No. DA 06-0114
IN THE SUPREME COURT OF THE STATE OF MONTANA
2006 MT 345N
TRACI M. WILLIAMS,
Plaintiff and Respondent,
v.
ROBERT E. WILLIAMS,
Defendant and Appellant.
APPEAL FROM: The District Court of the Twentieth Judicial District,
In and For the County of Hill, Cause No. DV 2005-255,
Honorable C. B. McNeil, Presiding Judge
COUNSEL OF RECORD:
For Appellant:
Caryn Miske, Attorney at Law, Frenchtown, Montana
For Respondent:
Matthew H. O’Neill, O’Neill Law Office, PLLC, Polson, Montana
Submitted on Briefs: November 14, 2006
Decided: December 27, 2006
Filed:
__________________________________________
Clerk
Justice Patricia O. Cotter delivered the Opinion of the Court.
¶1 Pursuant to Section I, Paragraph 3(c), Montana Supreme Court 1996 Internal Operating
Rules, the following decision shall not be cited as precedent. It shall be filed as a public
document with the Clerk of the Supreme Court and its case title, Supreme Court 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 Robert Williams appeals from the District Court’s Order of Protection (Order), dated
January 31, 2006, permanently restraining him from contact with his daughter-in-law, Traci
Williams, and members of Traci’s family, including Sam Williams (Traci’s husband and
Robert’s son), Domonic and Mackenzie Williams (Traci’s and Sam’s children), and Robert,
Joan and Rae Lajoie (Traci’s parents and sister). The District Court issued its Order in response
to Robert’s appeal from a temporary order of protection issued by the Justice Court on August
19, 2005. Following a trial de novo on Robert’s appeal, the District Court incorporated the terms
of the temporary restraint into its permanent Order. We affirm.
¶3 Robert cites §§ 40-15-201 and 45-5-206, MCA, in support of his contention that the
Order should be vacated. Robert claims Traci failed to establish by substantial credible evidence
that Robert posed a threat of immediate physical injury to Traci and her family.
¶4 The decision to make permanent an order of protection is for the district court to
determine, and we will not overturn its decision absent an abuse of discretion. Schiller v.
Schiller, 2002 MT 103, ¶ 24, 309 Mont. 431, ¶ 24, 47 P.3d 816, ¶ 24. The trial transcript in this
case is replete with conflicting evidence with regards to alleged events that led to Traci’s petition
to the courts for protection. However, it is not our role to weigh conflicting evidence or
determine the strength of such conflicting testimony. The district court is in a better position to
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observe the witnesses and judge their credibility than this Court. Therefore, “we will not second
guess the district court’s determination regarding the strength and weight of conflicting
testimony.” Bonnie M. Combs-Demaio Liv. Trust v. Colony, 2005 MT 71, ¶ 9, 326 Mont. 334, ¶
9, 109 P.3d 252, ¶ 9 (citations omitted).
¶5 The District Court clearly based its decision on the relative credibility of the witnesses
and strength of the evidence presented. Such a determination is well within the trial court’s
discretion. Bonnie M. Combs-Demaio Liv. Trust, ¶ 9. The District Court found Traci’s evidence
to be more credible, and ruled accordingly, as evidenced by the following:
The Court: So I have conflicting testimony before me and have to decide
who to believe. That’s my job.
...
[Counsel]: That’s true, but we do get to a “he said she said” situation
unfortunately.
The Court: That’s correct. And I have to decide who to believe. I’m about
to do that.
[Counsel]: Okay.
The Court: The temporary order of protection issued by the justice court
August 19, 2005, is made permanent . . . .
¶6 Robert also contends that improper notice of the District Court proceedings violated his
due process rights; however, Robert failed to present this argument in the District Court. In
keeping with our jurisprudence, we decline to address issues not properly preserved for appeal.
See Lutes v. Lutes, 2005 MT 242, ¶ 18, 328 Mont. 490, ¶ 18, 121 P.3d 561, ¶ 18 (citation
omitted).
¶7 Finally, Robert complains that the District Court issued no findings of fact or conclusions
of law to support its decision. While we do not condone the court’s failure to issue an order
without supporting findings and conclusions, and caution once again against such a practice, we
conclude that the transcript, an excerpt of which is set forth above, adequately explains the basis
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for the court’s decision. We therefore decline to remand for findings of fact and conclusions of
law.
¶8 For the foregoing reasons, we affirm.
/S/ PATRICIA COTTER
We Concur:
/S/ JAMES C. NELSON
/S/ BRIAN MORRIS
/S/ JOHN WARNER
/S/ JIM RICE
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