June 21 2011
DA 10-0616
IN THE SUPREME COURT OF THE STATE OF MONTANA
2011 MT 142
ROBIN JORDAN, f/k/a Robin Winegar,
Petitioner and Appellee,
v.
MARK KALIN,
Respondent and Appellant.
APPEAL FROM: District Court of the Fifteenth Judicial District,
In and For the County of Daniels, Cause No. DV 10 2010-12
Honorable David Cybulski, Presiding Judge
COUNSEL OF RECORD:
For Appellant:
Peter L. Helland; Helland Law Firm, PLLC; Glasgow, Montana
For Appellee:
Terrence L. Toavs; Law Offices of Terrance L. Toavs; Wolf Point,
Montana
Submitted on Briefs: May 25, 2011
Decided: June 21, 2011
Filed:
__________________________________________
Clerk
Justice Beth Baker delivered the Opinion of the Court.
¶1 Mark Kalin appeals an order in which the Fifteenth Judicial District Court, Daniels
County, adopted a permanent order of protection that prohibits him from having any
contact with Robin Jordan or her husband. We affirm.
¶2 We consider the following issues:
¶3 1. Did the District Court err in failing to grant Kalin’s motion to dismiss the
petition for an order of protection for lack of jurisdiction?
¶4 2. Was there sufficient evidence to support a permanent order of protection?
¶5 3. Did the District Court punish Kalin for exercising his right to enjoy and defend
his liberty?
FACTUAL AND PROCEDURAL BACKGROUND
¶6 In December of 2009, Daniels County, Montana, resident Robin Jordan (Jordan)
petitioned for a temporary order of protection against Ohio resident Mark Kalin. Based
on the affidavit and other documents filed, the Daniels County Justice’s Court granted
that petition and, after holding a hearing in July 2010, issued a temporary order of
protection effective until December 31, 2010. Kalin appealed to the District Court.
¶7 In the District Court, Kalin moved to dismiss the petition for lack of jurisdiction.
The District Court did not rule on that motion prior to the hearing on the petition. Rather,
in its findings issued after the substantive hearing, the court found it had jurisdiction.
¶8 Jordan, Kalin, Jordan’s husband David Jordan (David), and Jordan’s sister-in-law
Kara all testified at the November 2010 District Court hearing. The evidence was
undisputed that, from 2007 until early in 2009, Jordan--a former Ohio resident--and Kalin
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each worked one day a week at a livestock sales barn in Damascus, Ohio, where they had
occasional contact with each other. Jordan worked at the sales barn as a veterinarian, and
Kalin worked in a management capacity.
¶9 Jordan testified that Kalin developed a personal interest in her, which she did not
reciprocate. He tried to talk to her, asked for her telephone number, asked her out on a
date, and once kissed her on the cheek without her consent. She further testified that, in
September 2008, another veterinarian at the sales barn told her Kalin had been asking
personal questions about Jordan and had made vulgar comments of a sexual nature about
her. Jordan testified she confronted Kalin and told him she had no interest in him and did
not want any contact from or with him.
¶10 Jordan further testified that, in December 2008, despite her request for no contact,
Kalin sent her a dozen red roses and a card conveying his fond feelings toward her.
Jordan again confronted Kalin, telling him she did not want the gift or any contact with
him. In order to avoid further contact with Kalin, Jordan told her employer she was not
willing to work at the Damascus sales barn any longer.
¶11 Jordan’s sister-in-law Kara--who also worked at the Damascus sales barn--
testified that, in February 2009, Kalin told her he loved Jordan and had been in love with
her from the moment he saw her. He also offered to pay Kara $1,000 per name if she
would identify the person(s) who told Jordan about the sexual comments he had made
about her.
¶12 The following month, Kalin hired a private investigator to find out where Jordan
lived. Kalin told the investigator he was a creditor of Jordan’s, which was not true.
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Pursuant to an internal anti-stalking policy, the investigator contacted Jordan before
disclosing her address to Kalin and, ultimately, did not disclose Jordan’s address to Kalin.
Shortly thereafter, Jordan applied for an Ohio court order of protection.
¶13 Before the Ohio order of protection case was completed, Jordan and David moved
to Montana. Jordan believed the move would stop Kalin from pursuing his interest in
her. However, in December 2009, Jordan received an anonymously-sent, “bizarre”
collage of photographs and word/phrase cut-outs, urging her to split up with David. The
collage was mailed to Jordan’s place of employment in Scobey, Montana, from
Pittsburgh, Pennsylvania. Jordan testified that Pittsburgh is about a 45-minute drive from
the town in which she had lived in Ohio. She also testified she was certain Kalin sent the
collage, based on both the postmark and the collage’s stylistic and substantive content.
