05/31/2022
DA 21-0317 Case Number: DA 21-0317
IN THE SUPREME COURT OF THE STATE OF MONTANA
2022 MT 106N
IN RE THE PARENTING OF: J.M.N., IV,
FRANCESCA C. BECKERLE,
Petitioner and Appellee,
v.
JOHN MARSHALL NICHOLS, III,
Respondent and Appellant.
APPEAL FROM: District Court of the Eighth Judicial District, In and For the County of Cascade, Cause No. BDR-20-0146 Honorable Elizabeth A. Best, Presiding Judge
COUNSEL OF RECORD:
For Appellant:
Patrick F. Flaherty, Daniel Flaherty, Flaherty Gallardo Lawyers, Great Falls, Montana
For Appellee:
Dana A. Henkel, Terrazas Henkel, P.C., Missoula, Montana
Jeffrey S. Ferguson, Attorney at Law, Great Falls, Montana
Submitted on Briefs: May 4, 2022 Decided: May 31, 2022
Filed:
__________________________________________ Clerk Justice Beth Baker delivered the Opinion of the Court.
¶1 Pursuant to Section I, Paragraph 3(c), 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 John Marshall Nichols, III, appeals the findings of fact, conclusions of law, and
order of the Eighth Judicial District Court, Cascade County, adopting a final parenting plan
that provides Francesca Beckerle primary custody of John and Francesca’s son, J.N., and
allows Francesca to relocate to Texas with J.N. We affirm.
¶3 John and Francesca were never married and have been separated since 2019. J.N.
was born in 2016. In June 2020, the parties stipulated to an interim parenting plan, effective
until August 2020. The parenting plan called for J.N. to reside with Francesca from
10:00 a.m. on Wednesdays until 4:00 p.m. on Saturdays and with John the rest of the week.
When John did not abide by the stipulated schedule after it expired, Francesca sought a
final parenting plan. After one continuance at John’s request, the court set a hearing for
October 2020 but continued it to April 2021 on John’s second motion. In the meantime,
Francesca filed a motion to enforce the interim stipulated parenting plan.
¶4 The court held an interim hearing on November 6, 2020. Francesca’s co-worker
and soon-to-be mother-in-law both testified on her behalf. The court indicated that it would
prefer to hear directly from the parties. Francesca testified that prior to meeting John she
2 overcame an opioid dependency and had been “clean” since April 2015. For the first two
years of J.N.’s life, they lived in Great Falls; John worked, and Francesca was a
stay-at-home parent. They switched roles when John briefly was unemployed. When John
got a new job with BNSF in Havre, Francesca stopped working until the relationship ended
in 2019. After spending three weeks in Wyoming, Francesca returned to Montana and
found a full-time job at the Great Falls airport. Because Francesca worked in Great Falls
and her housing situation was still unstable, J.N. lived with John in Havre during this
period, and John limited the boy’s contacts with Francesca to twice per week. Despite
finding permanent housing with her fiancé, Francesca testified that John did not increase
her visits until the interim parenting plan was established in June 2020.
¶5 John testified that, though sober during their relationship, Francesca struggled to
remain so and suffered from depression and suicidal ideations. He said that after the
relationship ended, Francesca disappeared to Wyoming without a definite return date and
abandoned J.N. He tried to co-parent after Francesca returned, but Francesca either would
ignore him or say that she was working. He testified that between June 2019 and May
2020, Francesca saw J.N. only forty-nine times and that only nineteen of those were
overnight visits. Because John was furloughed due to COVID-19 in 2020, he stayed home
with J.N. full-time. John expressed concern about J.N.’s well-being in Francesca’s care.
He testified that when J.N. returns from her house he exhibits behavioral issues, has trouble
sleeping, and experiences nightmares.
