07/06/2021
DA 20-0519
Case Number: DA 20-0519
IN THE SUPREME COURT OF THE STATE OF MONTANA
2021 MT 168N
NENA S. KRUGER,
Petitioner and Appellant,
v.
DALE R. KRUGER,
Respondent and Appellee.
APPEAL FROM: District Court of the First Judicial District,
In and For the County of Lewis and Clark, Cause No. DDR 2018-199
Honorable James P. Reynolds, Presiding Judge
COUNSEL OF RECORD:
For Appellant:
Tara A. Harris, Harris Law Office PLLC, Helena, Montana
For Appellee:
Brent Flowers, Greg Beebe, Beebe & Flowers Law Firm, Helena, Montana
Submitted on Briefs: June 2, 2021
Decided: July 6, 2021
Filed:
cir-641.—if
__________________________________________
Clerk
Justice Beth Baker delivered the Opinion of the Court.
¶1 Pursuant to Section I, Paragraph 3(c), 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 Nena Kruger appeals a First Judicial District Court order vacating a 2018 temporary
order of protection (“TOP”) against her ex-husband, Dale Kruger. We affirm.
¶3 Dale and Nena were married in Washington in 2005. By 2008 they had legally
separated, and Dale purchased and moved into a house outside of Helena. The two
attempted to reconcile in 2011, with Nena moving to Montana to live with Dale. The
attempted reconciliation failed, however, and Dale asked for a divorce in Washington in
2017. Dale and Nena continued to live together in Montana until March 2018, when Dale
moved to Deer Lodge. Nena remained in the Helena residence. On April 6, 2018, Nena
filed a petition for a TOP (“First Petition”) with the District Court, naming Dale as
respondent; the court found her allegations vague and denied the petition. The parties’
divorce was finalized on April 16, 2018. Nena filed a second TOP petition
(“Second Petition”) in Justice Court on April 23. The Justice Court denied it, stating that
Nena needed to file the petition with the District Court. On April 24, Nena filed a third
TOP petition (“Third Petition”) with the District Court. The District Court granted the
Third Petition and entered a TOP prohibiting Dale from contacting Nena or the parties’
minor daughter who lived with Nena.
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¶4 The court set a hearing date of May 10, 2018, to consider whether to make the TOP
permanent. The hearing was delayed several times, however, and eventually trifurcated
over a period of about half a year. Witnesses included Robert Smith, a tenant living on the
Kruger’s property; Karl Kruger, the parties’ adult son; and both Nena and Dale.
Disposition of the matter was delayed until September 2020, when the District Court
entered an Order vacating the TOP, concluding that it was not necessary to enter a
permanent order of protection. Nena argues that the District Court erred by improperly
relying on, misapprehending, and giving undue weight to various pieces of evidence and
testimony elicited at the hearing.
¶5 “This Court will not overturn a district court’s decision to continue, amend, or make
permanent an order of protection absent an abuse of discretion.” Boushie v. Windsor,
2014 MT 153, ¶ 8, 375 Mont. 301, 328 P.3d 631 (citation omitted). Under the abuse of
discretion standard, this Court does not consider whether it would have reached the same
decision as the trial judge, but only whether the trial judge “acted arbitrarily without
conscientious judgment or exceeded the bounds of reason.” Boushie, ¶ 8 (citation omitted).
This Court reviews findings of fact to determine if they are clearly erroneous.
In re Marriage of Olson, 2008 MT 232, ¶ 20, 344 Mont. 385, 194 P.3d 619
(citation omitted). “A finding is clearly erroneous if it is not supported by substantial
evidence, the district court misapprehended the effect of the evidence, or our review of the
record convinces us the district court made a mistake.” Marriage of Olson, ¶ 20
(citation omitted). This Court does not substitute its own judgment for that of the
district court regarding a witness’s credibility or the weight to be given his or her testimony.
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In re Marriage of Tummarello, 2012 MT 18, ¶ 34, 363 Mont. 387, 270 P.3d 28
(citation omitted).
¶6 The purpose of Montana’s laws authorizing orders of protection is “to promote the
safety and protection of all victims of partner and family member assault, victims of sexual
assault, and victims of stalking.” Lear v. Jamrogowicz, 2013 MT 147, ¶ 22, 370 Mont. 320,
303 P.3d 790 (quoting § 40-15-101, MCA; internal quotation marks omitted).
Section 40-15-201, MCA, provides that a court shall issue a TOP upon finding
“the petitioner is in reasonable apprehension of bodily injury or is a victim of one of the
offenses listed in 40-15-102, has a relationship to the respondent if required by 40-15-102,
and is in danger of harm if the court does not issue a [TOP] immediately.” As its name
suggests, however, a TOP is only temporary—a court must conduct a hearing on the
temporary order to “determine whether good cause exists for the [TOP] to be continued,
amended, or made permanent.” Section 40-15-202(1), MCA. In considering whether to
make a TOP permanent, a court must determine whether, “to avoid further injury or harm,
the petitioner needs permanent protection” by analyzing “the respondent’s history of
violence, the severity of the offense at issue, and the evidence presented at the hearing.”
