IN THE SUPREME COURT
FOR THE STATE OF NORTH DAKOTA
| Heidi Lee Niemann, | ) | ||||||
| n/k/a Heidi Lee Wolf | ) | ||||||
| ) | |||||||
| Plaintiff, Appellee | ) | Supreme Court | |||||
| ) | Case No. 20060332 | ||||||
| vs. | ) | ||||||
| ) | |||||||
| Lyle Thomas Niemann, | ) | ||||||
| ) | |||||||
| Defendant, Appellant. | ) | ||||||
BRIEF OF APPELLANT
APPEAL FROM ORDER OF THE DISTRICT COURT DENYING MOTION
FOR CHANGE OF CUSTODY
DISTRICT COURT OF WALSH COUNTY,
NORTHEAST JUDICIAL DISTRICT
THE HONORABLE LEE A. CHRISTOFFERSON, PRESIDING
| Darcie M. Einarson |
| Attorney at Law |
| 640 Hill Avenue |
| Grafton, ND 58237 |
| (701) 352-9311 |
| Attorney for the Defendant/Appellant |
| North Dakota ID #04982 |
TABLE OF CONTENTS
| 1. | Table of Contents | i | |||
| 2. | Table of Authorities | ii | |||
| 3. | Statement of Issues | 1 | |||
| a. | Whether the District Court's Failure to Find a Significant | ||||
| Change of Circumstances was Clearly Erroneous | |||||
| b. | Whether the Lower Court Abused it's Discretion in | ||||
| Limiting the Parties' Case to Two Hours | |||||
| 4. | Statement of the Case | 1 | |||
| 5. | Statement of Facts | 3 | |||
| 6. | Argument | 9 | |||
| a. | A Significant Change of Circumstances Exists Which | ||||
| Justifies a Change of Custody | 9 | ||||
| b. | The Court Committed Reversible Error in Limiting | ||||
| Each Party's Case to Two Hours. | 20 | ||||
| 7. | Conclusion | 22 | |||
TABLE OF AUTHORITIES
| Barstad v. Barstad, 499 N.W.2d 584, 587 (N.D. 1993) | 9 | |||
| Brewer v. Whitney, 245 A.D.2d 842, 666 N.Y.S.2d 354 | ||||
| (N.Y. App. Div. 1997) | 20 | |||
| Coppersmith v. Coppersmith, No. CIV.A.AP-00-52, 2001 WL 1708027 | ||||
| (Me. Super. Apr. 12, 2001) | 17, 18 | |||
| Dietz v. Dietz, 2007 ND 84, 13, 733 N.W.2d 225 | 12, 13 | |||
| Holtz v. Holtz, 1999 ND 105, 17, 595 N.W.2d 1 | 14 | |||
| In re Marriage of Fueseler, No. D046429, 2006 WL 1331535 | ||||
| (Cal. App. May 17, 2006) | 20 | |||
| Kelly v. Kelly, 2002 ND 37, 17, 640 N.W.2d 38 | 10, 18 | |||
| Killion v. Sweat, No. E199902634COAR3CV, 2000) WL 1424809 | ||||
| (Tenn. Ct. App. Sept. 21, 2000) | 18, 19 | |||
| Lanners v. Johnson, 2003 ND 61, 7, 659 N.W.2d 864 | 13 | |||
| Leppert v. Leppert, 519 N.W.2d 281 (N.D. 1994) | 15 | |||
| Manning v. Manning, 2006 ND 67, 730, 711 N.W.2d 149 | 21 | |||
| Myers v. Myers, 1999 ND 194, 10, 601 N.W.2d 264 | 11 | |||
| Ryan v. Flemming, 533 N.W.2d 920, 925 (N.D. 1994) | 12 | |||
| Tank v. Tank, 2004 ND 15, 14, 673 N.W.2d 622 | 13 | |||
| Wetch v. Wetch, 539 N.W.2d 309, 312-13 (N.D. 1995) | 10 | |||
| Woods v. Ryan, 2005 ND 92, 11, 696 N.W.2d 508 | 11 | |||
| N.D.C.C. º 14-09-6.2(1)(c) | 15 | |||
| N.D.C.C. º 14-09-06.6 | 10 | |||
STATEMENT OF ISSUES
I. WHETHER THE DISTRICT COURT'S FAILURE TO FIND A SIGNIFICANT CHANGE OF CIRCUMSTANCES WAS CLEARLY ERRONEOUS.
II. WHETHER THE LOWER COURT ABUSED IT'S DISCRETION IN LIMITING THE PARTIES' CASES TO TWO HOURS
STATEMENT OF THE CASE
These parties were divorced on January 13, 1998. At the time of their divorce, the Niemanns stipulated to joint legal custody of their two children. Primary physical custody was awarded, by agreement, to Heidi.
The judgment was modified as to child support and related issues on September 13, 1999. The judgment was amended again to modify Lyle's child and spousal support obligations on November 30, 2000. (App. 7-14).
Lyle tried to change custody for the first time on July 10, 2001. At that time, the court did not find a prima facie case had been established. His motion was denied.
