SHAWNA JOHNSON v. MALACHI JOHNSON (2024)

Justice Laurie McKinnon delivered the Opinion of the Court.

¶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 Shawna Johnson, (Shawna), appeals the decision of the Fourth Judicial District Court denying her petition for a temporary order of protection (TOP).

¶3 Shawna and Malachi Johnson, (Malachi), married in 2017 and have three children between the ages of one and six years old. Shawna also has a sixteen-year-old son, C.J., from a previous relationship. In August of 2022, Shawna and her children moved from Oregon to Huson, MT. Malachi remained in Oregon where he continued to work while their house in Oregon was being sold. On December 22, 2022, Malachi returned to Montana to celebrate the holidays with his family. On the evening of December 23, 2022, Malachi and Shawna got into an argument. Shawna claims that during this argument Malachi became irritated with her and she went to their bedroom to lay down and get away from him. Malachi followed her into the bedroom, yelled at her, and grabbed her phone. Shawna also alleges that Malachi grabbed her foot and began to pull her off the bed while she was holding their one-year-old child, O.J. Malachi then left the room with Shawna's phone.

¶4 Shawna claims that later that night Malachi returned to their bedroom, got into the bed next to her, and began biting her neck causing her pain. Shawna promptly left the room but Malachi followed her and began to verbally assault her. Later that evening, Shawna said Malachi hit her in the face with a soiled diaper and then broke her phone. Shawna next locked herself and the children in a bedroom, but Malachi began to kick the door in.

¶5 Shawna testified that later that night Malachi asked for a divorce. However, Shawna had already filed for a divorce on December 12, 2022, and so offered to get him the paperwork to sign. Malachi followed her upstairs to get the paperwork and allegedly assaulted her by pulling off her wedding ring. Shawna left the room and went back downstairs where she observed that Malachi had laid out all his guns on the kitchen table. Shawna testified she did not know why he had taken the guns out but that she feared for her, and her children's safety, and decided they needed to leave.

¶6 Shawna was able to leave with the children. When she returned to the house later, Malachi was not there, and he eventually returned to Oregon. On January 14, 2023, Shawna filed a Sworn Petition for Temporary Order of Protection and Request for a Hearing. The District Court granted the TOP on January 19, 2023, and set a hearing for February 2, 2023. The hearing was continued two times but was ultimately held on April 4, 2023, and April 11, 2023.

¶7 During the hearing, B.J.’s first grade teacher testified and described B.J's change in behavior. Shawna also testified about the alleged abuse. The District Court reviewed exhibits including photos Shawna had taken of damage throughout the house. After reviewing all the evidence, the District Court denied Shawna's Petition on May 5, 2023. Following this decision, Shawna filed in the District Court an Emergency Motion to Stay Pending Appeal and Brief in Support and a Notice of Appeal with this Court. Malachi failed to respond so the District Court reinstated the TOP on June 6, 2023.

¶8 On appeal, Shawna argues that the District Court abused its discretion when it denied her Petition because it “made findings and reached conclusions that are not supported by the record ․” Additionally, Shawna argues that the District Court erred when it concluded that the evidence did not support granting an order of protection for the parties’ children.

¶9 “This Court 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. When determining whether a district court has abused its discretion, the question “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.

¶10 In its order denying Shawna's Petition, the District Court found that after reviewing all the evidence, Shawna and her children were no longer in danger of harm from Malachi. The District Court noted that on the evening of December 23, 2022, Malachi had been drinking and became aggressive towards Shawna. However, the District Court also noted some discrepancies between Shawna's written account of events in her Petition and testimony she provided to the court. For example, in her Petition she wrote, when asked whether she had been threatened with a gun, that “[h]e had all the guns out on the dining room table and said he wasn't afraid of prison.” However, during cross-examination, Shawna stated that Malachi had not threatened her with a gun. The court also noted that “further questioning suggested that the guns were to be used by Malachi and the oldest child who had planned to go shooting in the morning.”