The collage included a quote from a Paul Simon song, and Jordan testified Kalin had
quoted literature, poems, and songs in his conversations with her. The collage also
included a reference to Jordan and David being together for 15 months, which Jordan
testified would go back “almost to the day” when she first told Kalin to leave her alone.
¶14 In late January 2010, Jordan and her husband returned to Ohio for a family visit.
In an attempt to prevent Kalin from seeking Jordan out, they told no one but family
members they would be there. Shortly after the visit, however, Kalin waylaid Kara at the
Damascus sales barn and “gloatingly” told her he knew about the visit despite the
families’ efforts to keep it a secret.
¶15 On Valentine’s Day 2010, a gold-plated red rose, inscribed with the words, “I love
you most, Robin,” was delivered to Jordan by mail at her work address in Scobey. The
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rose had been sent anonymously direct from the manufacturer, which would not give
Jordan the name of the sender. Jordan testified she was certain Kalin sent it to her, in part
because he previously had spoken that identical phrase to her.
¶16 Both Jordan and her husband testified that Jordan suffered stress, fear, anxiety,
and sleeplessness as a result of Kalin’s unwanted contacts.
¶17 In his testimony before the District Court, Kalin admitted being fond of Jordan,
hiring a private investigator to find her private phone number and home address in Ohio,
and being aware that she was moving to Montana before she moved. He denied making
any inappropriate sexual inquiries or comments about her, sending her the collage or the
gold-plated rose, or gloating when he spoke with Kara about being aware of Jordan’s
January 2010 trip to Ohio. Kalin also testified about his prior criminal history, which
includes convictions for impersonating a police officer and unlawful restraint of a 17-
year-old “girlfriend.”
¶18 The District Court found Kalin’s denials not credible. It entered findings of fact,
conclusions of law, and an order adopting a permanent order of protection prohibiting
Kalin from threatening, committing acts of violence against, harassing, annoying,
disturbing the peace of, telephoning, emailing, contacting or otherwise communicating
with, or coming within 1,500 feet of Jordan or David. Kalin appeals.
STANDARDS OF REVIEW
¶19 We will overturn a district court’s decision to continue, amend, or make
permanent an order of protection only if the court has abused its discretion. Bock v.
Smith, 2005 MT 40, ¶ 29, 326 Mont. 123, 107 P.3d 488. In reviewing the District
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Court’s order, we review its determination of jurisdiction and interpretations of
constitutional law for correctness. Bunch v. Lancair Intl., Inc., 2009 MT 29, ¶ 15, 349
Mont. 144, 202 P.3d 784; Estate of McCarthy v. Montana Second Jud. Dist. Ct., 1999
MT 309, ¶ 6, 297 Mont. 212, 994 P.2d 1090. We review a district court's findings of fact
to ascertain whether they are clearly erroneous. A finding is clearly erroneous if it is not
supported by substantial evidence, if the trial court misapprehended the effect of the
evidence, or if our review of the record convinces us that a mistake has been committed.
Hidden Hollow Ranch v. Fields, 2004 MT 153, ¶ 21, 321 Mont. 505, 92 P.3d 1185.
DISCUSSION
¶20 1. Did the District Court err in failing to grant Kalin’s motion to dismiss the
petition for an order of protection for lack of jurisdiction?
¶21 Kalin argues that Jordan’s petition for a temporary order of protection was
jurisdictionally flawed because it did not allege more than one act of stalking in Montana,
as he contends is required under § 45-5-220, MCA. He points out that the only act
mentioned in the petition that was alleged to have occurred in Montana was the sending
of the collage to Jordan’s Montana place of employ.
¶22 Any person may file a petition for an order of protection if that person is a victim
of stalking as defined in § 45-5-220, MCA. See § 40-15-102(2)(a), MCA. The offense of
stalking is defined, in relevant part, as follows:
(1) A person commits the offense of stalking if the person purposely or
knowingly causes another person substantial emotional distress or
reasonable apprehension of bodily injury or death by repeatedly:
(a) following the stalked person; or
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(b) harassing, threatening, or intimidating the stalked person, in person or
by mail, electronic communication, as defined in 45-8-213, or any other
action, device, or method.
Section 45-5-220(1), MCA.
¶23 District courts have jurisdiction in all civil matters and cases at law and in equity.
Mont. Const. art. VII, § 4(1); § 3-5-302(1)(b), and (c), MCA. Jordan was a resident of
Montana when she filed her petition for a temporary order of protection. It alleged Kalin
had committed acts in Columbiana County, Ohio, and in Daniels County, Montana, that
justified issuance of a protective order. The petition described the events that had
occurred in Ohio and, in addition, the bizarre collage sent to Jordan’s work address in
Montana. Section 46-2-101(1)(a), MCA, provides that “[a] person is subject to
prosecution in this state for an offense that the person commits while either within or
outside the state . . . [if] the offense is committed either wholly or partly within the state.”