Lyle brought this motion, a motion for change of custody, in August of 2005. (App. 15-16). As required, he provided affidavits and a brief in support of his motion. Heidi filed a response as well as a brief and supportive affidavits. A total of 30 factual affidavits were filed by the parties. (App. 3-4).
Based on the motion and affidavits presented, the court found a prima facie case for modification and scheduled the case for hearing. (App. 18-19). A custody investigator was appointed.
A pretrial conference was held on June 5, 2006. At the pretrial conference, Judge Christofferson advised the parties that each would be limited to two hours to present their case. Both attorneys objected to this procedure. (App. 27).
A hearing was held on July 31, 2006 in the Walsh County District Courtroom in Grafton. At the commencement of the hearing the attorneys, concerned about the time limitation imposed by the court, entered into an oral stipulation. In it, they stipulated to facts, witness credentials and exhibits. The attorneys also stipulated that the transfer of Victoria's custody from Heidi to Lyle was not disputed and that the affidavits of witnesses who were made available for cross examination could be considered by the court as evidence. Much of the testimony presented was given in this fashion. (App. 29-30).
At the conclusion of the hearing, the Judge ruled from the bench. He denied Lyle's Motion for Change of Custody, suggesting that no significant change of circumstances had been shown. (App. 50-53). The court did suggest that if this were an analysis of the best interest factors, Lyle would prevail. (App. 52, ll. 14-15). A written Order denying the Motion followed. (App. 20-22).
Lyle brought a Motion for Reconsideration. Heidi responded and the court denied the Motion. (App. 23-25). This appeal followed.
Once the appeal was brought, it was found that the court reporter had failed to stenographically or electronically make a record of the proceedings. The record on appeal is a cumulation of the partial record prepared by the reporter, with corrections, stipulated to by counsel for the parties. (App. 28-152).
STATEMENT OF FACTS
At the time of their divorce, Lyle was a self-employed farmer and Heidi was a housewife and stay-at-home mother. (App. 154, l. 23-25). The family resided on a farm near Crystal, in Pembina County. (App. 154, l. 14).
At the time of the divorce, Heidi devoted much of her time to the care of the home and to the parties' two small children; Victoria was 5, Lyle Thomas (hereinafter "LT") was 3. (App. 154, l. 23). Lyle, as the sole breadwinner for the family and being a farmer, worked long hours. The Guardian ad Litem report filed with the court suggested that Heidi was the parent who provided the majority of the care for the children. The opinion of the GAL was that the best interest factors favored Heidi. She found the children to be happy and healthy in her care. (App. 422). Based upon this, the parties stipulated to custody of the children and a visitation schedule was created for Lyle.
Heidi planned to return to school and relocated to East Grand Forks, Minnesota. She obtained a nursing degree but did not follow through to become certified in this field. (App. 38). She is employed at Altru Hospital as a receptionist. Heidi also remarried. She and her husband, Vance have one child together.
