                                                                                            June 8 2010


                                            DA 09-0521

               IN THE SUPREME COURT OF THE STATE OF MONTANA
                                           2010 MT 127N



IN RE THE PARENTING OF
D.N.S., a Minor,

ASHLEY N. WATERS,

                Petitioner and Appellee,

         and

CLAUDE DANIEL SMITH,

                Respondent and Appellant.


APPEAL FROM:            District Court of the Seventeenth Judicial District,
                        In and For the County of Phillips, Cause No. DR 08-22
                        Honorable John C. McKeon, Presiding Judge


COUNSEL OF RECORD:

                 For Appellant:

                        Jeremy S. Yellin, Attorney at Law; Havre, Montana

                 For Appellee:

                        Terrence Lee Toavs, Law Offices of Terrance L. Toavs; Wolf Point,
                        Montana



                                                    Submitted on Briefs: May 18, 2010

                                                                Decided: June 8, 2010


Filed:

                        __________________________________________
                                          Clerk
Justice Jim Rice delivered the Opinion of the Court.

¶1    Pursuant to Section I, Paragraph 3(d)(v), Montana Supreme Court 1996 Internal

Operating Rules, as amended in 2006, the following memorandum decision shall not be

cited as precedent. It shall be filed as a public document with the Clerk of the Supreme

Court and its case title, Supreme Court 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    Claude Daniel Smith (Claude) appeals from the order of the Seventeenth Judicial

District Court, Phillips County, adopting Ashley N. Water’s (Ashley) proposed parenting

plan. The issue on appeal is whether the District Court abused its discretion in adopting

the permanent parenting plan for D.N.S. proposed by Ashley.

¶3    In June of 2007, Claude and Ashley met in Bozeman and shortly thereafter began

to reside together. Claude and Ashley’s relationship was volatile and, on one occasion,

Claude punched a hole in the door of the couple’s apartment during an argument.

Ashley, then pregnant, moved back to Malta, her hometown. In an effort to reconcile,

Claude also moved to Malta and promised that he would stop using alcohol and improve

his behavior.   One week later, in October of 2008, their child, D.N.S., was born.

Ultimately, the attempt at reconciliation failed and Claude moved back to Charlo, his

hometown, leaving Ashley and D.N.S. in Malta. Thereafter, D.N.S. resided primarily

with Ashley in Malta. Based upon their stipulation, the District Court adopted an interim

parenting plan which provided that Ashley would be the residential parent and Claude




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would have gradually increasing visitation for periods of two to four consecutive days per

month.

¶4    On August 18, 2009, a parenting plan hearing was held and after reviewing the

proposed parenting plans of both Claude and Ashley, the District Court entered its order

adopting Ashley’s proposed parenting plan, requiring Claude to pay $379 per month in

child support and ordering Claude to complete chemical dependency and anger

management assessments.

¶5    On appeal, Claude challenges the District Court’s adoption of Ashley’s proposed

plan, arguing that the District Court erred by rejecting his proposed parenting plan by

selecting “which facts i t w i s h e d t o u t i lize,” namely, Claude’s allegedly violent

tendencies, while ignoring credible evidence supporting his plan. He also argues that

District Court erred by ignoring local child visitation guidelines, contradicting the goals

of stability and continuity of care by imposing significant travel requirements upon him,

erroneously presuming that D.N.S. should be placed with Ashley because she was the

primary caregiver, and granting Ashley sole discretion as to the educational and religious

upbringing of D.N.S.

¶6    We review a district court’s findings of fact relating to custody to determine

whether those findings are clearly erroneous. In re Marriage of McClain, 257 Mont. 371,

374, 849 P.2d 194 (1993). If findings upon which a district court’s decision is predicated

are not clearly erroneous, this Court will reverse the district court’s decision only where

an abuse of discretion is clearly demonstrated. In re Paternity & Custody of A.D.V., 2001

MT 74, ¶ 8, 305 Mont. 62, 22 P.3d 1124.


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¶7     The District Court did not ignore his evidence, as Claude argues, but rather acted

in its role as the trier of fact to make credibility determinations and resolve conflicts in

the evidence. In so doing, the District Court determined that the best interests of D.N.S.

were served by adopting Ashley’s proposed final parenting plan. The record supports

this conclusion, and the visitation guidelines relied upon by Claude are merely advisory.

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

our 1996 Internal Operating Rules, as amended in 2006, which provides for

memorandum opinions. It is manifest on the face of the briefs and the record before us

that the appeal is without merit because the findings of fact are supported by substantial

evidence, the legal issues are clearly controlled by settled Montana law which the District

Court correctly interpreted, and the record supports the final parenting plan adopted by

the District Court.

¶9     Affirmed.

                                                        /S/ JIM RICE

We concur:

/S/ MIKE McGRATH
/S/ JAMES C. NELSON
/S/ BRIAN MORRIS
/S/ MICHAEL E WHEAT




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