DA 09-0243

IN THE SUPREME COURT OF THE STATE OF MONTANA

2009 MT 403

MICHELLE KULSTAD,

Plaintiff and Appellee,

v.

BARBARA L. MANIACI,

Defendant and Appellant.

APPEAL FROM: District Court of the Fourth Judicial District,

In and For the County of Missoula, Cause No. DR-2007-034

Honorable Ed McLean, Presiding Judge

COUNSEL OF RECORD:

For Appellant:

Linda Osorio St. Peter, St. Peter Law Offices, P.C., Missoula, Montana

Austin R. Nimocks, Alliance Defense Fund, Scottsdale, Arizona

For Appellee:

Elizabeth L. Griffing, ACLU of Montana Foundation, Missoula, Montana

Susan G. Ridgeway, Susan G. Ridgeway, PLLC, Missoula, Montana

Kevin H. Lewis, Sparer Law Group, San Francisco, California

Submitted on Briefs: November 4, 2009

Decided: November 24, 2009

Filed:

__________________________________________

Clerk

November 25 2009
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Justice Patricia O. Cotter delivered the Opinion of the Court.

¶1 Barbara Maniaci (Maniaci) and Michelle Kulstad (Kulstad) were committed

domestic partners from 1996 until January 2007 when Kulstad petitioned to dissolve the

parties’ relationship, and to receive a parenting interest in the two children the couple had

adopted. The Fourth Judicial District Court awarded Kulstad a parental interest in the

children over Maniaci’s objections. Maniaci appealed this ruling and we affirmed.

Kulstad v. Maniaci, 2009 MT 326, 352 Mont. 513, ___ P.3d ___ (Kulstad I). While

Kulstad I was on appeal, the District Court, in response to a motion by the guardian ad

litem (GAL), entered a Temporary Protective Order (TPO) regarding certain treatment

records of the children. Maniaci petitioned this Court for a writ of supervisory control,

seeking to reverse the TPO. We granted the petition in part and remanded the matter to

the District Court, ordering that Maniaci be allowed to respond to the GAL’s request for a

TPO. Upon remand, Maniaci moved for substitution of Judge Ed McLean who had

presided over the case since its origin in 2007. Judge McLean denied Maniaci’s motion.

Maniaci appeals this denial. We affirm.

ISSUE

¶2 The dispositive issue on appeal is whether the District Court erred in denying

Maniaci’s Motion for Substitution of Judge.

FACTUAL AND PROCEDURAL BACKGROUND

¶3 In Kulstad I, we set forth the relevant factual background of this case. For

purposes of this Opinion, we present the few additional necessary facts. In January 2009,

while the main appeal in Kulstad I was pending (Notice of Appeal was filed October 2,
3

2008), the children’s GAL filed a report with the District Court, requesting a protective

order. The GAL asked that the therapy notes and work product relating to the children’s

therapy be protected and that these documents not be provided to the parties. The GAL

believed that such protection would provide the children with “a safe place in which to

express and explore issues.” On January 30, the District Court granted the motion and

entered a TPO. Maniaci had not yet responded to the GAL’s motion at the time the court

granted it.

¶4 On March 5, 2009, Maniaci petitioned this Court for a writ of supervisory control.

She claimed that (1) the District Court lacked jurisdiction to enter the TPO after the

appeal had been filed; (2) the court violated her rights to due process by ordering the

sequestration of the children’s medical records; and (3) the TPO itself violated her

fundamental rights as a parent. She asked that we retroactively vacate the TPO and

instruct the District Court to refrain from entering any further orders while the appeal was

pending. On April 15, 2009, we issued an order granting Maniaci’s petition in part and

remanding the matter to the District Court with instructions that Maniaci be given the

opportunity to respond to the GAL’s motion for a protective order before the court further

ruled on the request.

¶5 Immediately upon remand, on April 20, Maniaci moved for substitution of the

judge in the case. Judge Ed McLean had presided over the case since Kulstad moved to

dissolve the relationship in January 2007. On April 27, the District Court denied

Maniaci’s motion. On April 29, Maniaci appealed the District Court’s denial.

STANDARD OF REVIEW
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¶6 A district court’s interpretation and application of a statute is a conclusion of law.

We review a district court’s conclusions of law for correctness. Williams v. Schwager,

2002 MT 107, ¶ 36, 309 Mont. 455, 47 P.3d 839.

DISCUSSION

¶7 Did the District Court err by denying Maniaci’s Motion for Substitution of Judge?

¶8 Whether a party is entitled to substitution of a judge is determined by statute.

Section 3-1-804(1)(g), MCA (2007), provides:

When a new trial is ordered by the district court, each adverse party shall

thereupon be entitled to one motion for substitution of judge in the manner

provided herein. When on appeal the judgment or order appealed from is

reversed or modified and the cause is remanded to the district court for a

new trial, or when a summary judgment or judgment of dismissal is

reversed and the cause remanded, each adverse party shall thereupon be

entitled to one motion for substitution of judge in the manner provided

herein. Such motion must be filed, with the required filing fee in civil

cases, within twenty (20) days after a new trial has been ordered by the

district court or after the remittitur from the Supreme Court has been filed

with the district court. No other right of further substitution shall arise in

cases remanded by the supreme court. In criminal cases, no further right of

substitution shall arise when the cause is remanded for resentencing.

(Emphasis added.)

¶9 As determined by Judge McLean, this statute does not provide authorization for

substitution of a judge in this case. Upon issuing our ruling on Maniaci’s writ for

supervisory control, we remanded the case to the District Court with the limited

instruction that the court allow Maniaci to respond to the GAL’s motion for a protective

order before the District Court ruled on the motion. We did not remand the case for a

“new trial” nor was Maniaci’s petition for a writ an “appeal” of a judgment or order that

was reversed or modified. Moreover, it was not a summary judgment or judgment of
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dismissal that was reversed and remanded. As for the timing for filing a motion for

substitution of judge, again there was no new trial scheduled to trigger the 20-day filing

requirement nor was there a remittitur issued by this Court at the conclusion of an appeal.

¶10 It is well-established that when the language of a statute is clear and unambiguous,

the statute speaks for itself. We will not “insert what has been omitted . . . or omit what

has been inserted” nor will we resort to other means of interpretation. Hilands Golf Club

v. Ashmore, 2002 MT 8, ¶ 20, 308 Mont. 111, 39 P.3d 697; § 1-2-101, MCA. Section

3-1-804(1)(g), MCA (2007), simply does not apply here and the District Court did not err

in so concluding.

CONCLUSION

¶11 For the foregoing reasons, we affirm the District Court’s denial of Maniaci’s

Motion for Substitution of Judge.

/S/ PATRICIA O. COTTER

We concur:

/S/ MIKE McGRATH

/S/ JAMES C. NELSON

/S/ W. WILLIAM LEAPHART

/S/ JIM RICE