Heidi's relationship with her husband, Vance is tumultuous. The police have been called due to domestic incidents on more than one occasion. (App. p. 37; ll. 6-7; p. 365; ll. 10-16). In the incident that occurred closest to the initiation of these proceedings, Vance came home from a dance intoxicated. An argument transpired between he and Heidi. Victoria said that the incident became physical with Vance calling Heidi names, kicking her and pushing her (App. 130, ll. 6-11). On the suggestion of one of Vance's friends, Heidi and the children fled the home. They spent the night at a friend's home and returned the next day. (App. 131, ll. 1-14).
Heidi suggested that she was not afraid of Vance. She testified that she left the home just to give him time to cool down. (App. 145). This is nonsensical when you consider that the children were required to leave and that they left without shoes or other items late in the night. (App. 176, l. 13).
Even if Heidi was not afraid, her children were. Victoria testified as such. LT told a school counselor of the need to leave in the middle of the night. She describes him as "shaken by it". The counselor, as a mandatory reporter, reported the family to Social Services for this incident. (App. 62, l. 5). This was not the first time she has felt the need to report this family. (App. p. 62, ll. 12-15 and p. 63, ll. 11-14).
While in the midst of a custody trial Heidi saw no threat from Vance Wolf, yet she had previously expressed concerns of his behavior to Polk County Social Services. In fact, she told the caseworker that she was leaving Vance Wolf. (App. 267).
Many of the disputes between Vance and Heidi followed excessive alcohol consumption by Vance. Heidi admitted that there were times in the couple's relationship where Vance's usage was problematic. (App. 145). Other testimony was presented regarding excessive alcohol use and inappropriate behavior resulting from alcohol use and bonfire parties at the Wolf home when the children were present. (App. 172, ll. 9-19).
Vance denied having a problem with alcohol. He had an alcohol evaluation to prove this as a "non-issue". His evaluator, Jim Murphy, had filed a report with the court indicating "no chemical dependency." (App. 211).
On cross-examination, however, Mr. Murphy admitted that alcoholics tend to deny their problem. He also advised the court that the only collateral sources contacted by him were Heidi Wolf and Vance Wolf's mother. The evaluation was arranged by Heidi Wolf's attorney for the purposes of responding to this custody motion. (App. 32).
Mr. Murphy was not made aware of the fact that Wolf had previously undergone treatment for alcoholism. He also did not know of the May 2005 incident or of Social Services' involvement. When questioned, Mr. Murphy stated he would find these incidents concerning if true. In fact, Mr. Murphy stated that it was possible that Mr. Wolf was an alcoholic, despite his evaluation. (App. 32, ll. 19-24).
Not surprisingly, somewhere between her divorce from Lyle and her marriage to Vance, Heidi began to suffer from depression. She also had problems with sleep apnea and takes anti-anxiety and anti-depressant medication. (App. p. 196; p. 13). This may explain Victoria's concerns that her mother slept a lot and was not responsive to the children's needs and schedules.
The children began to experience problems at school. While in the care of their mother, they were not getting to school on time and were not completing their homework. Victoria was tardy 13 times in 2002-2003 and 7 times in 2003-2004. (App. 230 and App. 232). LT was tardy 7 times in 2001-2002 and at least 8 times in 2005-2006. (App. 426).
While there was never much concern about the development of these children, LT repeated kindergarten. It was decided that he needed extra help and began receiving some special education services.
Heidi failed to address these deficiencies. LT was often late for class. She did not complete materials needed for LT's plan to be developed. (App. 187). She failed to assure that his homework was complete each night. (App. p. 113, ll. 8-22; p. 186, ll. 8-22). She failed to give his medication as prescribed and to assure that LT had adequate rest to make sure he was ready for the school day. (App. P. 112, l. 23; p. 113, l. 5). He continued to need special education services even though his teacher indicated he was capable of performing at grade level, with proper parental support. (App. 188).
