NO. 95-409

IN THE SUPREME COURT OF THE

1996

STATE OF MONTANA

IN RE THE MARRIAGE OF

VALLINA R. OSTREM,

Petitioner and Respondent,

and

APPEAL FROM: District Court of the Ninth Judicial District,

In and for the County of Toole,

The Honorable Marc G. Buyske, Judge presiding.

COUNSEL OF RECORD:

For Appellant:

Robert G. Olson; Frisbee, Moore & Olson,

Cut Bank, Montana

For Respondent:

Daniel L. Falcon, Attorney at Law,

Great Falls, Montana

Filed:

Submitted on Briefs: February 1, 1996

Decided: May 6, 1996
Justice William E. Hunt, Sr. delivered the Opinion of the Court.

Pursuant to Section I, Paragraph 3(c), Montana Supreme Court

1995 Internal Operating Rules, the following decision shall not be

cited as precedent and shall be published by its filing as a public

document with the Clerk of the Supreme Court and by a report of its

result to Montana Law Week, State Reporter and West Publishing

Company.

Appellant Robert B. Holston, Jr. (Robert) appeals the decision

of the Ninth Judicial District Court, Toole County, granting and

subsequently extending an order which temporarily enjoined him from

approaching Respondent Vallina R. Ostrem (Vallina) and the parties'

minor son.

Affirmed.

Robert and Vallina were divorced in 1982 and have two sons,

both of whom reside with their mother and the elder of whom

attained his majority during the course of the proceedings now

appealed. Vallina and the boys live in the Shelby area, and Robert

temporarily moved to Shelby in 1994. Because Vallina felt Robert

was unnecessarily and purposely disturbing her and their sons, she

obtained a preliminary injunction against him from the Toole County

Justice Court.

Robert appealed the issuance of the preliminary injunction to

the Ninth Judicial District Court, Toole County, alleging that the

affidavit used to obtain the injunction was statutorily

insufficient. He therefore moved that the preliminary injunction

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be dismissed. The District court denied this motion and

subsequently held a partial hearing regarding whether an injunction

was appropriate in this case. During the hearing, both parties

stipulated to the continuance of the injunction, with modifications, for a period of ninety days.

At the end of that period, Vallina moved the District Court to

extend the effective period of the injunction, and Robert again

raised his objection that the affidavit which had been the basis

for the Justice Court's preliminary injunction was insufficient.

The District Court extended the injunction for an additional six

months, and Robert appeals.

The grant or denial of a preliminary injunction is a

discretionary ruling which will not be disturbed on appeal except

where there is a manifest abuse of discretion by the district

court. Van Loan v. Van Loan (1995), 271 Mont. 176, 178-79, 895

P.2d 614, 615 (citing Atkinson v. Roosevelt County (1923), 66 Mont.

411, 214 P. 74).

Robert here argues, as he did in the District Court, that the

affidavit underlying the preliminary injunction issued by the

Justice Court was insufficient and, therefore, a preliminary

injunction should never have issued on that basis. Since the

original injunction was flawed, he argues that the District Court

should have dismissed it and that the District Court's extension of

it was reversible error. However, we need not to address the issue

of the sufficiency of the Justice Court's affidavit since, flawed
or not, the affidavit was not the basis for the District Court's

issuance of its own preliminary injunction.

Section 25-33-301, MCA, provides:

All appeals from justices' or city courts must be tried

anew in the district court on the papers filed in the

justice's or city court unless the court, for good cause

shown and on such terms as may be just, allow other or

amended pleadings to be filed in such action. .

Section 25-33-301(l), MCA. We have repeatedly held that, under the

above statute, a trial de novo in the district court is an

appellant's exclusive remedy from a justice court's proceedings.

Rickett v. City of Billings (1993), 262 Mont. 339, 340, 864 P.2d

793, 794. - - See also Adair v. Lake County Justice Court (1984), 213

Mont. 466, 692 P.2d 13; City of Hardin v. Myers (1981), 194 Mont.

248, 633 P.2d 677. Therefore, the function of the District Court

in this case was not to evaluate the propriety of the procedure

employed by the Justice Court but, rather, to decide de nova

whether a preliminary injunction was appropriate.

The issuance of the preliminary injunction by the District

Court was based on the stipulation of the parties that a modified

preliminary injunction was acceptable and appropriate. It is that

stipulation, and not the earlier affidavit, which formed the basis

for the injunction issued by the District Court. Therefore, the

issue Robert asks us to address--whether the Justice Court

affidavit was procedurally sufficient--is neither material nor

within our jurisdiction. "[T]he Supreme Court does not have

appellate jurisdiction to review orders of the justice court.'1

Adair, 692 P.2d at 13-14.

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Because Robert stipulated to the preliminary injunction issued

by the District Court, he will not be heard now to question its

validity.

Order affirmed

Justice

We concur:

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