¶6 The court issued a new interim parenting plan after the November 2020 hearing that
called for J.N. to reside with Francesca from 4:30 p.m. on Tuesdays until 8:30 a.m. on
3 Fridays and the rest of the week with John. The court ordered Francesca to obtain a
chemical dependency evaluation because of her past opioid dependency and her recent
“unpredictable” behavior. The court also ordered both parents to attend joint counseling
to address their communication and trust issues.
¶7 Francesca married her fiancé in February 2021. Two months later, she filed an
affidavit to notify the court that she recently married and planned to move to Texas with
her husband, who would be taking a job as a Border Patrol Agent. The court vacated its
previously scheduled status hearing, ordered the parties to submit written status reports,
and set a final hearing for one hour on May 25, 2021. Ten days before the hearing, John
moved for another continuance and requested more time than the allotted hour. The court
denied his motion. Francesca filed a proposed final parenting plan, under which J.N. would
reside with her in Texas during the school year and with John during winter, spring, and
summer breaks.
¶8 At the final hearing, Francesca testified that she and her husband bought a house in
a gated community near an elementary school in Texas; that she anticipates working when
J.N. is in school; that the Border Patrol assists with childcare if needed; and that she plans
to continue joint therapy with John remotely. Francesca described J.N.’s anticipated
support system in Texas, which included her husband’s family and the Border Patrol
community. Francesca also presented J.N.’s preschool attendance record, which showed
that on Mondays and Tuesdays, the days he resided with John, he was typically absent or
late. Because of concerns John raised at the interim hearing, the court asked Francesca
whether her husband interfered with her and John’s parenting. Francesca stated that her
4 husband had no communication with John and did not disparage John in any way. The
court also questioned Francesca about her chemical dependency recovery, and she testified
that she feels confident in her sobriety and plans to find a personal therapist in Texas.
¶9 John testified that when J.N. does not go to school, he spends time with him at home,
doing activities and playing video games. John said that he planned to move to Helena and
enroll in the civil engineering program at Carroll College; he thought that Helena would
be a good place for J.N. John testified that J.N.’s former babysitter, who has two kids of
her own, also lives in Helena. John said he was concerned about Francesca’s husband
because during one of the drop-offs, he became confrontational in front of J.N.
¶10 The District Court reiterated its concerns about the parties’ inability to communicate
respectfully, stating, “both of you continue to be acrimonious and disrespectful toward each
other.” After briefly questioning the parties, the court requested argument from the
attorneys and had the following exchange with Francesca’s attorney:
[Judge]: And so, from your perspective, it’s to some extent—it’s a jump ball with the exception of the school attendance?
[Counsel]: School attendance. And then Francesca’s support system is much more significant than, unfortunately for, John. She testified to that. I think that’s important. But yeah, I think this is one of those ones that’s an extremely close call.
¶11 The court’s final parenting plan adopted Francesca’s proposed residential schedule:
J.N. would reside with Francesca in Texas during the school year and with John in Montana
during winter breaks, spring breaks, and summer breaks.
¶12 John raises two arguments on appeal. He contends that when the District Court
found most factors in § 40-4-212(1), MCA, to weigh in neither party’s favor and only one
5 slightly in each parent’s favor, it abused its discretion by granting primary custody to
Francesca in Texas. Second, John asserts error in the court’s denial of his third motion for
continuance and its refusal to extend the duration of the final hearing.
¶13 “We review a district court’s conclusions of law de novo” and its findings of fact
“for clear error.” In re Parenting of P.H.R., 2021 MT 231, ¶ 7, 405 Mont. 334, 495 P.3d 38
(citations omitted). A finding is “clearly erroneous if it is not supported by substantial
evidence, if the court misapprehended the effect of the evidence, or, if upon reviewing the
record, this Court is left with the definite and firm conviction that the district court made a
mistake.” In re Parenting of P.H.R., ¶ 7 (citation omitted). “[A]bsent clearly erroneous
findings, we will not disturb a district court’s decision regarding a parenting plan unless
there is a clear abuse of discretion.” In re G.M.N., 2019 MT 18, ¶ 11, 394 Mont. 112,
433 P.3d 715 (citation omitted).
¶14 Section 40-4-212(1), MCA, enumerates a non-exclusive list of criteria to determine
whether a parenting plan is in accordance with the best interest of the child. It includes
considerations such as: “the interaction and interrelationship of the child with the child’s
parent or parents and siblings and with any other person who significantly affects the
child’s best interest”; “the child’s adjustment to home, school, and community”; “the
mental and physical health of all individuals involved”; and “physical abuse or threat of
physical abuse by one parent against the other parent or the child.”