During this time, LT was also seeing a school counselor. The counselor expressed concerns about LT. She described him as a "sad little boy". She said she was "struck by the quiet and sadness in him". She did not see this sadness when LT was discussing his father or looking forward to time with him. (App. 190). Prior to trial, Heidi abruptly ended LT's counseling and forbid the therapist from speaking with Lyle. (App. 67, ll. 12-17).
Where Heidi failed to act, Lyle stepped in. He contacted the school to obtain reading assignments. He and Marlene began to assist in the summer and on weekends. (App. 113, l. 23 and App. 114, l. 12). He enrolled LT in a summer program during his visitation to assist him with his reading problems. He read to him. (App. 79, l. 8 and App. 80, l. 10). He obtained lists of appropriate books from teachers and completed weeks of reading and homework assignments during his weekends and other periods of visitation. (App. 108, ll. 7-15). The school saw a significant difference in LT following weekends with his father. (App. 115, ll. 14-17). He was better rested and prepared for his school day following weekends with Lyle. (App. 188).
At the time of the parties' divorce, there had been no social service involvement with this family. There still has not been social service involvement in Lyle's home. While the records were fairly poor, they did indicate that services were recommended for Heidi and Vance Wolf, and that the Wolfs did not fully cooperate with the recommendations developed. (App. 267-362). Also, on at least one occasion, services were not required as Heidi advised the caseworker that she and Vance were splitting up. (App. 267). The number of reports, in fact, the number of reports by the school counselor, show that there was a real concern in the Wolf household.
At the time of the divorce, Heidi was the parent who addressed the children's medical needs. Subsequent to her move to East Grand Forks, Lyle has taken over this function. Lyle has scheduled regular dental cleanings and vision exams. He has been the parent to follow up with needed services. He has taken the children for haircuts. (App. 158-159).
LT was in need of orthodontic care. A contract with the provider was entered into and a payment plan arranged. When Heidi failed to make payments on the obligation, the devices were removed prematurely and services discontinued. It was only when Lyle engaged the services of a new provider and promised to pay for the work himself, was it completed. (App. p. 77, l. 18; p. 79, l. 4).
Heidi's involvement with the children's medical needs was to take LT for a prescription for Concerta. She followed up with that to the exclusion of Lyle, who expressed a concern about its need and its side effects. (App. p. 80, ll. 11-16; p. 81, ll. 2-12).
Victoria became too much for Heidi. The relationship between Heidi and Victoria deteriorated, due in large part to personality conflicts between Victoria and Vance. (App. 195-196). In June of 2004 she agreed that Victoria could reside with her father. Victoria began school in Grafton and thrived in the environment in her father's home. She is a member of the volleyball team, enrolled in tae kwon do, attends church regularly and holds two part-time jobs in addition to babysitting for many area families. She is on the A honor roll regularly and has never been tardy. (App. 125-126).
Victoria's relationship with her mother is poor. Much of this Victoria attributes to Vance. She is afraid of him. (App. 129, ll. 23-24). As she does not spend time at her mother's home, this has reduced her contact with her brother.
At the time of the divorce, Heidi presumably was the parent who handled the children's religious upbringing. This obligation has now switched to Lyle. Since Heidi left Crystal she has not involved the children with a church. Victoria and LT continue to attend the family church with Lyle on a regular basis. (App. 107, l. 6). They attend Sunday school and Victoria is confirmed. Lyle's wife, Marlene has been LT's teacher.
Contrasting the negative changes in Heidi's home are the positive ones in Lyle's life. The farming economy necessitated that Lyle leave farming. He also remarried. Lyle and his wife, Marlene, then moved to Grafton, where he is currently employed with the City of Grafton in the street department. (App. 154). Lyle now works regular hours. He and Marlene have a daughter together. She is 7 years old.
