "to prove [Judge] Olson's bias 

[against men and fathers in domestic relations cases] to benefit those involved in 

future cases" and "for the good of future fathers going through a divorce." In various 

briefs and pleadings, Christian stated that Haldeman himself had "no personal 

conflict with the Judge. . . . This is a public conflict regarding the Judge's public 

judicial conduct having nothing to do personally with Mr. Haldeman, except as to 

his gender." 

4. ¶Both parties briefed various issues after the hearing, including Judge Olson's 

request for sanctions against Christian under § 3-1-805(1)(d), MCA, in the form of 

attorney fees and costs. On November 10, 1999, Judge Sherlock issued his Order 

denying Christian's motion for disqualification of Judge Olson "as being without 

any basis in law or fact." The Order also stated that sanctions were appropriate 

under both § 3-1-805(1)(d), MCA, and Rule 11, M.R.Civ.P., and that such sanctions 

would be imposed against Christian. It ordered Christian to pay attorney fees 

incurred by Judge Olson. A Notice of Entry of that Order was filed and served on 

November 10, 1999.

5. ¶ On the same date, Judge Olson's counsel filed a Motion for Entry of Judgment 

requesting judgment against Christian in the amount of $2,903.14, representing the 

ordered attorney fees and costs incurred, with interest thereon, together with an 

affidavit setting forth time and billing records totaling that amount. The District 

Court entered Judgment in the stated amount, with interest, on November 16, 1999, 

and a Notice of Entry of Judgment was filed and served on November 17, 1999. 

6. ¶Christian appeals from the imposition of attorney fees and costs as a sanction and 

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from the amount assessed. He does not appeal from Judge Sherlock's denial of his 

motion to disqualify Judge Olson.

DISCUSSION

1. ¶1. Did the District Court abuse its discretion in awarding attorney fees and costs 

against Christian as a sanction for filing a motion to disqualify Judge Olson?

2. ¶Section 3-1-805, MCA, authorizes a party to a court proceeding to file an "affidavit 

alleging facts showing personal bias or prejudice of the presiding judge. . . ." When 

such an affidavit is filed against a district court judge, the matter is referred to this 

Court and the Chief Justice assigns another district court judge to hear the matter. 

Section 3-1-805, MCA. It is undisputed in this case that Christian's affidavit was not 

that of a "party" alleging facts showing personal bias or prejudice of the presiding 

judge against the party. Indeed, as set forth above, Judge Olson had made only one 

ruling in the underlying matter and that order approved the stipulation of Haldeman 

and his former spouse to modify an Illinois decree to provide that the minor children 

would reside with Haldeman. Notwithstanding the absence of the required affidavit, 

however, the Chief Justice of this Court appointed Judge Sherlock to hear the 

motion to disqualify Judge Olson.

3. ¶The transcript of the hearing on Christian's motion, and other statements of record, 

are clear that Christian's motive in attempting to disqualify Judge Olson was 

premised on his own view that the judge was biased against men and fathers in 

domestic relations cases. Christian's client, Haldeman, was not involved in any way 

in the motion and could hardly have reasonably alleged bias or prejudice against 

Judge Olson, since the only ruling Judge Olson made in his case was to approve the 

parties' stipulation which favored Haldeman as the children's residential custodian. 

4. ¶Judge Sherlock denied the motion to disqualify. In doing so, he determined that 

Christian had failed to follow the procedures required by § 3-1-805, MCA. He also 

determined that the motion was totally without merit, observing that the purpose of 

the motion was "to advance whatever [Christian's] own agenda might be at the 

expense and reputation of a good and decent man[,]" and stating that Christian had 

"failed to support his contention that Judge Olson was prejudiced against Haldeman 

or men in general." As noted above, Christian does not appeal from the denial of the 

motion to disqualify. 

5. ¶Pursuant to the discretion vested by § 3-1-805(1)(d), MCA, Judge Sherlock 

assessed attorney fees and costs against Christian for filing the motion to disqualify 

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without any proper reason and as an attempt "to take an unconscionable advantage 

of Judge Olson to the advantage of Christian." He also determined sanctions were 

appropriate pursuant to Rule 11, M.R.Civ.P. Christian contends that Judge Sherlock 

erred in doing so without notice and a hearing and that, at such a hearing, he could 

successfully have withstood both the award of fees and costs and the amount 

awarded. 

6. ¶The record before us is clear that Christian had notice that Judge Olson was 

seeking sanctions in the form of attorney fees and costs. Judge Olson's attorney 

argued for sanctions against Christian personally at the close of the hearing and in 

two briefs and, indeed, Christian responded to that argument. Therefore, we reject 

Christian's argument that he did not have notice sanctions were being sought.

