Opinion
OP 24-0167
04-02-2024
BRANDY J. ABSHER. Petitioner, v. FOURTEENTH JUDICIAL DISTRICT, MUSSELSHELL COUNTY, THE HON. JUDGE RANDAL I. SPAULDING, Presiding, Respondent.
ORDER
Self-represented Petitioner Brandy J. Absher (formerly known as Brandy J. Persoma) returns to this Court with a petition for a writ of mandamus, arguing that this Court erred in denying her writ of supervisory control over the Fourteenth Judicial District Court, Musselshell County, and Judge Randal I. Spaulding.
Brandy explains that an appeal is not an available remedy and that the District Court is proceeding under a mistake of law. She maintains that this Court erred when it denied her prior writ, "incorrectly claiming issues therein had been addressed in her previous appeal, and in its opinion that medical support [was not] ordered for the [parties'] three sons," in contradiction to the District Court's orders and Montana law. Brandy further explains that the District Court did not issue an order after the September 11, 2020 and December 18, 2020 hearings on her pending motion for contempt. She explains that the District Court has erred, by failing to hold a hearing for her Verified Petition for Civil Contempt of Medical Support and Request for Enforcement, filed on March 2, 2023. Brandy asserts that she has been waiting almost four years "for equalization payments and the parties' sons are denied the medical support allowed to them by law[.]"
By way of background, on May 15, 2020, Brandy appealed the District Court's Findings of Fact, Conclusions of Law, and a Final Parenting Plan (Decree), issued the month before. This Court issued a decision almost three years ago, on April 13, 2021. Marriage of Per soma, No. DA 20-0277, 2021 MT 89N, 2021 Mont. LEXIS 351 (Apr. 13, 2021). We considered Brandy's issue then about pending posttrial motions in the District Court and concluded that the court did not abuse its discretion. Persoma, ¶ 11. Our decision upheld the District Court's Decree and was final. Persoma, ¶¶ 1, 14, 15; M. R. App. P. 19(1).
This Court's memorandum opinion dealt with, as Brandy correctly points out, only the nine posttrial motions concerning custody of the child, not her other posttrial motions about her three teenage sons, and medical care coverage by both parents. Persoma, ¶ 11. We point out that the motions for contempt concerning the equalization payment and the court's hearings occurred in District Court when this appeal was pending before this Court. Pursuant to the Montana Rules of Civil Procedure, any pending motion after a court's judgment is considered posttrial. M. R. Civ. P. 59 and 60. We further point out that any motion filed after the April 2020 Decree is considered posttrial because "entry of final judgment constitutes a final adjudication of the rights and obligations of the parties . . . ." Section 40-4-134, MCA. When the court does not address pending posttrial motions in a written order, then the motions are deemed denied after sixty days. M. R. Civ. P. 59. Brandy provides that she filed the motions in 2020, and the court held two hearings in 2020. She adds that she filed another motion for contempt in 2023. The' court did not issue any written order, and now, all of her motions are deemed denied with the lapse of time.
This Court secured a more recent case register of actions from the District Court. Brandy filed multiple motions before, during, and after her appeal. Since the time that Brandy filed her May 2020 notice of appeal, there have been sixty-nine other filings until her recent Petition for Writ of Mandamus, filed last month.
A writ of mandamus, also known as mandate, is specific and statutorily driven. To state a claim for mandamus, a party must show entitlement to the performance of a clear legal duty by the party against whom the writ is directed and the absence of a plain, speedy, and adequate remedy at law. Section 27-26-102. MCA; Smith v. Missoula Co., 1999 MT 330, ¶ 28, 297 Mont. 368, 992 P.2d 834.
Brandy is not entitled to a writ of mandate. She has not demonstrated a clear legal duty that the court must act, given that more than three years have elapsed. Section 27-26-102, MCA. Brandy cannot revive the underlying proceeding with her repeated filings of various motions over time. Accordingly, IT IS ORDERED that Brandy's Petition for Writ of Mandamus is DENIED and DISMISSED.
IT IS FURTHER ORDERED that the Clerk of the Supreme Court is directed to CLOSE this matter as of this Order's date.
The Clerk is also directed to provide a copy of this Order to: the Honorable Randal I. Spaulding, Fourteenth Judicial District Court; Barb Halverson, Clerk of District Court, under Cause No. DR 16-02; counsel of record; and Brandy Absher personally.