Lyle and Marlene have a good relationship, a nice home in Grafton, and are involved with the community and their church. Over the years they have had significant time with the Niemann children, spending all of the time awarded to Lyle in the judgment which included alternating weekends, alternating holidays, and most of the summer months.
Marlene and the children get along well. The Niemann children have a close bond with their half-sister. The family regularly goes camping, participates in family activities and belongs to a health club which they attend together.
In light of the fact that Lyle's caregiving responsibilities with the children have increased significantly since the parties' divorce to such a degree that Lyle has assumed many of the functions ordinarily performed by the custodial parent, the custody investigator appointed felt that custody of both children should be transferred to Lyle. (App. 408-409).
ARGUMENT
1. THE TRIAL COURT ERRED IN FAILING TO FIND A SIGNIFICANT CHANGE OF CIRCUMSTANCES WARRANTING A CHANGE OF CUSTODY.
The relevant standard of review for this appeal is whether the trial court's decision and findings of fact are clearly erroneous pursuant to Rule 52(a) of the North Dakota Rules of Civil Procedure. "A finding of fact is clearly erroneous if it is induced by an erroneous view of the law, if there is no evidence to support it, or if, although there is some evidence to support it, the reviewing court, on the entire evidence, is left with a definite and firm conviction that a mistake has been made." Barstad v. Barstad, 499 N.W.2d 584, 587 (N.D. 1993).
The trial court correctly interpreted North Dakota Century Code º14-09-06.6, when it found that the burden is on the moving party to show a change of material circumstances in a motion to change custody.
In 1997 when the legislature enacted 14-09-06.6 N.D.C.C. the intention was to prevent the repeated litigation of custody matters. The law limits modification proceedings to once every two years unless the court finds:
a. The persistent and willful denial or interference with visitation;
b. The child's present environment may endanger the child's physical or emotional health or impair the child's emotional development; or
c. The primary physical care of the child has changed to the other parent for longer than six months.
N.D.C.C. º14-09-06.6(3).
Lyle suggests that what this section does is create a presumption that these three exceptions create the prima facie case required in order to grant a hearing.
Here, the primary physical care of Victoria had changed to Lyle for much more than six months. The court granted Lyle's hearing based upon this fact. (App. 18). Then the court curiously suggests that this fact cannot be considered in creating a material change of circumstances for LT.
The appellant suggests that subpart (b) may apply to LT. LT's counselor said he was a sad and sullen boy. She expressed concern over his fear of his stepfather and his lack of support at his mother's home. A child's current educational and emotional problems can certainly provide the basis for a change of custody on this basis, in and of itself.
Even if there is no presumptive change of custody, this motion is brought well outside the two year window. The only thing that needs to be shown is a material change of circumstances. There are several material changes of circumstances.
A material change of circumstances is defined as "important new facts that were unknown at the time of the prior custodial decree." Kelly v. Kelly, 2002 ND 37, 17, 640 N.W.2d 38. "If the previous custody placement was based upon the parties' stipulation and not by consideration of the evidence and court made findings, the trial court must consider all relevant evidence, including pre-divorce conduct and activities, in making a considered and appropriate custody decision in the best interests of the children." Woods v. Ryan, 2005 ND 92, 11, 696 N.W.2d 508 (citing Wetch v. Wetch, 539 N.W.2d 309, 312-13 (N.D. 1995)); See also, Woods at 20 (VandeWalle, CJ. concurring). The court must first consider the best interests factors against the stability of the child's relationship with the custodial parent, and then determine whether a change in the status quo is required. Woods, supra at 28 (Maring, J. dissenting) (citing Myers v. Myers, 1999 ND 194, 10, 601 N.W.2d 264)). "A change should only be made when the reasons for transferring custody substantially outweigh the child's stability with the custodial parent." Id.
In this case, the court did not fully consider all of the circumstances in this case. A material change of circumstances has occurred. According to the GAL report submitted to the court at the time of the divorce, Heidi was a stay-at-home mother who was the primary caregiver of both children. She stated,
"Lyle and Heidi maintained a traditional marriage where Lyle was the breadwinner (by farming) and Heidi stayed home and cared for the children...Currently, due to the family's traditional lifestyle, it is Heidi who has provided the majority of the guidance and education to the children."