Section 40-4-212(1)(c)-(f), MCA; see also In re Parenting of P.H.R., ¶ 14. “It is not this
Court’s function to reweigh conflicting evidence or substitute its judgment regarding the
strength of the evidence for that of the district court.” In re G.M.N., ¶ 11 (citation omitted).
6 ¶15 In its findings of fact and conclusions of law, the court applied the “best interest of
the child” factors and concluded that most factors did not weigh in favor of either party.
The court found that J.N. would have more of a support system in Texas with Francesca,
whereas “[l]ittle evidence was presented about his relationship with John’s extended
family.” It thus concluded that “the interaction and interrelationship of the child
with . . . any other person who significantly affects the child’s best interest” weighed
slightly in Francesca’s favor. The court also noted that, with respect to the “child’s
adjustment to home, school, and community,” the evidence showed that J.N. missed school
while in John’s care. The court concluded, however, that this factor was neutral.
¶16 The court found one factor slightly in John’s favor—“the mental and physical health
of all individuals involved”—because John’s testimony suggested that Francesca’s
husband had “volatile moments.” Despite this finding, the court determined that “no
evidence was presented regarding physical abuse or threat of physical abuse.” The court
concluded, therefore, that the separate but related factor—“physical abuse or threat of
physical abuse”—weighed in neither party’s favor.
¶17 John contends that the court’s findings were not supported by substantial credible
evidence because, although the court found that Francesca’s husband has “volatile
moments,” it contrarily determined that Francesca’s husband was a positive force in J.N.’s
life and concluded that “the interaction and interrelationship of the child” factor weighed
in Francesca’s favor.
¶18 The court’s finding that Francesca’s husband has “volatile moments” was based
entirely on John’s testimony: his description of one incident in which the parties argued
7 about the return of a teddy bear during one of the drop-offs. Francesca disputed John’s
version of the incident and said that John overreacted when asked to return J.N.’s teddy
bear. Although the court credited John’s testimony that Francesca’s husband could be
volatile, it also found that the “physical abuse or threats of physical abuse” factor was
irrelevant. To guard against John’s concerns, the court included a warning in the final
parenting plan:
As noted in the Findings of Fact, Conclusions of Law, and Order Adopting Final Parenting Plan, Jonathan Haseldon (Jonathan), the child’s step-father, has interjected himself into the parenting of the child and contributed to animosity and division between or among the parents and the child. If Jonathan continues this behavior, this parenting plan is at risk of modification.
There was substantial credible evidence presented at both the interim and final hearings
that J.N. had a close relationship with Francesca’s husband’s family. By contrast, there is
no evidence in the record regarding John’s support system for J.N., other than his testimony
that he planned to relocate to Helena where J.N.’s former babysitter lived. Substantial
evidence supports the court’s conclusion that this factor weighed in Francesca’s favor, and
we will not substitute our own judgment. See In re G.M.N., ¶ 11.
¶19 John asserts that the court failed to take into account other evidence, such as: (a) the
sporadic and inconsistent contact that Francesca had with J.N. before the June 2020 interim
parenting plan; (b) Francesca’s lack of a recovery support system in Texas; (c) Francesca’s
plan to move to Texas before finalizing a permanent parenting plan and without knowing
whether she would have custody of J.N.; and (d) J.N.’s behavioral issues after his visits
with Francesca.
