OPCNAL

IN THE SUPREME COURT OF THE STATE OF MONTANA

DA 20-0084

MICHELLE S. RAVE,

Petitioner and Appellee,

v.

LANDON W. WILSON,

Respondent and Appellant.

ORDER

FILED

AUG 1 1 2020

Bowen Greenwood Clerk of S'iprem Co Representing himself, Landon Wilson appeals the Eleventh JaklarDistacArourt's

January 13, 2020 Permanent Order of Protection prohibiting all contact with his

four-year-old son. The District Court entered the Order following a hearing on the petition

of Michelle Rave, the child's mother, with whom Wilson had a previous relationship. Both

parties appeared at the hearing without counsel, Michelle in person and Landon by telephone

from Wisconsin. Following its consideration of their testimony, the District Court found

Michelle's testimony credible and agreed that she was entitled to an order of protection

preventing Landon from contacting her, their son, and Michelle's two older children. The

Order has no expiration date.

Landon argues on appeal that there is clear error in the District Court's findings of

fact and alleges that the court lacked jurisdiction to enter the order without consideration of

the Uniform Child Custody Jurisdiction and Enforcement Act (UCCJEA),

§ 40-7-101, et seq. , MCA. Landon supports his arguments with a number of documents that

he did not present to the District Court. Michelle has not appeared in the appeal on her own

behalf or through counsel and has filed no responsive brief.

Among the documents included in the Appendix to Landon's Opening Brief is a

Temporary Order issued by the Monroe County, Wisconsin, Circuit Court on April 12, 2019,

providing arrangements between Michelle and Landon for their child's parenting. The Order

08/11/2020

Case Number: DA 20-0084
gives Michelle primary placement and Landon weekly parenting time with his son. Michelle

petitioned the Montana court for an order of protection in November 2019, seven months

after the Wisconsin court entered the parenting order. Landon argues that the

District Court's Order of Protection failed to include, as required by § 40-15-204(6), MCA,

"a section that indicates whether there are any other civil or criminal actions pending

involving the parties, a brief description of the action, and the court in which the action is

filed." He contends further that the District Court violated § 40-7-204, MCA, part of

Montana's adoption of the UCCJEA, by entering a permanent order of protection without

recognizing the "temporary emergency jurisdictioe lirnitation that section provides when

another state's court is exercising jurisdiction over the child's custody and visitation.

See In re Marriage of Kirkman, 2020 MT 17, IN 18-20, 398 Mont. 389, 456 P.3d 1028.

This Court's appellate review is confined to the record presented in the trial court.

See M. R. App. P. 8(1), 12(1)(d). We ordinarily do not consider facts and materials that the

parties did not give the district court an opportunity to consider. Landon points out that he

mentioned during the hearing that "we have a temporary order in place (although he

referred mistakenly to "Mineral County"). He did not, however, provide any details or offer

evidence of the Wisconsin court proceedings. Nonetheless, we may take judicial notice of

the Wisconsin court's order pursuant to M. R. Evid. 202(4).

Upon consideration of Landon's appellate brief and appendix, we conclude that it

presents a potential jurisdictional issue. Both Montana and Wisconsin have adopted the

UCCJEA. Tit. 40, ch. 7, MCA; Wis. Stat. ch. 822. "Except as otherwise provider by

§ 40-7-204, MCA, Montana's version of the UCCJEA provides that the court of another state

that made an initial "child custody determinatioe for a child retains "exclusive, continuing

jurisdiction over the child until that court determines either that:

(1) "neither the child, the child and one parent, nor the child and a person

acting as a parent have a significant connection with [that state] and that

substantial evidence is no longer available in [that state] concerning the child's

care, protection, training, and personal relationship?; or

(2) that state "is an inconvenient forum."
In re Marriage of Kirkman, ¶ 19 (quoting § 40-7-202(1)(a), (2), MCA). We recognized in

Kirkman that "a Montana court of otherwise competent jurisdiction 'has temporary

emergency jurisdiction' to 'protect' a child 'present in' Montana as 'necessary in an

emergency' where 'the child, or a sibling or parent of the child, is subjected to or threatened

with mistreatment or abuse.' " In re Marriage of Kirkman,¶ 20 (quoting §§ 40-7-202(1)(a),

-203(1), and -204(1), MCA). That emergency protection does not, however, authorize the

District Court to modify another court's parenting plan. See §§ 40-7-203(1),

-204(3), (4), MCA; Kirkman, ¶ 21. We conclude that the District Court must have the

opportunity to reconsider its order of protection in light of the Wisconsin proceeding and

under the governing provisions of the UCCJEA.

IT IS THEREFORE ORDERED that this matter is REMANDED to the District Court

for consideration of the Wisconsin child custody proceedings and, if applicable, resolution

under the UCCJEA.

IT IS FURTHER ORDERED that the January 13, 2020 Order of Protection shall

remain in place as a temporary order pending the District Court's further consideration.

There being no other issues to consider,

IT IS FURTHER ORDERED that the appeal is DISMISSED without prejudice.

The Clerk is directed to provide a copy of this Order to all parties, to the Clerk of the

Eleventh Judicial District Court, and to the Hon. Dan Wilson, presiding Judge in

Flathead County Cause No. 19-907.

DATED this n —day of August, 2020.

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