Ducharme v. Brick

1

2024 MT 288N

RICHARD DUCHARME, Petitioner and Appellee, v. JENNIFER BRICK, Respondent and Appellant.

No. DA 23-0436

Supreme Court of Montana

December 3, 2024

Submitted on Briefs: October 23, 2024

APPEAL FROM: District Court of the Eighteenth Judicial District, In and For the County of Gallatin, Cause No. DR-23-359D Honorable Andrew Breuner, Presiding Judge

For Appellant: Jennifer Brick, Self-Represented, Bozeman, Montana

For Appellee: Matthew A. Dodd, Dillon A Post, Dodd Law Firm P.C., Bozeman, Montana

OPINION

Laurie McKinnon Justice

¶1 Pursuant to Section I, Paragraph 3(c), Montana Supreme Court Internal Operating Rules, this case is decided by memorandum opinion and shall not be cited and does not serve as precedent. Its case title, cause number, and disposition shall be included in this Court's quarterly list of noncitable cases published in the Pacific Reporter and Montana Reports.

¶2 This is Jennifer Brick (Brick)'s sixth appearance before this Court related to parenting proceedings and associated criminal actions in the Bozeman Municipal Court and Eighteenth Judicial District Court, Gallatin County. The instant appeal arises from an Order of Protection entered against Brick on behalf of minor children S.D. and B.D though Brick also seeks to relitigate several issues already decided by this Court. The District Court is affirmed.

¶3 Brick and Richard DuCharme (DuCharme) are the parents of S.D and B.D. They began their dissolution in 2017. Their legal history is extensive, and most of Brick's arguments and alleged facts are based on separate proceedings not before this Court. The facts recited herein are limited to those present in the record for the Order of Protection, which is a separate district court matter from the parenting plan and any criminal charges. In the years since the dissolution, Brick repeatedly refused to honor court-ordered parenting time, and the District Court has been extensively involved in enforcement. In June 2023, the District Court resolved yet another dispute about summer parenting time. Three days later, Brick emailed S.D. and told her that "her father was keeping the girls illegally and to come home at once." The District Court noted that this was not the first time Brick had "effectively gaslight[ed] the girls" about who had legal custody and that the same occurred during summer and Thanksgiving of 2022. Brick also threatened to prevent S.D.'s participation in AP classes and competitive swimming.

¶4 On June 20, 2023, Brick's behavior escalated to physical violence. Brick drove to S.D.'s swim practice and demanded that S.D. come with her. When S.D. refused, Brick grabbed S.D.'s hair and punched her in the stomach and arm. S.D. escaped and immediately drove to the Bozeman Public Safety Center. Brick was charged with Partner Family Member Assault. Based on these actions, DuCharme filed for a temporary order of protection on behalf of both S.D. and B.D. DuCharme stated that he believed that Brick would continue to emotionally abuse and physically harm S.D. and B.D. if Brick were allowed contact. The District Court granted a temporary restraining order and set a hearing for July 12.

¶5 At the hearing, S.D. testified to ongoing emotional abuse as well as the physical assault. S.D. requested a two-year order of protection and expressed concern that Brick would focus her emotional abuse on B.D. once S.D. graduated and left the community. The District Court granted a two-year Order of Protection as to S.D. and a six-month Order of Protection as to B.D.^[1] While the District Court initially concluded that it did not have sufficient evidence to grant B.D.'s Order of Protection beyond that initial period, it later extended the duration indefinitely pending appeal based on Brick's subsequent violation of the Order.

¶6 Brick presents eight issues on appeal. They include judicial bias; "legal entrapment"; "misuse" of district court orders; due process violations; prosecutorial misconduct; ineffective assistance of counsel; and erroneous and excessive sentencing. Based on this Court's understanding of these arguments, we address three main categories: issues related to the Order of Protection, issues related to Brick's criminal proceedings, and issues related to judicial bias. 1. Order of Protection

¶7 Brick's arguments turn on a fundamental misunderstanding of the legal difference between an order of protection and a termination of parental rights. She repeatedly characterizes the relevant proceedings as a "surprise termination of parental rights," but this is incorrect. Termination of parental rights is an entirely separate legal issue giving rise to entirely different legal processes and consequences. No termination proceedings were initiated in this case.

¶8 The relevant legal question, then, is whether the District Court abused its discretion in granting the permanent Order of Protection. We will not overturn a district court's decision to continue, amend, or make permanent an order of protection absent an abuse of discretion. Lockhead v. Lockhead, 2013 MT 368, ¶ 12, 373 Mont. 120, 314 P.3d 915. "The question under this standard is not whether we would have reached the same decision as the trial judge, but whether the trial judge acted arbitrarily without conscientious judgment or exceeded the bounds of reason." Lockhead, ¶ 12 (citation omitted).

¶9 An order of protection is appropriate when "on the basis of the respondent's history of violence, the severity of the offense at issue, and the evidence presented at the hearing, [the court] determine[s] that to avoid further injury or harm, the petitioner needs permanent protection." Section 40-15-204(1), MCA. Here, based on the history of emotional and physical abuse, and S.D.'s testimony, which the District Court found credible, the District Court concluded that it had "no reasonable doubt that this matter requires the order of protection . . . to prevent further abuse and harm." This was not an abuse of discretion. We also note that the District Court was careful not to extend B.D.'s Order of Protection beyond what was supported by the evidence presented at the time.

¶10 Additionally, Brick argues vehemently that an order of protection cannot be granted for a minor child without also being granted for the parent. Section 40-15-204(4), MCA, provides:

An order of protection may include restraining the respondent from any other named family member who is a minor. If this restriction is included, the respondent must be restrained from having contact with the minor for an appropriate time period as directed by the court or permanently if the court finds that the minor was a victim of abuse, a witness to abuse, or endangered by the environment of abuse.

While it would also have been possible for DuCharme to seek an order of protection with S.D. and B.D. named as petitioners themselves, it is certainly within the purpose of the remedy that a parent can apply for an order of protection on behalf of their minor child. See § 40-15-102, MCA ("A parent, guardian ad litem, or other representative of the petitioner may file a petition for an order of protection on behalf of a minor petitioner against the petitioner's abuser."). Thus, while DuCharme's petition may...