Background
Neighbors Lynnette Sims and Justin Vermace became embroiled in a property-line dispute after a survey showed that Vermace’s truck, gate, and garden fence encroached on Sims’s property. The dispute produced several confrontations, including an incident in which Vermace swore at Sims and her companion while shining a flashlight at them. Trail-camera footage later showed Vermace near the property line carrying a pistol and a flashlight.
Sims obtained a temporary order of protection, and the District Court later conducted a hearing at which the parties and several neighbors testified. The court found grounds for a five-year order of protection and advised that its terms might require refinement. After subsequent motions, the court amended the order to require Vermace generally to remain 100 feet from Sims, regulate encounters on their shared road, prohibit him from carrying a firearm within 100 feet of the property line, and require violence counseling.
Vermace appealed, arguing that the District Court relied on new, disputed allegations when amending the order without giving him another hearing. He asserted that the amendment procedure violated the protection-order statutes and his due-process rights and that a motion under Montana Rule of Civil Procedure 59 could not expand the order based on post-hearing events.
The Court’s Holding
The Montana Supreme Court affirmed. It held that Vermace received the required hearing before the order of protection was issued and failed to object when the District Court explained that it might later refine the order’s terms. Because Vermace participated in and acquiesced to that procedure, he could not obtain reversal based on the lack of another hearing.
The Court also concluded that substantial credible evidence presented at the hearing supported the amended restrictions. That evidence included Vermace’s confrontations near the property line, his presence there with a pistol, and incidents involving his truck on the shared road. The amendments fell within the District Court’s statutory authority, and any error in considering Sims’s Rule 59 motion beyond correcting an improperly mutual provision was harmless.
The Court distinguished precedent involving an order expanded to cover a new person who lacked notice and an opportunity to defend herself. Vermace, by contrast, knew that an order was sought against him, appeared at the hearing, presented a defense, and did not object to the contemplated post-hearing amendment process.
Key Takeaways
- A party generally cannot challenge on appeal an amendment procedure in which the party participated or to which the party failed to object.
- Due process was satisfied because Vermace had notice, appeared at a hearing on the protection order, and had an opportunity to defend himself.
- The evidence supported restrictions requiring distance from Sims, regulating encounters on the shared road, limiting firearms near the property line, and requiring violence counseling.
- The memorandum opinion is noncitable and does not serve as precedent under the Montana Supreme Court’s Internal Operating Rules.
Why It Matters
The decision illustrates that Montana courts may tailor an order of protection to address recurring risks created by neighboring properties and a shared roadway, provided the restrictions are supported by evidence and fall within statutory authority. It also underscores the importance of timely objections: acquiescence in a proposed amendment process can foreclose a later procedural challenge.
Because the Court designated the decision as a noncitable memorandum opinion, it resolves the parties’ dispute but does not establish precedent for future cases.