K.D.R.-M v. R.E.M.

JUSTICE WARNER

concurring.

¶25 I agree with the result reached by the Court, but disagree with its reasoning. The Court mistakenly applies the manifest abuse of discretion standard for review of injunctive relief. The manifest abuse of discretion standard for review of a grant or denial of injunctive relief is well thought out and carefully crafted. However, in my view, the Court’s holding in this case should be based on a failure to follow the applicable statute, rather than on a manifest abuse of discretion.

¶26 The beginning of this controversy, as far as it involves the orders of protection, is the mother’s ex parte applications for protective orders. By the very nature of these orders, the information presented to the Court, including information concerning the alleged abuse of the child, all came from the mother. The father did not have any opportunity to present his side of the story. It was based on such ex parte information that the District Court found probable cause to issue the protective orders. At this point is where the District Court exercised its discretion.

¶27 Then, still with no input from the father, the various counselors recommended mental health and sexual offender evaluations. When the father had his opportunity to contest the mother’s allegations, he offered substantial information and opinions that the mother was wrong, that he presented no danger to the child, that he could not afford to come to Montana for an evaluation, and raised a real suspicion that the mother alleged he sexually abused the child only to keep him from exercising his visitation rights.

¶28 The father moved the District Court to vacate its orders of protection. This motion was summarily denied pending completion of the evaluations previously ordered, without considering the information presented to support it. The father again moved to vacate the orders of protection, arguing that the evaluations were unnecessary, that they would violate his right to privacy, and that he had no ability to pay for evaluations done in Montana when he lived on the East coast. This motion was deemed sufficient to set the matter for hearing.

¶29 On July 8, 2003, the mother, her attorney and the father’s *346attorney appeared before the District Court in Wolf Point. The mother testified in opposition to the father’s affidavit that he could not afford to come to Montana for evaluations. Then, without considering the further evidence the mother was prepared to present in support of the orders of protection, and over her objection, both protective orders were vacated and the actions dismissed. The formal written order of dismissal was filed July 18, 2003.

¶30 The District Court’s error is not that it manifestly abused its discretion in dismissing the protective orders. The error is in vacating the orders and dismissing the entire action without holding a hearing on whether the protective orders should be continued, amended or dismissed.

¶31 The mother commenced both of these actions specifically alleging she was entitled to a temporary protective order under § 40-15-201, MCA, as well as under § 40-4-121, MCA.

Section 40-15-202(1), MCA, provides:

(1) A hearing must be conducted within 20 days from the date that the court issues a temporary order of protection. The hearing date may be continued at the request of either party for good cause or by the court. If the hearing date is continued, the temporary order of protection must remain in effect until the court conducts a hearing. At the hearing, the court shall determine whether good cause exists for the temporary order of protection to be continued, amended, or made permanent.

¶32 Once the mother presented enough information under oath to move the District Court’s discretion to issue the temporary order, the statute clearly requires that a hearing be held where the trial court is to take evidence before making a decision whether such order should be dismissed, continued, amended or made permanent. The District Court did not manifestly abuse its discretion by deciding the mother’s allegations were groundless and dismissing its former orders. It had no discretion to make that decision without holding a hearing. As said above, not holding the hearing to determine what the facts really are, as required by statute, is the error.

¶33 The Court’s decision today is troubling because in order to conclude the District Court manifestly abused its discretion, it necessarily makes a qualitative determination the mother’s hearsay information is more persuasive than the hearsay information presented by the father.

¶34 I concur that the case must be remanded, but I make no comment on the evidence.