Opinion
OP 21-0545
11-09-2021
CHELSIE LAEL KENNEDY, Petitioner, v. v. MONTANA FIRST JUDICIAL DISTRICT COURT, LEWIS & CLARK COUNTY, HON. KATHY SEELEY, Presiding, Respondent.
ORDER
Petitioner Chelsie Lael Kennedy seeks a writ of supervisory control directing the First Judicial District Court, Lewis and Clark County, to vacate its October K 2021 Order for the Immediate Return of the Children to the Court's Jurisdiction; Amended Interim Parenting [Plan]; Order to Show Cause in its Cause No. CDR-2019-567. Petitioner alleges that supervisory control is necessary and that this Court must vacate the District Court's order because the court failed to hold a hearing within 21 days of executing the amended interim parenting plan as required by § 40-4-220(2)(b), MCA.
Supervisory control is an extraordinary remedy that is sometimes justified when urgency or emergency factors exist making the normal appeal process inadequate, when the case involves purely legal questions, and when the other court is proceeding under a mistake of law and is causing a gross injustice, constitutional issues of state-wide importance are involved, or. in a criminal case, the other court has granted or denied a motion to substitute a judge. M. R. App. P. 14(3). Whether supervisory control is appropriate is a case-by-case decision. Stokes v. Mont. Thirteenth Judicial Dist. Court, 2011 MT 182, ¶ 5, 361 Mont. 279, 259 P.3d 754 (citations omitted).
Here, Kennedy asserts this matter is appropriate for supervisory control because the amended interim parenting plan is not readily appealable and the issue presented is purely one of law. However, in this instance supervisory control and the relief Kennedy seeks will not remedy the harm she alleges.
According to Kennedy's petition, Kennedy and Jeremiah Kenneth Rosenbaum, who is a party to the underlying case, were parenting two children in accordance with an interim parenting plan entered on March 9, 2021. That plan provided that the children would primarily reside with Kennedy in the family home in Helena, with Rosenbaum exercising parenting on Wednesdays and alternate weekends. However, in September 2021, Kennedy left the state with the children and ceased making them available to Rosenbaum for his parenting time.
Rosenbaum then moved the District Court under § 40-4-220(1), MCA, for an amended interim parenting plan that provided for the children to reside primarily with him in the family home in Helena, with Kennedy to have parenting time on Wednesdays and alternate weekends provided that she return to Helena.
On October 1, 2021, the District Court granted Rosenbaum's motion. Pursuant to § 40-4-220(2)(b), MCA, the court set a hearing within 21 days for the parties to show cause as to why that interim parenting plan should not remain in effect. However, counsel for Rosenbaum advised that she was out of state until October 25, 2021. The court then reset the hearing for December 1, 2021-61 days after the entry of the amended interim parenting plan-over Kennedy's objection.
Kennedy bases her petition on the District Court's failure to hold a show cause hearing within 21 days of ordering an interim parenting plan, as required by § 40-4-220(2)(b), MCA. She points to two cases in which this Court granted writs of supervisory control after district courts failed to hold show cause hearings in accordance with § 40-4-220(2)(b), MCA: Dreckman v. Mont. Seventh Judicial Dist. Court, No. OP 17-0547, 390 Mont. 423, 410 P.3d 175 (Oct. 24, 2017) and Berreth v. Eleventh Judicial Dist Court, No. OP 15-0064, 378 Mont. 538, 348 P.3d 671 (Feb. 3, 2015). However, in both of those cases, the courts failed to set show cause hearings at all. In this case, the court has set a hearing, albeit over 21 days after entry of the amended interim parenting plan.
While circumstances may exist where supervisory control would be appropriate for a case in which a court sets a hearing beyond the 21 days prescribed by § 40-4-220(2)(b), MCA, this is not that case. Kennedy did not petition for a writ of supervisory control until nearly a month after the District Court issued its order resetting the show cause hearing to December 1, 2021. Kennedy's November 1, 2021 petition was itself beyond the 21-day timeframe, thus the alleged harm that Kennedy purports to avoid with this petition had already occurred. Although Kennedy captioned her petition as further requesting a stay, she made no argument as to a stay in the petition itself, nor did Kennedy request or offer sufficient grounds for expedited consideration.
Under M. R. App. P. 14(7)(a), upon the filing of a petition for writ, this Court may either order a summary response or dismiss the petition without ordering a response. If we were to order a response in this instance, providing Rosenbaum and the District Court time to respond and for this Court to then dispose of the matter would likely delay resolution of this matter beyond December 1, 2021, thus further delaying the show cause hearing.
While we do not look, favorably upon district courts failing to comply with statutory timeframes, we recognize that in this instance the District Court attempted to hold the show cause hearing within 21 days as § 40-4-220(2)(b), MCA, requires. The court then reset the hearing to what we can reasonably presume was the earliest available date. In this instance, we conclude supervisory control is not warranted.
Therefore, IT IS ORDERED that the petition for writ of supervisory control is DENIED and DISMISSED.
The Clerk is directed to provide immediate notice of this Order to counsel for Petitioner, all counsel of record in the First Judicial District Court, Lewis and Clark County, Cause No. CDR-2019-567, and the Honorable Kathy Seeley, presiding Judge.