No 

No. 99-247

IN THE SUPREME COURT OF THE STATE OF MONTANA

1999 MT 189

295 Mont. 352

983 P.2d 966

IN RE THE MARRIAGE OF 

DANA C. CHRISTIAN,

Petitioner and Appellant,

and

NANCY MUELLER

f/k/a NANCY CHRISTIAN,

Respondent and Respondent.

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No 

APPEAL FROM: District Court of the Sixth Judicial District,

In and for the County of Park,

The Honorable Wm. Nels Swandal, Judge presiding.

COUNSEL OF RECORD:

For Appellant:

Dana C. Christian, Attorney at Law, Livingston, Montana

For Respondent:

Karl Knuchel, Attorney at Law, Livingston, Montana

Submitted on Briefs: July 8, 1999

Decided: August 10, 1999

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No 

Filed:

__________________________________________

Clerk

Justice James C. Nelson delivered the Opinion of the Court.

¶1. Dana C. Christian (Dana) appeals from the Sixth Judicial District Court, Park 

County restraining order dated January 21, 1999, and from the February 4, 1999 

order denying his motion for amendment. We reverse and vacate the court's January 

21, 1999 order and remand this case to the District Court for further proceedings on 

Dana's motion.

Background

¶2. The parties' marriage was dissolved in California in 1987. On December 30, 1998, 

Dana, a licensed attorney appearing pro se, filed a "Motion to Modify Child Custody 

and Related Issues" along with a supporting brief and affidavit. Among other things, 

Dana's motion requested a restraining order against his former wife, Nancy Mueller 

f/n/a Nancy Christian (Nancy). Dana's motion arose out of an ongoing dispute 

between the parties concerning custody and visitation of the parties' minor child. The 

alleged facts surrounding the incidents precipitating Dana's motion are not material 

to our disposition of the legal question at issue. Nancy, by counsel, filed her response, 

brief and affidavit on January 12, 1999. She objected to Dana's motion on both 

procedural and substantive grounds. Nancy did not request a restraining order 

against Dana, however. Dana filed his reply affidavit on January 20, 1999.

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¶3. On January 21, 1999, without notice or hearing, the District Court entered an 

order requiring each party to stay 1500 feet away from the other party's residence 

and place of work. This order also designated where the parties would transfer 

custody of the child for visitation purposes and established a telephone contact 

protocol and visitation schedule. The court directed that its order "remain in effect 

until further order of the Court."

¶4. On the same date that the court issued this order, Dana filed his "Motion for 

Amendment-Clarification" objecting to the court's mutual restraining orders. Dana 

argued that § 40-15-202(3), MCA(1), precluded issuance of a restraining order 

against him where only he had requested that relief against Nancy. This section of 

the code pertains to the issuance of orders of protection and is located in that chapter 

of the code dealing with partner and family member assault; sexual assault; and 

stalking; and the safety and protection of victims. See Title 40, chapter 15, Montana 

Code Annotated. On February 4, 1999, the District Court denied Dana's motion 

stating that it had not issued the restraining order under the authority of § 40-15-202

(3), MCA, but rather, had issued its order under § 40-4-121, MCA. This appeal 

followed.

Issue

¶5. Did the District Court err in issuing a mutual restraining order under § 40-4-121, 

MCA, for an indefinite period of time and without notice and hearing?

Discussion

¶6. Typically, we review a trial court's grant of injunctive relief for "manifest abuse 

of discretion." Van Loan v. Van Loan (1995), 271 Mont. 176, 178-79, 895 P.2d 614, 

615 (citation omitted). However, where, as here, the court grounds its decision to 

issue such relief upon its interpretation of a particular statute, we review de novo the 

court's legal conclusion as to its jurisdiction--i.e., simply to determine whether the 

court's interpretation of the law is correct. See State v. Asmundson (1997), 283 Mont. 

141, 145-46, 940 P.2d 104, 106-07.

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¶7. Section 40-4-121(2)(c), MCA, allows either party, by independent motion 

supported by affidavit, to request the court to issue a temporary injunction enjoining 

a party from molesting or disturbing the peace of the other party or of any family 

member. Subsection (2)(d) permits the court to exclude a party from the family home 

or from the home of the other party upon showing that physical or emotional harm 

would otherwise result. The trial court referenced both of these subsections in its 

February 4, 1999 order as the authority for its issuance of its January 21, 1999 order.

