Background
Sandra A. Gemar sought a permanent order of protection against her ex-husband, Richard K. Gemar, Jr., following what she described as an extensive history of abuse, stalking, and harassment that escalated with his substance abuse. The parties have a minor child, A.N.G., and a history of litigation, including a Final Parenting Plan from 2020 that grants Richard one hour of supervised visitation every other week. In her petition, Sandra alleged Richard continued to stalk her, had moved into a house just two doors away, and had recently yelled at her from his residence over several days. She also cited a past incident where Richard held her hostage in his truck and a recent guilty plea by Richard for violating a previous order of protection.
After a hearing where the parties gave conflicting testimony and Richard admitted to prior domestic violence, the Nineteenth Judicial District Court granted a Permanent Order of Protection. The order required Richard to stay 1,500 feet away from Sandra and their child, but specified that visitation should continue as permitted in the 2020 Final Parenting Plan. Richard appealed, arguing that the terms of the new order made it impossible to exercise his visitation rights and that his due process rights were violated. He also attempted to collaterally attack the 2020 Parenting Plan.
The Court’s Holding
The Montana Supreme Court affirmed the district court’s decision. The Court reviewed the lower court’s order for an abuse of discretion and found none. A key factor in the decision was Richard’s failure to provide a proper transcript of the district court hearing, which limited the Supreme Court’s review and required it to defer to the lower court’s findings. The Court found that there was substantial credible evidence of a “long-running cycle of domestic violence, including repeated instances of harassment of Sandra by Richard.”
The Court rejected Richard’s arguments, clarifying that the protection order and the parenting plan were not in conflict. The district court did not replace the child custody proceeding with the protection order; rather, it explicitly incorporated the existing Final Parenting Plan. Richard was still permitted the limited, indirect contact with Sandra necessary to arrange visitation, which must be conducted through the designated visitation supervisor. The Court concluded that the district court acted within its discretion to protect Sandra from further harm and did not violate Richard’s due process rights.
Key Takeaways
- A court may issue a permanent order of protection based on a respondent’s history of violence and evidence of ongoing harassment to prevent future harm.
- An order of protection can coexist with a separate parenting plan; it does not have to supplant a child custody proceeding and can incorporate the plan’s terms for visitation.
- An appellant’s failure to provide a proper court transcript severely limits the scope of appellate review, forcing the higher court to rely on the lower court’s written findings.
- A no-contact order does not necessarily prohibit the indirect communication required to coordinate child visitation, provided it is done through a court-approved third party as specified in a parenting plan.
Why It Matters
This case illustrates how courts navigate the difficult intersection of domestic violence and child custody matters. It affirms that a person’s right to be protected from abuse can be enforced without completely extinguishing the other parent’s court-ordered visitation rights. By upholding a protection order that explicitly defers to a pre-existing parenting plan, the Court provides a clear model for lower courts on how to balance safety with parental rights. The decision underscores that these two legal instruments are not mutually exclusive and can function together. It also serves as a stark procedural warning to litigants: failing to provide a complete record on appeal is likely to be fatal to one’s case, as appellate courts will not second-guess a trial court’s factual findings without a transcript to review.