Keller v. Trull, DA 06-0317.

• Decision Date: 08 May 2007
• Docket Number: No. DA 06-0317.,DA 06-0317.
• Citation: 158 P.3d 439,2007 MT 108
• Parties: In the Matter of Kim KELLER and Seth Knuth, Petitioners and Respondents, v. Michael TRULL, Respondent and Appellant.
• Court: Montana Supreme Court

158 P.3d 439

2007 MT 108

In the Matter of Kim KELLER and Seth Knuth, Petitioners and Respondents, v. Michael TRULL, Respondent and Appellant.

No. DA 06-0317.

Supreme Court of Montana.

Submitted on Briefs November 28, 2006.

Decided May 8, 2007.

For Appellant: Carolyn Gill, Plains, Montana.

For Respondents: Seth Knuth (pro se), Kimberly Keller (pro se), Thompson Falls, Montana.

Justice PATRICIA O. COTTER delivered the Opinion of the Court.

¶ 1 In November 2005 Kim Keller, on behalf of her then fourteen-year old son Seth Knuth, petitioned the Twentieth Judicial District Court for a temporary order of protection (TOP) against another minor, Michael Trull. In the Petition, Keller asserted that Trull repeatedly assaulted and intimidated her son on the school grounds. The District Court issued the TOP on November 28 and subsequently, at Keller's request, issued an order making the TOP permanent. Trull appeals. We reverse and remand.

ISSUE

¶ 2 The dispositive issue on appeal is whether the District Court abused its discretion by making the temporary Order of Protection permanent.

FACTUAL AND PROCEDURAL BACKGROUND

¶ 3 On November 23, 2005, Kim Keller petitioned the District Court for a temporary order of protection on behalf of her then fourteen-old son, Seth Knuth. In the Petition, Keller alleged that Michael Trull, a minor, repeatedly assaulted and intimidated her son on the grounds of Thompson Falls Junior High School. She also asserted that Trull created a risk of death or serious injury to her son. The District Court issued the TOP on November 28. Pursuant to the TOP, Trull was prohibited from committing further abusive or threatening acts toward Knuth and was required to stay at least 1,500 feet away from both Knuth and Keller. A hearing was scheduled for December 6, 2005, to determine whether to dismiss, amend or make permanent the TOP. Notably, there is no indication that the TOP, which contained notice of the December 6 hearing, was formally served on Trull or any family member or other designated representative. Keller and Knuth later asserted that they had served Trull with the TOP, but Trull and his family denied receipt of service.

¶ 4 Trull was also scheduled to attend another hearing on December 6 in the same District Court in a criminal juvenile matter. Trull did not attend either of the hearings however, because at some time between November 15 and December 6, he was involuntarily committed to the Lake County Group Youth Guidance Home. The day before the hearing the youth court probation officer notified both the county attorney and Trull's appointed counsel in the criminal juvenile matter that he — the probation office — would be unable to attend the December 6 criminal hearing. Trull's court-appointed attorney then contacted Trull at the Youth Home and they agreed it would be best to seek a continuance of the December 6 hearing. When the criminal proceeding then came before the court early the following morning, Trull's court-appointed attorney informed the court of the scheduling problem, and the matter was rescheduled by the court for December 20. However, by the time the TOP hearing came before the same court later that morning, Trull's counsel for the criminal proceeding had left the courtroom. After acknowledging for the record that Trull could not attend the TOP hearing, the District Court proceeded to make the TOP permanent, despite Trull's absence and lack of representation.

¶ 5 On January 24, 2006, Trull's court-appointed attorney in the criminal juvenile proceeding moved the District Court to reopen the TOP matter and schedule a hearing to allow Trull to show cause why he should be relieved from the order of protection issued to Keller and Knuth. In that motion, counsel argued that in addition to being unaware of the TOP hearing, Trull was completely dependent on an adult to ensure his presence and that Trull's parents were unaware of the hearing as well. Counsel maintained that the court should have appointed a guardian ad litem and continued the hearing until a time that Trull's interests could be properly and fairly represented.

¶ 6 Keller opposed the motion to reopen. On February 3, the District Court denied the motion to reopen the matter noting that Keller and Knuth had followed procedure and met the legal requirements in having Trull served. Trull filed a timely appeal.

STANDARD OF REVIEW

¶ 7 The decision to continue, amend or 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. Bock v. Smith, 2005 MT 40, ¶ 29, 326 Mont. 123, ¶ 29, 107 P.3d 488, ¶ 29.

DISCUSSION

¶ 8 Trull argues that the District Court abused its discretion when it made the TOP permanent because he was neither present nor represented at the December 6 court proceeding and that the December 6 proceeding did not constitute a hearing as required by § 40-15-202, MCA. Trull maintains that the District Court should have appointed a guardian ad litem for him as required by § 40-15-102(4), MCA.

¶ 9 Section 40-15-102(4), MCA, requires that in cases where a petition for an order of protection is filed, a guardian must be appointed for a minor respondent when such is required by M.R. Civ. P. 17(c) (Rule 17(c)). Rule 17(c) states, in part:

The court shall appoint a guardian ad litem for an infant or incompetent person not otherwise represented in an action or shall make such other order as it deems proper for the protection of the infant or incompetent person, or in any case where the court deems it expedient a guardian ad litem may be appointed to represent an infant or incompetent person, even though the infant or incompetent person may have a general guardian and may have appeared by that...