¶11 Additionally, Shawna admitted during cross-examination that within 24 hours of the events detailed in her Petition, she had messaged Malachi and sent him photos of their Christmas tree, their children standing in front of the Christmas tree, and texted him goodnight. Shawna continued to message Malachi between December 23, 2022, and after she filed her Petition on January 14, 2023. Some of these messages included a text on December 27, 2022, wishing him a happy anniversary, wishing him a happy New Year, and texting him on January 17, 2023, to remind him that it was C.J.’s birthday. The court noted that “[w]ithin days after the pre-Christmas incident in Huson, the parties had resumed civil and even pleasant communication” and concluded that the messages showed no “evidence [of] threats or threatening behavior by Malachi.” Finally, the District Court found that there was no evidence that Malachi had visited Montana or Shawna “or even been within hundreds of miles of her” since the events that occurred on December 23, 2022.

¶12 The purpose of a temporary order of protection is “to protect victims from the danger of harm at the hands of an assaultive person or stalker.” Lear v. Jamrogowicz, 2013 MT 147, ¶ 27, 370 Mont. 320, 303 P.3d 790. A temporary order of protection is intended to be a temporary measure until the court can conduct a hearing to “determine whether good cause exists for the temporary order of protection to be continued, amended, or made permanent.” Section 40-15-202(1), MCA. For a court to make a temporary order of protection permanent it must determine whether, “to avoid further injury or harm, the petitioner needs permanent protection.” Section 40-15-204(1), MCA. Factors to be considered include “the respondent's history of violence, the severity of the offense at issue, and the evidence presented at the hearing ․” Section 40-15-204(1), MCA.

¶13 The District Court heard testimony and reviewed evidence regarding the events leading up to Shawna filing her Petition. The court concluded that “upon consideration of the evidence before it, the substance of the evidence against Malachi does not rise to the level necessary to issue an Order of Protection against him ․” Additionally, the court found that Shawna had not demonstrated by a preponderance of the evidence that she was “in reasonable apprehension of bodily injury,” as required by § 40-15-102(1)(a), MCA. In its order, the District Court specifically noted that while it did not condone Malachi's behavior, it did “not rise to the level of conduct necessary for the issuance of an Order of Protection.” Namely, the court noted “Malachi has not made any threats to Shawna since then, or even been within hundreds of miles of her in Montana.”

¶14 When we review a trial court's decision for an abuse of discretion, the question is not whether this Court would have reached the same decision as the District Court but “whether the trial judge acted arbitrarily without conscientious judgment or exceeded the bounds of reason.” Lockhead, ¶ 12. Based on the record and the District Court's reasoning provided within its order, we conclude the District Court did not act arbitrarily and without conscientious judgment; nor did it exceed the bounds of reason when it denied Shawna an order of protection. The District Court reminded Shawna that she could file another petition should circumstances change.

¶15 Shawna next argues that the District Court erred when it concluded the evidence did not support granting an order of protection for the parties’ children. In its order denying an order of protection for the parties’ children, the District Court concluded that although the events were chaotic and likely traumatic for the children, the evidence did not support granting an order of protection. Shawna argues that the District Court erred when it denied the order of protection because it cited § 40-15-102(3), MCA, rather than § 40-15-204(4), MCA. Section 40-15-102(3), MCA, however, was appropriate for the court to cite because it sets forth that a parent may apply for a temporary order of protection on behalf of a minor. Section 40-15-204(4), MCA, also applicable, 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.

As § 40-15-204(4), MCA, makes clear, an order of protection for a family member is discretionary and only if the restriction is included must the respondent be restrained from having contact with the minor.

¶16 Here, the District Court found the evidence did not support granting an order of protection. Specifically, it found that Shawna had not demonstrated by a preponderance of the evidence that the parties’ children were in danger of abuse from Malachi or that Malachi presented a reasonable threat to their safety.

¶17 We conclude the District Court did not abuse its discretion when it denied Shawna's petition for an order of protection for herself and the parties’ children.

¶18 We have determined to decide this case pursuant to Section I, Paragraph 3(c) of our Internal Operating Rules, which provides for memorandum opinions. This appeal presents no constitutional issues, no issues of first impression, and does not establish new precedent or modify existing precedent.

¶19 Affirmed.

LAURIE McKINNON

We concur: JAMES JEREMIAH SHEA INGRID GUSTAFSON DIRK M. SANDEFUR JIM RICE