7. ¶ In addition, we reject Christian's argument that he was entitled to a hearing on the 

issue of whether sanctions were appropriate. We have held, as he contends, that 

district courts should give notice to show cause and hold a hearing before imposing 

Rule 11 sanctions in order to provide the party against whom sanctions are sought 

with due process and an opportunity to prepare its case against the imposition of 

sanctions. See Lindey's, Inc. v. Goodover (1994), 264 Mont. 489, 497, 872 P.2d 767, 

772. Under a solely Rule 11 situation, this is an appropriate and necessary safeguard 

because the usual bases of a request for sanctions under the Rule--that is, for 

example, whether the pleading was well grounded in fact, warranted by law and not 

interposed for an improper purpose--ordinarily will not have been litigated in the 

underlying proceeding. 

8. ¶In the case before us, however, Judge Sherlock's primary basis for the award of 

sanctions was § 3-1-805(1)(d), MCA. Moreover, given the purported factual basis of 

Christian's motion to disqualify and the transcript of the hearing on that motion, it is 

clear that all matters necessary and appropriate to resolving the question of whether 

sanctions should be awarded--as well as the parties' arguments about the imposition 

of sanctions--were before the District Court at the time of its Order.

9. ¶Judge Sherlock exercised his discretion under § 3-1-805(1)(d), MCA, which 

authorizes attorney fees and costs as sanctions against an attorney who files a 

proceeding to disqualify "without reasonable cause and thereby hinders, delays, or 

takes unconscionable advantage of any other party, or the court." In Judge 

Sherlock's view, "[t]here was no proper reason to bring this proceeding. Further, it 

appears that this whole proceeding has attempted to take an unconscionable 

advantage of Judge Olson to the advantage of Christian." The record before us 

supports Judge Sherlock's determinations and, Christian having advanced no 

persuasive argument to the contrary, we conclude Judge Sherlock did not abuse his 

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discretion in awarding sanctions under § 3-1-805(1)(d), MCA.

10. ¶There is merit, however, in Christian's argument that the District Court abused its 

discretion in entering Judgment awarding $2,903.14 in attorney fees and costs as a 

sanction without giving him an opportunity to challenge the amount of the fees and 

costs awarded. Christian does not challenge the timeliness of Judge Olson's 

counsel's Motion for Entry of Judgment in the amount of $2,903.14 and the related 

affidavit. Thus, we need not address the applicability of § 25-10-501, MCA, to the 

attorney fee portion of that motion. He does contend, however, that he was entitled 

to a reasonable opportunity to object to the amount stated in the motion, and we 

agree. 

11. ¶Assuming arguendo the applicability of § 25-10-502, MCA, Christian had five 

days after notice of the filing of the motion for judgment and affidavit within which 

to object by filing a motion to tax costs. Here, the Motion for Entry of Judgment 

was filed and served on November 10, 1999, and the District Court granted the 

motion and entered Judgment for the requested amount on November 16, 1999. The 

day on which the motion was filed is disregarded, as are the intervening Saturday 

and Sunday, since the time for objecting was less than 11 days. See Rule 6(a), M.R.

Civ.P. Under these time calculations and without any consideration of the 3-day 

"mail rule" provided in Rule 6(e), M.R.Civ.P., the fifth day on which Christian 

could have filed objections or a motion to tax costs would have been November 17, 

1999. Under this scenario, Christian did not receive the time to which he was 

entitled to challenge the amount of the fees and costs.

12. ¶Alternatively, assuming arguendo that the Uniform District Court Rules were 

applicable, Christian had an even longer time--10 days--to respond to the Motion for 

Entry of Judgment. See Rule 2(a), Unif.D.Ct.R. He did not receive the benefit of this 

time frame either.

13. ¶We conclude that the District Court abused its discretion in entering Judgment in 

the amount of $2,903.14, with interest, without providing Christian an adequate 

opportunity to challenge the amount requested. As a result, it is necessary to remand 

this case for further proceedings on the amount of attorney fees and costs awarded.

14. ¶2. Should Judge Olson be awarded attorney fees under Rule 32, M.R.App.P., as a 

sanction against Christian for bringing a frivolous appeal?

15. ¶Judge Olson seeks damages pursuant to Rule 32, M.R.App.P., for having to defend 

against an appeal "taken without substantial or reasonable grounds[.]" Given our 

determination that this case must be remanded for further proceedings on the 

amount of the attorney fees and costs awarded, we conclude that Rule 32 is 

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inapplicable here and decline to award damages thereunder.

16. ¶Reversed in part and remanded to the District Court, and referred to this Court's 

Commission on Practice.

/S/ KARLA M. GRAY

We concur:

/S/ WILLIAM E. HUNT, SR.

/S/ JIM REGNIER 

/S/ W. WILLIAM LEAPHART

/S/ TERRY N. TRIEWEILER 

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