                                                                                          December 31 2013
                                           DA 13-0028

               IN THE SUPREME COURT OF THE STATE OF MONTANA
                                          2013 MT 379N



IN RE THE MATTER OF THE
PARENTING OF:

A.P., a minor child,

NICHOLAS PYLE,

              Petitioner and Appellant,

         v.

MELISSA SAYLER, n/k/a/ Melissa Dunn,

              Respondent and Appellee.


APPEAL FROM:           District Court of the Twelfth Judicial District,
                       In and For the County of Hill, Cause No. DR 03-081
                       Honorable John C. McKeon, Presiding Judge


COUNSEL OF RECORD:

               For Appellant:

                       Nathan J. Hoines; Hoines Law Office, P.C.; Great Falls, Montana

               For Appellee:

                       Robert L. Stephens, Jr.; Southside Law Center; Billings, Montana



                                                    Submitted on Briefs: December 3, 2013
                                                               Decided: December 31, 2013


Filed:

                       __________________________________________
                                         Clerk
Justice Patricia O. Cotter delivered the Opinion of the Court.

¶1     Pursuant to Section I, Paragraph 3(d), 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     Nicholas Pyle and Melissa Sayler are the biological parents of A.P., born in 2002.

The couple broke up in 2003 and have had a contentious relationship since that time.

Both parents have moved on to subsequent relationships. In April 2005, the parents

entered into a Final Parenting Plan under which A.P. resided primarily with Melissa, and

Nicholas had generous visitation and co-parenting rights. In September 2005, Nicholas

suffered a serious head injury that left him unable to work.        His memory remains

impaired as a result and he takes regular medication.

¶3     After entering into the 2005 parenting plan, Nicholas and Melissa continued to

have difficulty cooperating with one another and they both filed numerous motions for

contempt against the other parent. In 2007, following mediation, the parents entered into

a second Final Parenting Plan again with primary residency of the child with Melissa and

Nicholas having liberal visitation opportunities. To the extent Nicholas’s 2005 injury

influences the terms and conditions of the parenting plan, it was addressed in this

parenting plan. The District Court issued an Amended Parenting Plan Order reflecting

the terms and conditions of the 2007 agreed-upon Final Parenting Plan.



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¶4     In 2009, Melissa asked the court to require supervised visitation between Nicholas

and A.P. after learning that Nicholas had received four tickets for speeding, one for

driving 95 miles per hour in a 70 mile zone. Another of the four tickets was received

while A.P. was in the car with him. Nicholas also had received a DUI and a careless

driving citation following a one-vehicle accident in which his three-year-old son was a

passenger. Nicholas received these citations between November 2007 and September

2009. Melissa also heard from a credible source that Nicholas had attempted suicide in

2009. Fearing for the safety of her child, Melissa requested an interim parenting plan that

required Nicholas to undergo psychological testing, complete a medical evaluation, and

accept supervision during A.P.’s visits. Following a hearing, the District Court ordered

that visitation resume but that Nicholas not be allowed to drive with the child in the car

and that one of his parents must be present during the visitation. He was also ordered to

complete a chemical dependency evaluation and follow all recommendations.

¶5     In December 2010, Nicholas was charged with Criminal Distribution of

Dangerous (Imitation) Drugs, a felony. The transaction allegedly occurred in Nicholas’s

parents’ home where Nicholas and his children lived, and took place on a day when A.P.

was visiting. Melissa did not learn of this charge at the time. In April 2011, as a result of

Nicholas and Melissa’s continued disagreements about visitation, they met with a second

mediator and subsequently entered into a Memorandum of Understanding. In May 2012,

Melissa learned of Nicholas’s then-unresolved drug distribution charge (Nicholas’s trial

was scheduled for February 2013). She moved to have visitation suspended and for an

interim parenting plan. She also notified Nicholas in writing that she would not deliver

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A.P. to him for his summer visitation. Nicholas responded by moving to have Melissa

held in contempt. The District Court conducted a hearing on the matter on September 14,

2012.

¶6      On December 24, 2012, the District Court denied Nicholas’s motion to hold

Melissa in contempt. The court also stated that while restricted visitation may continue,

visitation could not interfere with A.P.’s professional counseling and medical treatment.

Additionally, the court ordered that Melissa would be A.P.’s primary residential parent

and Nicholas would have visitation on one weekend per month to be supervised by

Melissa or her designee. The District Court further ordered that Nicholas could have

these limitations lifted upon verifying that he had “adequately addressed chemical abuse

issues,” and that his criminal charges were resolved through acquittal or compliance with

post-conviction terms and conditions. Nicholas appeals.

¶7      On appeal, Nicholas argues that the District Court’s findings of fact are not

supported by the evidence and that the court did not consider the best interests of the

child when amending the parenting plan. He claims that the amendment to the plan

“essentially eliminates his custodial visitation rights.”

¶8      After a careful review of the District Court record, we affirm the District Court.

We acknowledge that the court was presented with substantial conflicting evidence

presented by four primary witnesses—Melissa, Nicholas, and Nicholas’s parents. As we

have stated on numerous occasions, “[i]t is well established that it is exclusively within

the province of the trier of fact, and not this Court, to weigh evidence, including

conflicting evidence, and judge the credibility of the witnesses. We have repeatedly held

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that we will not second-guess a district court’s determinations regarding the strength and

weight of conflicting testimony.” Owen v. Skramovsky, 2013 MT 348, ¶ 22, 373 Mont.

531, 313 P.3d 205.       While Nicholas may claim that the evidence presented was

inaccurate or untruthful, the evidence presented in documents and at hearings nonetheless

supports the court’s findings. Moreover, there is no evidence that the District Court did

not consider the child’s best interests.

¶9     We have determined to decide this case pursuant to Section I, Paragraph 3(d) of

our Internal Operating Rules, which provides for noncitable memorandum opinions. The

District Court’s findings of fact are supported by substantial evidence and the legal issues

are controlled by settled Montana law, which the District Court correctly interpreted.



                                                 /S/ PATRICIA COTTER


We concur:

/S/ MIKE McGRATH
/S/ MICHAEL E WHEAT
/S/ BETH BAKER
/S/ LAURIE McKINNON




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