                                                                                             September 11 2012


                                             DA 11-0698

                       IN THE SUPREME COURT OF THE STATE OF MONTANA

                                            2012 MT 202N


IN RE THE MARRIAGE OF:
S.M.J.,

                Petitioner and Appellee,

          and

T.I.J.,

                Respondent and Appellee,

          and

J.W.,

                Intervener and Appellant.


APPEAL FROM:              District Court of the Eighth Judicial District,
                          In and For the County of Cascade, Cause No. ADR-09-284
                          Honorable Thomas M. McKittrick, Presiding Judge


COUNSEL OF RECORD:

                  For Appellant:

                          Jeffrey S. Ferguson, Attorney at Law, Great Falls, Montana

                  For Appellee:

                          Barbara E. Bell, Marra, Sexe, Evenson & Bell, P.C., Great Falls, Montana



                                                       Submitted on Briefs: July 25, 2012

                                                                  Decided: September 11, 2012


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     This is the second appeal by these parties to this Court.        For a full factual

recitation, procedural background and legal analysis, see In re Marriage of Johnson,

2011 MT 255, 362 Mont. 236, 262 P.3d 1105 (Johnson I).

¶3     In summary, in 2005, S.M.J., having dated both T.I.J. and J.W. during the same

time frame, became pregnant. She informed both men that either of them could be the

father. Shortly thereafter, J.W. ended the relationship, and T.I.J. married S.M.J. C.I.J.

was born in December 2005 and T.I.J. immediately took on the responsibilities of

fatherhood. In June 2009, S.M.J. and T.I.J. experienced marital difficulties and S.M.J.

filed for dissolution. She took the children to Pennsylvania to spend time with her

family. While there, she contacted J.W. and she and the child began spending time with

him. Subsequently, S.M.J. and T.I.J. reunited and the family returned to Montana.

¶4     J.W. followed S.M.J. and C.I.J. to Montana and intervened in S.M.J.’s dissolution

proceeding seeking paternity testing to identify C.I.J.’s biological father. The DNA tests

showed J.W. was the child’s biological father. J.W. moved for a parenting plan granting

him visitation rights. The District Court initially entered a full order denying J.W.’s




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motion for an interim parenting plan. However, the court subsequently reversed its

decision and granted J.W.’s motion. S.M.J and T.I.J. appealed.

¶5     On appeal, we reversed the District Court and remanded the matter with

instructions that the court reinstate its original Findings of Fact, Conclusions of Law and

Order regarding Parent/Child Relationship, wherein it denied J.W.’s motion for parental

rights and visitation privileges. Johnson I, ¶ 25. On remand, the District Court vacated

its amended order granting J.W. rights and reinstated its original order denying such

rights. J.W. appeals.

¶6     There is nothing in the present record to indicate that our analysis set forth in

Johnson I was incorrect or inappropriate. We concluded in our earlier Opinion that there

was sufficient evidence in the record to support the District Court’s original order

denying J.W.’s request for parenting rights and visitation. Nothing has changed in C.I.J.

or J.W.’s lives to cause us to reconsider this conclusion. S.M.J. and T.I.J., whose

dissolution proceeding was dismissed in 2010, continue to provide a stable and loving

home for their three children.

¶7     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. As

there was ample evidence to support the District Court’s reinstatement of its earlier

decision, it was not an abuse of the court’s discretion to do so.

                                      CONCLUSION

¶8     For the foregoing reasons, we affirm the judgment of the District Court.




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                          /S/ PATRICIA COTTER


We concur:

/S/ JAMES C. NELSON
/S/ MICHAEL E WHEAT
/S/ BETH BAKER
/S/ BRIAN MORRIS




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