Biological Father Gets Nothing

Shannon gave birth to a child two months after she married Travis. She had become pregnant when she was living with Justin, but had also dated Travis. She told them both that one of them was the father. Travis was in the Air Force, stationed in Italy. Justin was disabled and living with his parents. Shannon married Travis in October, 2005 and moved to Italy where the child was born. Travis later was stationed in Great Falls, where marital difficulties arose. Shannon contacted Justin during the separation. Travis obtained a temporary order granting him custody of this child and a subsequent child of the marriage. Shannon moved back in with Travis and they were attempting to reconcile when Justin moved to intervene. His motion was granted as was his motion for a paternity test, which proved he was the biological father. The trial court denied his motion for an interim parenting plan, finding that Justin had failed to maintain contact with the child for four years, that he suffered from a major depressive disorder, that Travis had in all respects stepped up to the plate as the child's father, and it was in the child's best interests that Justin's motion be denied. The trial court relied upon Paternity of Adam, 273 Mont. 351, 903 P.2d 207 (1995), a similar case.

Then Justin filed a Rule 59 motion, which the trial court granted, reversing its earlier order and granting Justin a parental interest. Travis and Shannon appealed. The Montana Supreme Court reversed. The Court noted there are just four grounds for granting a Rule 59 motion: 

"1) to correct manifest errors of law or fact upon which the judgment was based; 

2) to raise newly discovered or previously unavailable evidence; 

3) to prevent manifest injustice resulting from, among other things, serious misconduct of counsel; or 

4) to bring to the court’s attention an intervening change in controlling law."

The Supreme Court found none of the above were true. Indeed the Court found that the trial court apparently had just changed its mind, something that Rule 59 does not permit. The case was remanded for the trial court to reinstate its original ruling, which the trial court then did. 

This is the second appeal. The Supreme Court affirmed in a noncite opinion, because the trial court did exactly on remand what it was supposed to do. 

First Appeal:  In Re Marriage of Johnson, 2011 MT 255. 

Second Appeal: In Re Marriage of S.M.J. 2012 MT 202N.