Section 40-15-204(1), MCA.
¶7 At the hearing, both parties elicited witness testimony on a wide range of allegations
and grievances they had against one another. Nena supported her allegations with a few
pictures, which were not conclusive. The District Court thus based its decision to vacate
the TOP largely on witness credibility and on the weight it determined to afford the
witnesses’ testimony.
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¶8 Nena alleges the District Court made three main errors in its Order vacating the
TOP: improperly relying upon the Justice Court’s denial of her Second Petition; improperly
considering testimony that Dale threatened Nena; and generally finding Dale’s testimony
credible despite the weight of the evidence.
¶9 Regarding the Justice Court’s denial of Nena’s Second Petition, the District Court
noted in its fourth finding of fact: “The Justice Court denied Nena’s [Second Petition] on
April 23, 2018.” In its conclusions of law, the court implicitly referenced the
Second Petition again: “Nena filed three separate petitions for order of protection, two of
which were denied. The [First Petition] contained none of the specific allegations
contained in Nena’s later petitions.” Nena claims these findings and conclusions
demonstrate the District Court either misapprehended the effect of, or was mistaken
regarding, the Justice Court’s denial—which was procedural in nature, rather than on the
merits. Finding of fact number four, however, is an objectively correct statement. The
Justice Court did indeed deny Nena’s Second Petition on April 23 with a notation,
“Denied—Must file in District Court,” on the document’s caption. Reading the
District Court’s conclusion of law in context indicates that the court focused not on the fact
the Second Petition was denied, but on the fact that it contained new allegations. The
District Court then turned its attention to the hearing testimony and the allegations of the
Third Petition; it did not reference the Second Petition again. The District Court did not
rely on the Second Petition’s denial in making its conclusion, and the few references the
District Court did make to the Second Petition were accurate.
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¶10 Nena next contends that the District Court improperly considered the fact that Dale
had not acted on the threats he allegedly made toward Nena. The court noted that “Dale has
made threats towards Nena, such as running her off the road, knocking her down a flight
of stairs, or dropping a rock on her car from an overpass.” It added, however, that Dale
“did not make these threats directly to Nena, but to their tenant Smith. None of the threats
have been followed through on.” At the hearing, Nena called Smith to testify. Smith
testified that Dale did indeed make these threats but only while otherwise venting about
their deteriorating relationship, and at no point did Smith consider them to be serious. The
District Court contrasted this testimony with testimony alleging Nena encouraged Smith
and Karl to make false statements to law enforcement, that Dale was never charged with
any crimes, and that Nena continued to reside with Dale after Dale allegedly made
statements to her in which he admitted to criminal activity. It ultimately concluded that
Nena was not fearful of Dale. Reviewing the hearing transcript, we find support for the
District Court’s interpretation of the witnesses’ testimony. Nena has not demonstrated
clear error in its findings. Marriage of Tummarello, ¶ 34.
¶11 Finally, Nena contends that the District Court erred in finding credible Dale’s
various denials of the accusations against him because Dale admitted to having previously
lied to her. Nena points to the fact that during the hearing Dale admitted that he had lied
to her in April 2018, in order to “keep things spinning” and generally cause her stress. The
lie—concerning how Dale initially learned of the First Petition—was unrelated to the
accusations Nena made in support of the TOP, and Dale admitted to the lie while under
oath. There is substantial evidence in the record from which the District Court could find
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Dale generally credible despite this lie. On the record as a whole, the court did not abuse
its discretion regarding how much weight Dale’s testimony should be afforded. The
District Court’s findings in that regard are not clearly erroneous. Marriage of Olson, ¶ 20;
Marriage of Tummarello, ¶ 34.
¶12 We have determined to decide this case pursuant to Section I, Paragraph 3(c) of our
Internal Operating Rules, which provides for memorandum opinions. In the opinion of the
Court, the case presents a question controlled by settled law or by the clear application of
applicable standards of review. Although Nena points to evidence that could have led the
court to a different result, the District Court’s findings support its conclusion that Nena did
not need permanent or extended protection “to avoid further injury or harm.”
Section 40-15-204(1), MCA. We conclude that the court did not abuse its discretion by
vacating the TOP and by declining to issue an order extending it for an additional period
of time or making it permanent. The District Court’s Order vacating the TOP is affirmed.
/S/ BETH BAKER
We Concur:
/S/ JAMES JEREMIAH SHEA
/S/ LAURIE McKINNON
/S/ DIRK M. SANDEFUR
/S/ JIM RICE
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