8 ¶20 Although John testified that Francesca had contact with J.N. only forty-nine times
between June 2019 and May 2020, Francesca’s testimony indicated that this was largely
John’s doing and not a result of any failure on her part. Francesca testified that after her
relationship with John ended, she worked to rebuild her life as a single parent. She abruptly
transitioned from a stay-at-home parent to a full-time airport employee, and she struggled
to secure steady housing. Because she could not find employment in Havre, she lived in
Great Falls, which made visits with J.N. even more impractical. John testified that he was
not burdened in any way during this period because he was furloughed from BNSF and
was happy to spend that time reconnecting with J.N.
¶21 Both parties’ testimonies show that J.N. spent most of his early years with
Francesca, who was a stay-at-home parent for the majority of the child’s first three years.
John’s time with J.N. primarily occurred in the year following the parties’ break-up, while
Francesca worked full-time, searched for more permanent housing, and lived nearly two
hours away. The evidence does not show clear error when the District Court discounted
John’s forty-nine-day statistic in determining the best interest of J.N.
¶22 Francesca testified that she felt solid in her six-year recovery, and the court appeared
satisfied with her chemical dependency evaluation. Following its direct questioning of her,
the court found that “Francesca . . . is maintaining her sobriety” and concluded that the
“chemical dependency” factor did “not weigh in favor of either parent.” John argues that
this factor should have weighed in his favor because Francesca did not have a plan for
attending twelve-step meetings in Texas. But Francesca had maintained her sobriety for
six years and testified that she would continue personal counseling and would consider
9 twelve-step meetings in Texas. Substantial credible evidence supported the court’s finding.
John has not shown error in the court’s application of the “chemical dependency” factor.
¶23 Francesca had purchased a house in Texas prior to the final hearing and testified
that she would move with her husband regardless of J.N.’s final residential schedule.
Francesca argued that the Border Patrol job was an important, life-altering commitment for
her husband and not something he could have given up if the parenting plan required J.N.
to stay in Montana. John argues that Francesca’s lack of a “back-up plan” regarding her
move to Texas indicates that she cannot provide “continuity” and “stability of care” to J.N.
The court rejected this argument at the final hearing, and John presents no compelling
reason why Francesca’s commitment to move to Texas with her husband implies that she
cannot provide stability and continuity to J.N.
¶24 The parties vehemently disagreed about the causes of J.N.’s behavioral issues.
Francesca testified that these problems stemmed from the lack of consistency in J.N.’s
residential schedule and his absences from school, while John blamed Francesca for all of
J.N.’s issues. Two witnesses testified that Francesca helped J.N. overcome some of his
behavioral issues. The parties did not dispute that J.N. missed significantly more days of
school in John’s custody than he did in Francesca’s custody. The District Court found that
“J.N. is having difficulty because of frequent changes in residence, which result in
emotional upheaval and John’s decision, whether wise or not, to keep him home from
school for support.” The court concluded that the “child’s adjustment to home, school, and
community” factor weighed in neither party’s favor. The Judge indicated the importance
of this factor at the final hearing, when she stated that, although this case was close, the
10 attendance issue tipped in Francesca’s favor. The court therefore acknowledged that the
inconsistent schedule and the absences from school likely caused or contributed to J.N.’s
behavioral problems. We find no error in the court’s assessment of this evidence.
¶25 The court admonished John at both hearings that it was not in his or J.N.’s best
interest to “keep score” or to “dig up every single skeleton [he] can find” and use it to
attack Francesca. Yet he continued his attempts to portray her as a drug addict and a
neglectful parent. The court did not find support for this narrative in the evidence, and
John has not shown clear error. “Like many child custody cases, the parties’ circumstances
required the court to make difficult choices. . . . The court needed to select a primary
residential parent and it did so.” In re Marriage of Crowley, 2014 MT 42, ¶ 46, 374 Mont.