(App. 420).
At the time of the divorce, the children were happy and well-adjusted. The Guardian Ad Litem said, "...the children appear generally healthy, well cared for and loved. They have reached normal developmental milestones." (App. 422).
Lyle asserts numerous changes for LT and Victoria. First and foremost is Heidi's relinquishment of her caregiver role to Lyle. Lyle has become the sole physical custodian of Victoria. Lyle has also assumed this role to a large degree with LT. This change would support a change of custody. See Ryan v. Flemming, 533 N.W.2d 920, 925 (N.D. 1994). He has been the parent to make sure that medical, dental, vision and orthodontic needs are met. He has obtained all haircuts. He has attended all parent teacher conferences, completed paperwork necessary for LT's IEP, and has been the parent to assist with homework. As the court seemingly acknowledged, it is likely that LT is not failing in school due to Lyle's commitment to this.
He is the only parent to encourage the children's religious upbringing. Heidi has failed in these areas to meet even the minimal caregiving standards to keep her away from Polk County Social Service's involvement.
Marriage of a parent may constitute a change of circumstances. Dietz v. Dietz, 2007 ND 84, 13, 733 N.W.2d 225 (citing Gietzen v. Gietzen, 1998 ND 70, 10, 575 N.W.2d 924). Despite the court's belief that remarriage was contemplated, these parties did not intend to remarry at the time of divorce. In fact, the custody investigator found, "Neither Heidi or Lyle has included additional people into their personal family units. There is permanency for the children in that each parent maintains a continued relationship with the children." Ms. Wagner also found that neither parent had additional persons residing in their homes. While the court may feel that a remarriage is something that might be contemplated by the parties, based upon Heidi's history, no one would have contemplated that she would marry a man like Vance Wolf.
Lyle's marriage has been a positive one. While the children's relationship with Vance Wolf is strained (especially Victoria's), both children's relationships with Marlene Niemann are good.
"Improvements in a non-custodial parent's situation 'accompanied by a general decline in the condition of the children with the custodial parent over the same period may constitute a significant change in circumstances." Lanners v. Johnson, 2003 ND 61, 7, 659 N.W.2d 864.
The third unknown change is Heidi's decline in her health. Social Services has become involved in Heidi's life, and her mental and emotional health has suffered since becoming involved with Vance to the point that she is now taking anti-anxiety and anti-depressant medications. She suffers from sleep apnea to the point where she is fatigued during the day and unable to assist with routine parenting tasks.
Victoria's preference was well stated in her affidavit and in her testimony at trial. This Court has previously said: "A mature child's preference to live with the other parent may constitute a material change of circumstances." Tank v. Tank, 2004 ND 15, 14, 673 N.W.2d 622. "[I]f the child's preference stems from, for example, allegations of abuse or discord among members of the new step-family, the child's preference coupled with related evidence may demonstrate a significant change of circumstances." Id.
It was undisputed that, at the time of trial, Lyle had solely cared for Victoria for more than two years. This was the result of her preference to live with her father. It is also undisputed that Heidi agreed to this arrangement, which she claims was due to Victoria's inappropriate behavior and inability to get along with her stepfather. (App. 194, 195).
The court may also consider the goals behind the child's preference. Here, Victoria did not simply want to see what life was like at her dad's house, life was intolerable for her at her mother's home. (App. 173-177). She is afraid of her stepfather. (App. 129, l. 24). Victoria testified, and no one discounted, the fact that her stepfather called her names. (App. 172). Heidi states she could not handle Victoria. The fact that she could not handle a teenage child with whom no one else has issues, should also be a factor for the court's consideration.