¶8. Section 40-4-121(4), MCA, however, provides in pertinent part, that "[a]ny 

temporary injunction entered under this subsection [2] must be for a fixed period of 

time, not to exceed 1 year . . . ." Furthermore, § 40-4-121, MCA, requires in pertinent 

part that

(5) The court may issue a temporary restraining order for a period not to exceed 20 days 

without requiring notice to the other party only if it finds on the basis of the moving 

affidavit or other evidence that irreparable injury will result to the moving party if an order 

is not issued until the time for responding has elapsed.

(6) A response may be filed within 20 days after service of notice of motion or at the time 

specified in the temporary restraining order.

(7) At the time of the hearing, the court shall determine whether good cause exists for the 

injunction to continue for 1 year. 

¶9. In the case at bar, the District Court's January 21, 1999 restraining order fails 

the requirements of subsections (2), (4), (5), (6) and (7) of § 40-4-121, MCA. First, the 

court's order was not entered for "a fixed period of time, not to exceed 1 year." 

Rather, the court directed that its order was to "remain in effect until further order 

of the Court." This frame of reference is neither for a "fixed period" nor does it 

preclude the order from exceeding the 1-year statutory time limit. Thus, § 40-4-121

(4), MCA, is violated. 

¶10. Second, the court's January 21, 1999 order was issued as against Dana without 

request from Nancy (contrary to § 40-4-121(2), MCA) and also without notice to 

either party, proper findings, or a hearing. Section 40-4-121(5), MCA, read together 

with § 40-4-121(6) and (7), MCA, unambiguously requires notice and hearing before 

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a restraining order under § 40-4-121(2), MCA, is issued. Asmundson, 283 Mont. at 

145-46, 940 P.2d at 106-07. If, as it was here, the restraining order is issued without 

notice, subsection (5) limits the duration of the order to 20 days, and this subsection 

also requires the court to make certain prescribed findings. These statutory findings 

are not included in either the court's January 21, 1999, or February 4, 1999, orders. 

Moreover, the court's January 21, 1999 order was issued without a hearing. 

¶11. Nancy argues that because § 40-4-121(3), MCA, directs the clerk of the district 

court to issue a restraining order without notice or hearing, the District Court doing 

the same thing was, thus, proper. Nancy's argument is without merit. Section 40-4-

121(3), MCA, directs the clerk of the district court to issue a temporary restraining 

order in conjunction with the issuance of a summons pursuant to Title 40, chapter 4, 

Montana Code Annotated. No summons was issued in this case. Rather, Dana 

applied for a restraining order by independent motion accompanied by affidavit 

under § 40-4-121(2), MCA. Moreover, the temporary restraining order issued by the 

clerk under § 40-4-121(3), MCA, is limited statutorily to matters involving property. 

See § 40-4-121(3)(a) and (b), MCA. Section 40-4-121(3), MCA, is clearly inapplicable 

in the case sub judice.

¶12. When interpreting a statute, we look first to the plain meaning of its words. 

When the statute is plain, unambiguous, direct and certain, the statute speaks for 

itself and there is no need to resort to extrinsic means of interpretation. Asmundson, 

283 Mont. at 146, 940 P.2d at 107 (citing State v. Gould (1995), 273 Mont. 207, 219, 

902 P.2d 532, 540). Based upon our plain reading of the unambiguous requirements 

of § 40-4-121(2), (4), (5), (6) and (7), MCA, the District Court's January 21, 1999 

restraining order failed to comply with these subsections and was, accordingly, 

improperly issued as a matter of law. See Asmundson, 283 Mont. at 146, 940 P.2d at 

107.

¶13. While we gather from Dana's brief that he believes the restraining order against 

Nancy should remain in effect, it is invalid as against her as well for the reasons set 

forth above. Moreover, while the court's January 21, 1999 order covers matters 

arguably not involving keeping the parties away from each other's homes and 

businesses, it appears from our reading of the court's order that these latter matters 

were part and parcel of the injunctive relief granted by the court. Accordingly, it is 

appropriate that the court revisit all of these matters on remand after proper notice 

is given to the parties and after a hearing.

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No 

¶14. The court's issuance of its January 21, 1999 mutual restraining order is reversed 

and the order is vacated. We remand this case to the District Court for further 

proceedings on Dana's motion.

/S/ JAMES C. NELSON

We concur:

/S/ WILLIAM E. HUNT, SR.

/S/ W. WILLIAM LEAPHART

/S/ TERRY N. TRIEWEILER 

/S/ JIM REGNIER 

1. 1 All statutory references are to the 1997 version of the Montana Code Annotated since the matters at issue 

occurred from and after December 1998. 

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