T. Zimbelman v. 9th Jud. District ( 2022 )

10/18/2022
IN THE SUPREME COURT OF THE STATE OF MONTANA
Case Number: OP 22-0461
OP 22-0461
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TODD ZIMBELMAN,
OCT 1 8 2022
Petitioner, Bowen Greenvvooci
Clerk of Supreme Court
State of Montana
v.
ORDER
MONTANA NINTH JUDICIAL DISTRICT
COURT, HON. ROBERT G. OLSON, Presiding,
and BRANDI C. ZIMBELMAN,
Respondents.
On August 18, 2022, Petitioner Todd Zimbelman (Todd) sought a writ of review of
the April 25, 2022 Order Affirming Standing Master's Order on Contentment of the Ninth
Judicial District Court, Pondera County, that affirmed a Standing Master's order that held
Todd in contempt for violating an economic restraining order by failing to notify Respondent
Brandi C. Zimbelman that Todd had received certain crop insurance checks and spending the
proceeds without advising her as to how he intended to spend those proceeds.
On August 23, 2022, we denied Todd's petition on the grounds that it was untimely
filed pursuant to M. R. App. P. 4(5)(a)(i) and Jones v. Mont. Nineteenth Jud. Dist. Ct., 2001
MT 276, ¶ 22, 307 Mont. 305, 37 P.3d 682, as we concluded the petition had been filed more
than 30 days after the date the District Court entered its order finding contempt. Marriage of
Zimbelman, No. OP 22-0461, Order (Mont. Aug. 23, 2022). In that Order, we also pointed
out that we had previously held that any consideration of the crop insurance proceeds would
be reviewable on direct appeal from a final decree in the underlying case. Marriage of
Zimbelman, No. DA 22-0275, Order (Mont. July 26, 2022).
Todd now petitions for rehearing of our Order dismissing his petition for writ, arguing
that we erred because the District Court order was not "entered" when that court filed it on
April 25, 2022. Todd asserts that because the judgment was not set out in a separate
document as required by M. R. Civ. P. 58(a), the judgment would not be considered
"entered" until the District Court either set out the judgment in a separate document or 150
days have run from the entry in the civil docket, as set forth in Rule 58(c)(2). Thus, Todd
maintains that the District Court's Order Affirming Standing Master's Order on Contentment
was not entered until September 22, 2022, giving him until October 24, 2022, to timely file
this petition pursuant to M. R. App. P. 4(5)(a)(i). In other words, although Todd twice
requested that this Court overturn the District Court's order—once on direct appeal and once
via this writ—he now asserts that both matters were filed prematurely as judgment had not
yet been entered in the District Court. Todd admits that under the argument he now raises
via petition for rehearing, his August 18, 2022 petition for writ was "technically" not ready
for consideration by this Court until the District Court's order was "entered" on
September 22, 2022, by operation of Rule 58(c)(2)(B).
Under M. R. App. P. 20, this Court seldom grants petitions for rehearing, and will do
so only upon grounds set forth in M. R. App. P. 20(1). Under Rule 20(1)(a), this Court will
consider a petition for rehearing only if: (i) it overlooked some fact material to the decision;
(ii) it overlooked some question presented by counsel that would have proven decisive to the
case; or (iii) its decision conflicts with a statute or controlling decision not addressed by the
Court. Pertinent to the matter before us, Rule 20(1)(d) further provides, "Absent clearly
demonstrated exceptional circumstances, the supreme court will not grant petitions for
rehearing of its orders disposing of . . . petitions for extraordinary writs."
In this instance, we conclude that Todd has not demonstrated the existence of
exceptional circumstances that warrant rehearing of a petition for extraordinary writ under
Rule 20(1)(d). As noted above, the petition for writ of review is the second time Todd has
brought this District Court order to this Court. On May 25, 2022, he first filed a direct
appeal, which this Court dismissed as irnproper on July 26, 2022. In that appeal, we were
unpersuaded by Todd's assertion that the order at issue was immediately and directly
appealable under M. R. App. P. 6(3)(j). However, we did not leave Todd without a remedy;
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in our Order of dismissal, we held, "Any consideration of the crop insurance proceeds is
reviewable on direct appeal from a final decree in the case." Marriage of Zimbelman, No.
DA 22-0275, Order (Mont. July 26, 2022). And in our Order dismissing the present original
proceeding, we reiterated our holding from the July 26, 2022 Order dismissing Todd's
appeal in our Case No. DA 22-0275 that the issue of the consideration of the crop insurance
proceeds remained reviewable on direct appeal from a final decree in the underlying case.
Prior to the current petition for rehearing, Todd never raised the separate-document
requirement of Rule 58(a) and nothing precluded him from promptly bringing this issue to
our attention. Moreover, as we have twice indicated, Todd is not without remedy as the
issue for which he seeks review—consideration of the crop insurance proceeds— is
reviewable on direct appeal from a final decree in the [underlying] case." For these reasons,
we do not find the requisite exceptional circumstances to warrant rehearing under Rule 20.
IT IS THEREFORE ORDERED that the petition for rehearing is DENIED.
The Clerk is directed to provide copies of this Order to counsel for Petitioner, to
counsel for Brandi C. Zimbelman, and to the Hon. Robert G. Olson, presiding District Judge.
DATED this 1Y day of October, 2022.
Chief Justice
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