DA 08-0135

IN THE SUPREME COURT OF THE STATE OF MONTANA

2008 MT 406N

SHEILA MARIE CARTER,

 Petitioner and Appellee,

 v.

NICHOLAS SAMUEL WILLARD CARTER,

 Respondent and Appellant.

APPEAL FROM: District Court of the Twenty-First Judicial District,

In and For the County of Ravalli, Cause No. DV 08-038

Honorable Jeffrey H. Langton, Presiding Judge

COUNSEL OF RECORD:

For Appellant:

Sasha Kristine Brownlee, Attorney at Law; Hamilton, Montana

For Appellee:

Sheila Marie Carter, self-represented; Corvallis, Montana

Submitted on Briefs: November 13, 2008

 Decided: December 4, 2008 

Filed:

__________________________________________

Clerk

December 4 2008
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Justice Jim Rice delivered the Opinion of the Court.

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

Operating Rules, as amended in 2003, the following memorandum decision shall not be 

cited as precedent. It shall be filed as a public document with the Clerk of the Supreme 

Court and its case title, Supreme Court 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 Nicholas Samuel Carter (Nicholas) appeals from an order of protection entered by 

the Twenty-First Judicial District Court, Ravalli County. We affirm.

¶3 The sole issue on appeal is whether the District Court abused its discretion in 

denying Nicholas’s request to continue the hearing on the petition for the order of 

protection filed by Sheila Carter (Sheila).

¶4 The marriage of Nicholas and Sheila was dissolved by decree entered in Silver 

Bow County, Montana, in March of 2006. Following the dissolution, Nicholas moved to 

Tennessee and Sheila moved to Ravalli County, Montana. On January 25, 2008, Sheila 

petitioned the District Court for a temporary order of protection (TOP) against Nicholas 

on behalf of herself, their daughter and her two children from a prior relationship. The 

District Court issued a TOP that day pursuant to § 40-15-201(4), MCA. It also scheduled 

a hearing pursuant to § 40-15-202(1), MCA, for February 13, 2008, to determine whether 

the TOP should be continued, amended or made permanent. Nicholas was served with 

the TOP and notice of hearing in Tennessee on January 30, 2008.
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¶5 On February 12, 2008, the District Court received via facsimile machine (fax) a 

letter from Nicholas requesting the court to continue the hearing because he had been 

unable to make arrangements to travel to Montana in time, and he wished to arrange with 

his attorney to appear for the hearing by video conference. Sheila appeared, acting on her 

own behalf, at the scheduled hearing the following day; neither Nicholas nor an attorney 

on his behalf appeared. At the beginning of the hearing, the District Court stated it had 

received Nicholas’s faxed letter, but had received no actual motion for continuance and 

no attorney had communicated with the court on Nicholas’s behalf. The court proceeded 

with the hearing, at which Sheila testified and provided the court with various documents 

in support of her petition. The District Court subsequently ordered that the order of 

protection would remain in effect for one year from the date of the hearing. Nicholas 

appeals.

¶6 “We will not overturn a court’s decision to deny a motion for a continuance absent 

a showing of both an abuse of discretion and prejudice to the complaining party.” 

McCormack v. Andres, 2008 MT 182, ¶ 23, 343 Mont. 424, ¶ 23, 185 P.3d 973, ¶ 23. A 

hearing on a TOP may be continued for good cause at the request of either party to the 

action. Section 40-15-202(1), MCA. Furthermore, a motion to continue a trial or hearing 

on the basis of absence of evidence or witnesses “shall only be made upon affidavit 

showing the materiality of the evidence expected to be obtained and that due diligence 

has been used to procure it.” Section 25-4-501, MCA. Finally, “[a]n application to the 

court for an order shall be by motion which, unless made during a hearing or trial, shall 
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be made in writing, shall state with particularity the grounds therefor, and shall set forth 

the relief or order sought.” M. R. Civ. P. 7(b).

¶7 Nicholas contends the District Court abused its discretion in refusing to continue 

the hearing because his faxed written letter to the court was timely, was sufficient to 

constitute a motion for continuance and affidavit in support thereof, and showed good 

cause for the continuance because he had insufficient time in which to appear and present 

witnesses at the hearing. He further asserts that the court’s denial of his motion 

prejudiced him because he was unable to present evidence and testimony from himself 

and other witnesses. Therefore, Nicholas argues, the court’s denial of his motion should 

be reversed, the protection order vacated and the case remanded for a new hearing on 

Sheila’s petition at which both parties can be present.

¶8 Nicholas overlooks, however, a further procedural rule which supports the District 

Court’s denial of his motion for continuance. Montana Rules of Civil Procedure 5(e)—

entitled “Filing with the court defined”—provides that “[p]apers may be filed by 

facsimile or other electronic means, provided the original document must be filed with 

the clerk within five business days of the receipt of the facsimile copy or the filing will be 

treated as void.” Here, while Nicholas’s faxed letter was filed with the District Court, 

Nicholas did not timely—or ever—provide the Clerk of the District Court with the 

original letter. Consequently, under the procedural rules, Nicholas’s faxed motion to 

continue must be treated as void. The District Court did not abuse its discretion in 

determining Nicholas’s faxed letter did not constitute a proper motion for continuance.
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¶9 We have determined to decide this case pursuant to Section I, Paragraph 3(d) of 

our 1996 Internal Operating Rules, as amended in 2003, which provides for 

memorandum opinions. It is manifest on the face of the briefs and the record that the 

appeal is without merit because the issue is clearly controlled by Montana law which the 

District Court correctly interpreted and there was no abuse of judicial discretion.

¶10 Affirmed.

/S/ JIM RICE

We concur: 

/S/ JAMES C. NELSON

/S/ JOHN WARNER

/S/ W. WILLIAM LEAPHART

/S/ BRIAN MORRIS