DA 14-0550

IN THE SUPREME COURT OF THE STATE OF MONTANA

2015 MT 153N

STACY LEAR,

 Petitioner and Appellee,

 v.

CARRIE A. JAMROGOWICZ,

 Respondent and Appellant.

APPEAL FROM: District Court of the Fourth Judicial District,

In and For the County of Missoula, Cause No. DV-13-642

Honorable Ed McLean, Presiding Judge

COUNSEL OF RECORD:

For Appellant:

Quentin M. Rhoades, Alison Garab, STR & Associates, P.C.; Missoula,

Montana

For Appellee:

Joshua S. Van de Wetering, Van de Wetering Law Offices, P.C.;

Missoula, Montana

Submitted on Briefs: April 15, 2015

 Decided: June 2, 2015

Filed:

__________________________________________

Clerk

June 2 2015

Case Number: DA 14-0550
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Justice James Jeremiah Shea 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Rules, this case is decided by unpublished opinion and shall not be cited and does not 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 Carrie A. Jamrogowicz appeals the Fourth Judicial District Court’s order denying 

her motion to terminate a permanent order of protection that prohibits her from having 

contact with Stacy Lear. We affirm.

¶3 The issues on appeal are (1) whether the District Court erred as a matter of law 

when it refused to dismiss the order of protection based on a General Release executed by 

Lear, and (2) whether the firearms restriction in the order of protection infringes upon 

Jamrogowicz’s constitutional right to bear arms.

¶4 In July of 2012, the State of Montana charged Jamrogowicz with misdemeanor 

stalking of Lear. Lear petitioned for an order of protection, and the District Court entered 

a Permanent Order of Protection on August 12, 2013. Then, in February of 2014, 

Jamrogowicz pled nolo contendere to the stalking charge. In accord with the plea 

agreement, the court deferred imposition of sentence for 90 days, with conditions 

including one that Lear execute a release of all civil claims against Jamrogowicz. Lear 

executed that release, and Jamrogowicz successfully completed the 90-day deferral 

period in May of 2014.
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¶5 The District Court then allowed Jamrogowicz to withdraw her plea and dismissed 

the criminal case. At the same time, Jamrogowicz moved to terminate the August 2013 

order of protection, based on her compliance with the conditions of the release executed 

by Lear. The District Court denied the motion to terminate the order of protection, and 

Jamrogowicz appeals.

¶6 On appeal, Jamrogowicz argues the District Court erred in failing to terminate the 

order of protection, which she contends was included in Lear’s release of “any and all 

claims.” She maintains that, as a matter of contract law, that release included the order of 

protection. Jamrogowicz further contends the District Court had no factual basis to 

refuse to dissolve the order of protection, and that good cause does not exist to support a 

permanent order of protection. She points out that, in entering the permanent order of 

protection, the District Court made no finding that she has a history of violence or of 

commission of any offense or that there is a demonstrated need to avoid further harm, as 

is required for a permanent order of protection under § 40-15-204(1), MCA.

¶7 Jamrogowicz’s contract law arguments are not persuasive. The permanent order 

of protection is not a claim by Lear, but a preexisting court order. Section 40-15-204(5), 

MCA, provides that an order of protection “may be terminated upon the petitioner’s 

request that the order be dismissed.” In this case, Lear, not Jamrogowicz, was the 

petitioner. Therefore, the District Court did not err in ruling it had no statutory authority 

to terminate the order of protection at Jamrogowicz’s request. Further, even if, as 

Jamrogowicz argues, Lear’s execution of the release functioned as her request that the 
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order of protection be released, the statute says the court “may” terminate the permanent 

order of protection upon petitioner’s request. The District Court retained discretion.

¶8 As to Jamrogowicz’s claim that there was an insufficient basis for the permanent 

order of protection, Jamrogowicz failed to appeal from that order within the 30 days 

allowed for such an appeal. See M. R. App. P. 4(5)(a)(i); Marriage of Lockhead, 2013 

MT 368, 373 Mont. 120, 314 P.3d 915. She waived this claim by her failure to timely 

appeal.

¶9 Jamrogowicz additionally argues on appeal that a provision in the permanent order 

of protection that prohibits her from possessing firearms while she is within the state of 

Montana violates her constitutional right to bear arms. Although she raised a similar 

argument in the District Court before that court entered the permanent order of 

protection, Jamrogowicz did not raise this argument in relation to the order now on 

appeal, addressing her motion to dismiss the permanent order of protection. We do not 

generally address an issue raised for the first time on appeal, and Jamrogowicz has given 

us no reason to do so here. See Becker v. Rosebud Operating Servs., 2008 MT 285, ¶ 17, 

345 Mont. 368, 191 P.3d 435.

¶10 We have determined to decide this case pursuant to Section I, Paragraph 3(c) of 

our Internal Operating Rules, which provides for unpublished opinions. In the opinion of 

the Court, this case presents questions controlled by settled law or by the clear 

application of applicable standards of review. The District Court’s interpretation and 

application of the law were correct. And, on this record, the court’s denial of 
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Jamrogowicz’s motion to dismiss the permanent order of protection was not an abuse of 

discretion.

/S/ JAMES JEREMIAH SHEA

We Concur: 

/S/ MIKE McGRATH

/S/ LAURIE McKINNON

/S/ BETH BAKER

/S/ PATRICIA COTTER