DA 10-0376

IN THE SUPREME COURT OF THE STATE OF MONTANA

2011 MT 31N

CHRIS KORTLANDER,

 Plaintiff and Appellee,

 v.

ROBERT WILLIAM NIGHTENGALE,

 Defendant and Appellant.

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

In and For the County of Big Horn, Cause No. DV 03-04

Honorable Blair Jones, Presiding Judge

COUNSEL OF RECORD:

For Appellant:

Jeffrey G. Michael, Attorney at Law, Billings, Montana

For Appellee:

James L. Vogel, Attorney at Law, Hardin, Montana

Submitted on Briefs: January 26, 2011

 Decided: February 23, 2011

Filed:

__________________________________________

Clerk

February 23 2011
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Justice Patricia O. Cotter delivered the Opinion of the Court. 

¶1 Pursuant to Section 1, Paragraph 3(d), 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 Chris Kortlander and Robert Nightengale have been battling one another in the 

courts since 2002 stemming from alleged acts of harassment by Nightengale. The present 

appeal was filed by Nightengale challenging several rulings issued by the Twenty-Second 

Judicial District Court. We affirm. 

FACTUAL AND PROCEDURAL BACKGROUND

¶3 In December 2002, the Justice Court in Big Horn County issued a protective order

against Robert Nightengale mandating, among other things, that he stop harassing 

Kortlander. In January 2003, Nightengale appealed the protective order to the 

Twenty-Second Judicial District Court in Big Horn County. In March 2003, after a 

hearing, the District Court restrained Nightengale from harassing, threatening, defaming 

and contacting Kortlander by any means and ordered him to stay away from Kortlander’s 

property. In September 2004, Kortlander moved to have Nightengale held in contempt of 

this order. A hearing was commenced in November 2004 but was continued by the 

District Court without an immediate ruling on the merits raised in the motion. 

¶4 The continued hearing had not yet occurred when, in September 2007, Kortlander 

moved again for an order holding Nightengale in contempt based on certain conduct by 

Nightengale between 2005 and September 2007. The court held a hearing on December 
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4, 2007, at the conclusion of which it held Nightengale in civil contempt for violating the 

2003 temporary restraining order (TRO) by continued harassment, defamation, and 

threatening conduct. The court ordered Nightengale to pay a $350 fine as well as 

Kortlander’s attorney fees and costs associated with this contempt proceeding. The 

District Court also made the TRO a permanent restraining order. The court memorialized 

its bench ruling in its July 8, 2008 Findings of Fact, Conclusions of Law and Order. 

¶5 The parties continued to submit numerous motions setting forth various arguments 

and allegations until August 4, 2009, when Kortlander moved once again to have 

Nightengale held in civil and criminal contempt. While this motion was pending, 

Nightengale moved to have the restraining order amended alleging that the 

“anti-defamation” condition was overly broad and, therefore, unconstitutional. The 

District Court met with the parties and their attorneys on October 6, 2009, at which time 

the parties stipulated that the court could consider and determine the pending motions on 

the parties’ briefs without additional hearing. 

¶6 The District Court addressed both motions in its January 5, 2010 Memorandum 

and Order. It agreed that the “anti-defamation” condition was unconstitutional and struck 

it from the restraining order. It denied Kortlander’s request to hold Nightengale in 

criminal and civil contempt based on specific acts of conduct by Nightengale of which 

Kortlander complained. It did hold Nightengale in civil contempt for failing to pay the 

$350 fine ordered in the court’s July 8, 2008 order. The District Court increased the fine 

from $350 to $500 and ordered Nightengale to pay Kortlander’s attorney fees and costs 

for both 2007 and 2009 contempt proceedings.
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¶7 Nightengale paid the $500 fine in February 2010, expressly stating that the court 

“appropriately sanctioned” him for failing to pay the $350 fine ordered in July 2008. 

However, he also moved to amend the court’s ruling, alleging that he should not have to 

pay Kortlander’s attorney fees for either contempt hearing. In March 2010, the District 

Court amended its order and ruled that Nightengale need not pay Kortlander’s attorney 

fees and costs for the 2007 contempt hearing but had to pay the fees and costs for the 

2009 contempt proceeding. Kortlander’s attorney subsequently submitted a statement for 

$9,835. A hearing on the fees was held in May 2010 and Nightengale was ordered to 

pay. Nightengale appeals.

ISSUES

¶8 A restatement of Nightengale’s issues on appeal is:

¶9 Did the District Court abuse its discretion when it held Nightengale in contempt of 

the court’s July 8, 2008 order?

¶10 Did the District Court violate Nightengale’s due process rights by finding him in 

criminal contempt and ordering him to pay Kortlander’s attorney fees?

¶11 Did the District Court abuse its discretion in awarding attorney fees to Kortlander 

and in setting those fees at $9,835? 

DISCUSSION

¶12 The District Court record in this case is extensive and our careful review of it 

convinces us that Nightengale’s arguments on appeal are without merit. It is undisputed 

that Nightengale did not pay the fine ordered by the District Court in the December 4, 

2007 hearing and set forth in its subsequent order dated July 8, 2008. The District Court 

therefore had grounds for finding Nightengale in civil contempt, notwithstanding its 
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subsequent rescission of part of its order, as reflected in ¶ 6. Moreover, Nightengale 

expressly acquiesced to the court’s imposition of the $500 civil contempt sanction for his 

failure to pay the fine in a timely manner.

¶13 Nightengale claims the District Court’s ruling that he pay Kortlander’s attorney 

fees and costs associated with the 2009 contempt proceeding constitutes a criminal 

contempt sanction that violated his right to due process. The record contains nothing to 

support this assertion. The District Court did not characterize its ruling as a finding of 

criminal contempt. Given the voluminous record before us, the court’s decision to 

obligate Nightengale to pay these fees and costs was well within the court’s discretion 

pursuant to its equitable powers, and finds support in our decision in El Dorado Heights 

Homeowners’ Ass’n v. Dewitt, 2008 MT 199, ¶¶ 26-30, 344 Mont. 77, 186 P.3d 1249. 

¶14 Lastly, the District Court conducted a hearing on the amount of attorney fees and 

costs and allowed the parties to fully present their arguments. In fact, Nightengale’s 

attorney questioned Kortlander’s attorney on the stand. The court noted that Nightengale 

failed to present any convincing evidence that the fees and costs were unreasonable. We 

agree.

¶15 The issues in this case are legal and are controlled by settled Montana law, which 

the District Court correctly interpreted. Moreover, the District Court did not abuse its 

discretion in holding Nightengale in contempt and awarding and determining attorney 

fees. Because the record in this case fully supports the orders entered by the District 

Court, we will not disturb those decisions.
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¶16 We affirm the judgment of the District Court.

/S/ PATRICIA COTTER

We concur:

/S/ JAMES C. NELSON

/S/ BETH BAKER

/S/ MICHAEL E WHEAT

/S/ BRIAN MORRIS