No. DA 06-0543
IN THE SUPREME COURT OF THE STATE OF MONTANA
2007 MT 138
____________________________________
JANIS H. EDELEN,
Petitioner and Respondent,
v.
MARK J. BONAMARTE,
Respondent and Appellant.
____________________________________
APPEAL FROM: District Court of the Eighteenth Judicial District,
In and for the County of Gallatin, Cause No. DR-06-153(C),
The Honorable John C. Brown, Presiding Judge.
COUNSEL OF RECORD:
For Appellant:
Karl P. Seel, Attorney at Law, Bozeman, Montana
For Respondent:
Janis H. Edelen (pro se), Bozeman, Montana
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Submitted on Briefs: February 7, 2007
Decided: June 12, 2007
Filed:
_____________________________________________
Clerk
Justice Brian Morris delivered the Opinion of the Court.
¶1 Mark J. Bonamarte (Bonamarte) appeals from an order of protection issued by the
Eighteenth Judicial District, Gallatin County. We remand to the District Court for the
entry of the court’s findings of facts and conclusions of law pursuant to M. R. Civ. P.
52(a).
FACTUAL AND PRODECURAL BACKGROUND
¶2 Bonamarte and Jan Edelen (Edelen) began dating in 2003. The relationship
soured and Edelen petitioned Gallatin County Justice Court on March 24, 2006, for a
temporary order of protection against Bonamarte. Edelen claimed that Bonamarte
refused to stop contacting her following the breakup of their relationship and threatened
her and her children in subsequent telephone conversations.
¶3 The Justice Court granted the temporary order of protection and held a hearing on
April 12, 2006, to determine whether to continue the order of protection. The court found
that Edelen was “in danger of harm” and that good cause existed to continue the order of
protection against Bonamarte.
¶4 Bonamarte appealed to the District Court. The court held a hearing de novo on
June 5, 2006. Edelen presented her two sons as witnesses. They testified that Bonamarte
threatened them on numerous occasions. Edelen also testified that Bonamarte threatened
her “many, many times” and refused to leave her alone. Bonamarte testified that he was
“a terrible boyfriend, partner” to Edelen but that he never threatened her or her sons.
¶5 The court determined, based on the testimony, that Bonamarte had caused Edelen
“substantial emotional distress, if not reasonable apprehension of bodily injury by
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repeatedly harassing, threatening, and intimidating her.” The court’s order cites to § 40-
15-102(2)(a), MCA. This statute allows a victim of stalking, as defined in § 45-5-220,
MCA, to petition for an order of protection against an offender. The court’s order quotes
the definition of stalking as provided in § 45-5-220, MCA. The court also recites
portions of Edelen’s testimony that Bonamarte threatened and intimidated her, causing
her to be afraid for herself and for her children. The court’s order further notes Edelen’s
testimony that Bonamarte caused her fear by mailing a receipt to her and by visiting the
gym on two occasions during the afternoon when he knew that she would be there. The
court continued the order of protection issued by the Justice Court for a period of one
year. Bonamarte appeals.
STANDARD OF REVIEW
¶6 We refuse to overturn the district court’s decision to continue, amend, or make
permanent an order of protection absent an abuse of the court’s discretion. Bock v. Smith,
2005 MT 40, ¶ 29, 326 Mont. 123, ¶ 29, 107 P.3d 488, ¶ 29.
DISCUSSION
¶7 Whether the district court abused its discretion when it continued the order of
protection against Bonamarte.
¶8 Bonamarte argues that insufficient evidence supports the court’s order of
protection based on the provisions of § 40-15-102(2)(a), MCA. This statute allows a
victim of stalking, as defined in § 45-5-220, MCA, to petition for an order of protection
against an offender. Section 45-5-220, MCA, defines stalking as repeated harassment,
threatening or intimidation of the stalked person. Bonamarte maintains that the receipt he
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sent to Edelen in the mail and the fact that he twice saw Edelen in a public place does not
support the court’s conclusion that Bonamarte repeatedly had engaged in the behaviors
that constitute stalking. Bonamarte also contends that the pleadings never alleged that
Bonamarte had stalked Edelen, and, thus, the district court abused its discretion in
continuing an order of protection based on the stalking statute.
¶9 The District Court possesses the authority to continue an order of protection under
the stalking statute if Edelen presented “credible evidence” that Bonamarte stalked her as
defined in § 45-5-220(1), MCA. Sections 40-15-102(2)(a), 45-5-220(4), MCA. The
court presumably determined that Edelen had presented such “credible evidence”
otherwise it would not have issued the amended order of protection against Bonamarte.
We cannot know for certain the basis of the court’s order, however, as the court failed to
enter findings of facts and conclusions of law supporting its decision that good cause
existed to continue the order of protection.
¶10 M. R. Civ. P. 52(a) requires the court to “find the facts specially and state
separately its conclusions of law” in all actions tried upon the facts without a jury.
Requiring findings of fact under M. R. Civ. P. 52(a) serves to aid the trial judge’s process
of adjudication, to assist in the determination of res judicata and estoppel by judgment,
and to help the appellate court on review. Snavely v. St. John, 2006 MT 175, ¶ 16, 333
Mont. 16, ¶ 16, 140 P.3d 492, ¶ 16. The court’s failure to state the findings of fact and
conclusions of law in the recommended form does not constitute substantial error if the
court’s findings and conclusions are clear to this Court. We consider “whether a district
court’s order sets forth reasoning, based upon its findings of fact and conclusions of law,
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in a manner sufficient to allow informed appellate review.” Snavely, ¶ 11.
¶11 The District Court’s order fails to set forth the court’s support for its finding that
Bonamarte caused Edelen “substantial emotional distress, if not reasonable apprehension
of bodily injury, by repeatedly harassing, threatening, and intimidating her.” The court’s
order simply refers to § 45-5-220, MCA, the stalking statute, and recites Edelen’s
testimony that she felt threatened by Bonamarte. Simply reciting the contentions of the
parties and reaching a legal conclusion does not satisfy the court’s duty to make factual
findings and conclusions of law under M. R. Civ. P. 52(a). “The court must also make
factual findings and combine those with a logical, reasoned analysis and application of
the law to the facts.” Snavely, ¶ 18.
¶12 The court’s failure to enter findings of fact and conclusions of law, as required by
M. R. Civ. P. 52(a), precludes this Court from undertaking appellate review. We refuse
to review the record with the purpose of making our own factual findings. Snavely, ¶ 19.
This Court’s function includes determining whether the district court abused its discretion
in continuing the order of protection against Bonamarte. Bock, ¶ 29. We cannot carry
out this task without a complete order from the District Court.
¶13 We remand to the District Court for entry of findings of fact and conclusions of
law as required by M. R. Civ. P. 52(a). The court’s order of June 14, 2006, continuing
the order of protection, shall remain in full force and effect during the pendency of the
remand to the District Court.
/S/ BRIAN MORRIS
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We Concur:
/S/ KARLA M. GRAY
/S/ PATRICIA COTTER
/S/ JAMES C. NELSON
/S/ JIM RICE
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