Marriage of Stone ( 2021 )

03/09/2021
IN THE SUPREME COURT OF THE STATE OF MONTANA
Case Number: DA 21-0094
DA 21-0094
FILED
IN RE THE MARRIAGE OF: MAR 0 9 2021
E3ovven Greenw000
CHAD STONE, Clerk of supreme
Coun
State of Montana
Petitioner and Appellant,
ORDER
v.
LINDSEY STONE,
Respondent and Appellee.
Chad Stone has filed a verified Petition for an Out-of-Time Appeal, indicating that
he improperly filed a timely Notice of Appeal with the Park County District Court.
This Court is familiar with the underlying contentious dissolution proceeding. See
Marriage of Stone, No. DA 17-0394, Order dismissing appeal because of mediated
settlement (Mont. Oct. 2, 2017); Marriage of Stone, No. DA 17-0728, 2018 MT 178N,
2018 Mont. LEXIS 238(Jul. 17, 2018), and Marriage ofStone, No. DA 18-0692,2019 MT
232N,2019 Mont. LEXIS 540(Oct. 1, 2019).
M. R. App. P. 4(6) allows this Court to grant an out-of-time appeal "Mr' the
infrequent harsh case and under extraordinary circumstances amounting to a gross
miscarriage ofjusticell"
Chad provides that he is appealing the District Court's decision denying his petition
for a temporary restraining order against his biological parents, Deverett and Linda Butrick
(collectively, the Butricks), conceming their access to his child. Chad explains that he
broke ties with his parents because of his abusive childhood experiences and that he does
not want his son to have any further relationship with them. He states that the hearing
occurred on January 19, 2021, yet he does not provide a copy of the court's written
decision.
A party may appeal a final decision of denying a petition for a restraining order in
a civil case, pursuant to M.R. App. P. 6(3)(e). See § 40-15-302(1), MCA. We decline to
do so here because the parties are not properly before this Court.
Some context is important here. As Chad provides, he did file his documents with
the District Court initially. Attached to Chad's Petition for an Out-of-Time Appeal are the
documents filed in District Court and then received on January 25, 2021, with this Court.
The title ofthis filing lists: "Notice of appeal; Request for new judge; Emergency Motion
for Temporary Restraining Order against [the Butricks] pending hearing; Motion for
Removal of Judge from this case and any other case [he has] in Park County; Motion for
immediate change to child's residential schedule; Motion for new trial/independent case
review; Motion for a new parenting evaluator; and Motion for accountability of Brenda
Gilbert, Linda Cantin, and Karl Knuchel." Upon review of his attachments, on February
2, 2021, the District Court stayed the underlying proceeding because the District Court,
based on its interpretation of substitution ofjudge from Chad's pleading, sent the matter to
this Court for review of disqualification of judge. This Court dismissed his request as
evidenced by Chad's copy ofthe Order. Marriage ofStone, No.PR 21-0001, Order(Mont.
Feb. 5, 2021).
Lack of service prohibits this case to proceed on appeal. We observe that Chad
handwrote the Butricks' names on his filed pleadings and crossed-out his former wife's
name, Lindsey Stone. Chad's Petition for an Out-of-Time Appeal was not served upon the
parties, the Butricks. The Butricks were not included in the Certificate of Service. M. R.
App. P. 10(2). This lack of service was highlighted in a January 26, 2021 letter from the
Clerk ofthe Supreme Court when we handled the request for disqualification ofjudge. We
further observe that the District Court included all names on its Orders; however, it is not
clear whether the Butricks received any legal notice to be a party in the underlying case.
Chad may seek a temporary restraining order against other individuals, possibly in a
separate proceeding, but he needs to perfect service to all parties.
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We secured a copy of the court's register of actions. The District Court has
scheduled a hearing on all pending motions for March 11, 2021. Instead of perpetuating
this incorrect attempt at an appeal, we choose to end it. We conclude that Chad is not
entitled to pursue this appeal. Therefore,
IT IS ORDERED that Chad's Petition for an Out-of-Time Appeal is DENIED and
DISMISSED.
The Clerk of the Suprerne Court is directed to close this case as of the date of this
Order.
The Clerk is also directed to provide a copy of this Order to counsel of record and
to Chad Stone personally.
DATED this — day of March, 2021.
Chief Justice
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