"A material change of circumstances can occur if a child's present environment may endanger the child's physical or emotional health or impair the child's emotional development." Holtz v. Holtz, 1999 ND 105, 17, 595 N.W.2d 1. The record is replete with evidence suggesting that both children's emotional and physical health were at risk in the home. Social Services has provided ongoing assessment and services to the family based on several reports involving inappropriate behavior and allegations of abuse. The Wolfs have adult parties with drunk friends sleeping all over the house to avoid receiving DUIs. (App. 122-123). Heidi has failed to maintain any form of structure for LT and delivers him to school tardy and without his necessary medications. The custody investigator indicated that the current situation in Heidi's home has or will have a "deleterious effect on LT." (App. 403). LT has been the subject of several abuse and neglect reports, and now requires counseling. He has been described by the school counselor as "a sad, little boy." She states she is "struck by the quiet and sadness in him." This was not present at the time of divorce. It also is not present in him when he is at his dad's home.
The children are now living apart. Victoria has lived with Lyle and Marlene for more than two years. Lyle suggests that it was erroneous for the court to ignore Victoria's change of custody as a significant change. There is simply no authority for the idea that stipulated facts are not allowed to be considered by the court. In fact, the court must consider all evidence since custody was determined. Woods v. Ryan, 2005 ND 92, 11, 696 N.W.2d 508
By granting the Motion for Change of Custody as to Victoria but denying it as to LT the court, in effect, created a split custody situation. While split custody is not prohibited, it is certainly not preferred. As a general rule courts do not look favorably upon separating siblings. Leppert v. Leppert, 519 N.W.2d 287 (N.D. 1994). The court made no findings upon which to support a split custody decision.
While Heidi eventually stipulated to a change of custody for Victoria, to say that the change was agreed is not entirely accurate. Lyle was forced to bring a motion for a change of custody of Victoria. Heidi did not stipulate to this even after Victoria left her home. Heidi never proposed any form of agreement for visitation, support or other parts of the Judgment. She never financially supported her. She collected Lyle's child support for both children until the court ordered a stay of the payments. Really, all she did was fail to fight for Victoria, thus assenting to the fact that Victoria's interests are best served in the custody of her father. This, coupled with the fact that Heidi failed to pay for medical services for the children and failed to provide for the support of Victoria show that she is not disposed "to provide the child with food, clothing, medical or other remedial care..." as set forth in º14-09-06.2(1)(c).
It is undisputed that many times, a child of Victoria's age may wish to try out a custodial placement with the other parent. It's understandable that a court would be hesitant to make this fact alone a significant change of circumstances. Lyle is not asking the court to view a change of residence of one child as a significant change for all of the children, all of the time; he is simply asking the court to reconsider the impact and reasons for Victoria's absence from the Wolf home as it relates to the best interests of LT.
No one discounted the fact that Victoria was required to be the caregiver for LT, her stepbrother, and several other children while her mother and Vance partied in the yard with friends. No one suggested she was incorrect in recalling numerous drunken adults sleeping all over her home after these parties. In fact, the court relied upon affidavits not in evidence to question Victoria's credibility regarding the May 2005 domestic violence incident. This should not have occurred as the Affiant of those contradictory statements was not made available for cross examination. (App. 51; l. 19-20).
Victoria stated that the incident in May of 2005 was "really scary." LT's counselor also felt the need to report the incident to Social Services as LT was so frightened. (App. 190). Heidi's depiction of this as simply a method of avoiding conflict is nonsensical. If she did not fear for herself and the children, wouldn't she just have left the children in the home and left by herself for a while? Instead, the undisputed testimony is that the whole household was aroused and taken elsewhere to stay. Id. The children did not even have shoes on.
Victoria's relationship with her mother has also declined to a degree to where they have very little contact with each other. They are in therapy to try to resolve this but, according to Victoria, her mother is not prepared to make any changes. (App. 133). Clearly, this problematic relationship between Victoria and Heidi will have a negative affect on Victoria and LT's relationship as well, as they are dependent upon their parents to transport them to visit each other. They simply will not have much time together with the current custodial placement.
