03/05/2024

IN THE SUPREME COURT OF THE STATE OF MONTANA Case Number: DA 23-0442

DA 23-0442

IN RE THE MAkRIAGE OF: FLED MAR - 5 2024 ABRIELLE ELIZABETH HOLMQUIST, BOWEM Greenwood Clerk of Supreme Court State of Montana Petitioner and Appellee, ORDER and GIOVANNI MARINO, Respondent and Appellant.

Self-represented Appellant Giovanni Marino has filed an "Emergency Motion to Stay Orders pending Supreme Court Appeal[.]" He states that he requests a stay of the underlying "Petitioner's proposed parenting plan and return[ing] the minor child, AEBH, to Respondent pending Supreme Court Appeal." Marino includes several attachments with this Motion. This Court notes that no response has been filed.

This Court received the Flathead County District Court record on September 19, 2023, and Marino rpfiled his opening brief, after correcting certain deficiencies on December 7, 2023. The case was sent to the Court on February 2, 2023, because no response brief was filed. Since then, self-represented Abrielle Elizabeth Holmquist moved the Court for additional time to file her brief, which this Court granted until March 25, 2024.

Upon review of the register of actions and order on appeal, we conclude that Marino's request for stay is improper and untimely. While Marino sought a motion to stay Orders in the District Court on August 14, 2023, the court did not have the opportunity to entertain his motion because Marino filed his Notice of Appeal the next day, on August 15, 2023. M. R. App. P. 22(1)(a) and 22(2). Additionally on that day as well, the court held a status and scheduling conference for a non-jury trial in February and to set a contested hearing on the interim parenting plan. In lieu of issuing an order on the status and scheduling conference, the court stated in its Order that it would take no further action because of the pending appeal and recommended that both parties contact the Montana Family Transition Project for access to possible resources.

Marino then attempted to seek relief in the District Court the next month. On September 7, 2023, the District Court denied Marino's Emergency Motion for Contempt of Court and Warrant, explaining that the only parenting plan is the August 9, 2023 intertim parenting iJlan and that the Kalispell Municipal Court issued a protection order for Holmquist and against Marino, valid until July 10, 2024.

We further conclude that this appeal is improperly before this Court. The District Court has not concluded all matters in this proceeding. M. R. App. P. 4(5)(a)(i). Marino does not have a final judgment to appeal. M. R. App. P. 4(1)(a). Therefore, IT IS ORDERED that: 1. Marino's Emergency Motion to Stay Orders pending Supreme Court Appeal is DENIED; 2. this appeal is DISMISSED without prejudice. Marino may seek an appeal when he has a final judgment from the District Court; and 3. the Clerk of the Supreme Court is directed to CLOSE this appeal as of this Order's date.

The Clerk also is directed to provide a copy of this Order to all parties at their last known address.

DATED this ,S day of March, 2024.

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