48, 318 P.3d 1031. Upon review of the record, we conclude that the court’s findings of
fact were not clearly erroneous and that it did not abuse its discretion in applying the “best
interest of the child” factors. See Crowley, ¶ 44.
¶26 John argues for the first time on appeal that the court should have considered the
2021 Legislature’s House Bill 393 (HB 393) in its analysis of the “best interest of the child”
factors. HB 393 codified additional “best interest of the child” factors for modifications of
parenting plans when one parent intends to move “in a manner that significantly affects the
child’s contact with the other parent.” See § 40-4-219(1)(b), MCA; HB 393, 67th Reg.
Sess., Ch. No. 219 (Mont. 2021). Conceding that the bill went into effect months after the
final hearing, John contends nonetheless that the court should have considered it as
persuasive authority. John does not present a compelling argument, and we decline to
11 consider this claim for the first time on appeal. See Paschen v. Paschen, 2015 MT 350,
¶ 39, 382 Mont. 34, 363 P.3d 444.
¶27 Finally, John argues that the District Court abused its discretion when it denied
John’s third motion for continuance and limited the final hearing to one hour. We review
for abuse of discretion a district court’s decision to grant or deny a continuance.
In re Marriage of Fishbaugh, 2002 MT 175, ¶ 11, 310 Mont. 519, 52 P.3d 395. A district
court “has broad discretion in determining issues relating to trial administration,” including
the imposition of a “reasonable time limit on the time allowed to present evidence.”
Fink v. Williams, 2012 MT 304, ¶ 18, 367 Mont. 431, 291 P.3d 1140 (quoting
M. R. Civ. P. 16(c)(2)(O)).
¶28 On May 4, 2021, the District Court scheduled the final hearing for May 25, 2021.
On May 14, 2021, John filed a status report and moved to continue the final hearing for
three reasons: (1) the hearing was set for only one hour, which was not enough time; (2)
the parties should be given more time to prepare a proposed parenting plan; and (3) the
parties did not have a chance to subpoena witnesses. Though John’s motion appears to
suggest that there was an “absence of evidence,” John did not provide any affidavits in
support of his motion to continue, nor did he indicate the “materiality of the evidence
expected to be obtained.” See § 25-4-501, MCA; In re O.A.W., 2007 MT 13, ¶ 79,
335 Mont. 304, 153 P.3d 6.
¶29 The record shows that the court wanted primarily to hear from the parents and their
counsel. It had heard testimony from other witnesses at the interim hearing and indicated
that the testimony was not very helpful in the ultimate determination of the parenting plan.
12 John did not argue, moreover, that a third continuance would be “in furtherance of justice,”
nor did he provide “good cause,” as required by § 25-4-503, MCA. The court was mindful
of the timing as well: J.N.’s residential schedule had changed at least three times within a
year, and Francesca was preparing to move from Montana to Texas. Additionally, the
record contradicts John’s assertion that he did not have time to submit a proposed final
parenting plan because Francesca filed a proposed final parenting plan after the court
scheduled the final hearing. That John failed to do the same does not establish prejudice.
¶30 Similarly, John does not show how he was prejudiced by the one-hour time limit at
the final hearing. He fails to identify any additional evidence he would have presented.
The transcript shows that John and Francesca both testified and were cross-examined, and
the court questioned them and their attorneys. Additionally, they both testified at the
interim hearing and presented documentary evidence at both proceedings.
¶31 We have determined to decide this case pursuant to Section I, Paragraph 3(c) of our
Internal Operating Rules, which provides for memorandum opinions. Under the applicable
standards of review, we conclude that the District Court did not err in determining the best
interest of the child or abuse its discretion when it denied John’s motion to continue and
limited the final hearing to one hour. We affirm the District Court’s findings of fact,
conclusions of law, and order adopting the final parenting plan.
/S/ BETH BAKER
13 We Concur:
/S/ LAURIE McKINNON /S/ JAMES JEREMIAH SHEA /S/ DIRK M. SANDEFUR /S/ JIM RICE