Pursuant to the “broad assertion of jurisdiction” granted by this section, “Montana has
jurisdiction if the offense is committed ‘partly within’ the state.” State v. Kills on Top,
243 Mont. 56, 72, 793 P.2d 1273, 1284 (1990) (citations omitted). Here, the petition
alleges acts committed partly within Montana. There is no requirement, under either
§ 45-5-220 or § 40-15-102, MCA, that repeated acts occur within Montana. We conclude
the allegations of the petition were sufficient to confer jurisdiction on the District Court.
The court did not err in failing to grant Kalin’s motion to dismiss.
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¶24 2. Was there sufficient evidence to support a permanent order of protection?
¶25 Kalin’s claim that the evidence was insufficient on grounds that it did not establish
repeated acts of stalking in Montana is rejected for the reasons discussed under Issue 1.
¶26 Kalin also claims there is not substantial evidence to support the District Court’s
findings that he mailed Jordan the anonymous collage in December 2009 and sent her the
gold-plated rose. The court relied on Jordan’s explanations of why she was certain Kalin
sent the two unwanted and bizarre mailings to Montana. It was within the court’s
function as the finder of fact to assess the credibility of witnesses. See M. R. Civ. P.
52(a). The court’s finding that Kalin’s denials were not credible also was well within its
role as the finder of fact. See In re the Marriage of Nies, 2003 MT 100, ¶ 18, 315 Mont.
260, 68 P.3d 697.
¶27 Having reviewed the record, we conclude substantial credible evidence supports
the District Court’s findings of fact and the findings are not otherwise clearly erroneous.
The evidence was sufficient for the court to issue a permanent order of protection.
¶28 3. Did the District Court punish Kalin for exercising his right to enjoy and defend
his liberty?
¶29 Kalin points out that, under the Montana Constitution, he has the inalienable right
to enjoy and defend his life and liberty. See Mont. Const. art. II, § 3. He contends
Finding No. 9 in the District Court’s order of protection indicates the court was punishing
him for exercising his right to defend his liberty by pursuing an appeal of the temporary
order of protection. Finding No. 9 reads, in relevant part:
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[Kalin’s] opposition to the restraining order that was set to expire at about
year end also demonstrates his interest in [Jordan]. He has diligently
opposed the restraining order even though it had no practical effect on his
life and was set to expire soon, both in Justice Court and then on appeal to
District Court, requiring travel to Montana twice, yet when questioned
about several criminal matters [Kalin] was charged with in Ohio, his
responses indicated he hadn’t had interest in them, in effect ignoring and
blowing them off, letting the lawyers handle it and not caring about the
result.
Kalin also points out that, at the hearing, the District Court stated:
[T]he part that spooks me is that you’ve put all this effort into fighting the
thing with no apparent reason for wanting to do it other than you want to be
able to contact her and not have it in violation of a temporary order of
protection.
Kalin claims the above comments indicate the District Court based its decision to issue an
order of protection on the fact that he pursued his legal right to contest the petition in
both Justice’s Court and in District Court.
¶30 While Kalin is correct that he has a constitutional right to defend himself in court,
we disagree that the District Court’s comments reflect punishment for Kalin’s exercise of
this right. To the extent the court contrasted Kalin’s demonstrated attitude in this case
with his testimony describing his lack of concern about several criminal matters
previously filed against him in Ohio, the court was highlighting the peculiarity of Kalin’s
behavior in choosing to be personally present to fight a Montana protective order, far
from his home, that would expire in a matter of a few months. The court commented in
particular on its observations of Kalin’s behavior in the courtroom, where he watched
Jordan throughout the proceedings. The difference between Kalin’s attitude about Ohio
criminal charges against him--which could directly impact his liberty--and the order of
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protection proceedings in this case--which would only limit his ability to contact Jordan--
was indicative, not of Kalin’s interest in defending himself, but of his intense interest in
pursuing Jordan. In that regard, we disagree with the District Court’s comment that this
is a “borderline” case of stalking. Kalin’s behavior, as described in the evidence
presented to the District Court and as demonstrated at the hearing in this matter,
presented ample grounds for the issuance of a permanent order of protection.
¶31 We hold that Kalin has not established the District Court punished him for
exercising his right to enjoy and defend his liberty.
¶32 Affirmed.
/S/ BETH BAKER
We concur:
/S/ JAMES C. NELSON
/S/ JIM RICE
/S/ PATRICIA COTTER
/S/ BRIAN MORRIS
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