LT was a toddler when the parties divorced and, according to the GAL report, he had reached all developmental milestones. Since he has started school, he has been repeatedly late. He had to repeat kindergarten. He has been performing at significantly less than grade level. (App. 114, l. 25 and App. 115, ll. 1-5). His teachers indicate this is largely due to Heidi's failure to ensure his homework is completed. (App. 116, l. 16 and App. 117, l. 21). How can it not be a material change of circumstances for a normal, healthy child, to need special education services? Especially when his teachers and counselors have stated that he is capable of grade level work with proper parental support. (App. 115; l. 6-9). Courts applying similar standards have found a child's educational decline to be a significant change of circumstances. See e.g., In re Marriage of Fueseler, No. D046429, 2006 WL 1331535 (Cal. App. May 17, 2006) (13-year-old child's declining school performance and mother's lack of monitoring schoolwork "predominate[d] as a significant change of circumstance."), Coppersmith v. Coppersmith, No. CIV.A.AP-00-52, 2001 WL 1708027 (Me. Super.) April 12, 2001, (mother's failure to address son's educational needs, paired with son's desire to be with sister whose custody was changed to father based on agreement between parties did constitute a significant change of circumstances), Killion v. Sweat, No. E199902634COAR3CV, 200) WL 1424809 (Tenn. Ct. App.), Sept. 21, 2000 (9th grade child's steady academic decline, caused in part by excessive absences and tardiness and failure to come to class prepared, in addition to child's stated desire to live with father and mother's disparaging remarks about father to child constituted a significant change of circumstances),
A child's preference may be considered when determining whether there has been a significant change of circumstances. Kelly v. Kelly, 2002 ND 37, 19, 640 N.W.2d 38 (citing Alvarez v. Carlson, 524 N.W.2d 584, 590 (N.D. 1994)). The evidence was uncontroverted that LT expressed a preference to live with his father. The custody investigator, who has extensive training and experience in the area, did not feel LT had been coached to express this opinion, but did indicate that LT was too young to express a mature preference regarding his custody. (App. 406).
The facts of this case are strikingly similar to those set forth in Coppersmith v. Coppersmith. Supra. This Maine case was a also a post-judgment motion to change custody. In Coppersmith, the parties were divorced on August 27, 1992. At the time of the divorce Debra Coppersmith was awarded primary custody of the parties' two children, Jennifer and Kevin.
Mr. Coppersmith brought a motion to change custody in 1999. A guardian ad litem was appointed and trial held on March 28, 2000. The court heard testimony from the GAL, Michael and Debra, and Kevin's special education teacher. Because the parties agreed that Jennifer would live with her father, the central issue was who should provide Kevin's primary residence. Coppersmith vs. Coppersmith, Supra.
The GAL had been previously appointed when the father sought a change of custody in 1993. At that time he recommended no change to the children's primary residence. He now recommended a change of custody due to changes in circumstances since his earlier report. Primarily, the change of circumstances was due to the beginning of Kevin's education. During the Gal's investigation the GAL stated that from the perspective of the teachers he interviewed, Debra was unable or unwilling to address Kevin's educational needs. Kevin's teacher was supporting placement with the father as the father was the parent primarily responsible for Kevin completing his homework. The guidance counselor also testified that Kevin wanted to live with his father. She also supported custody with the father.
The Maine Court modified custody concluding that there was a substantial change of circumstances and that it would be in the best interest of Kevin and Jennifer Coppersmith to reside primarily with their father. In the order, the District Court made the following findings: (1) the parties are in agreement that Jennifer's primary physical residence should be with her father; (2) Mr. Coppersmith was best able to meet Kevin's educational needs; (3) Kevin missed his sister and wished to spend more time with her; (4) the GAL, with whom the family's current therapist agrees, recommends that the primary residence of both children be with their father; and (5) Cumberland's special education program would be more effective in meeting Kevin's needs.
In the Tennessee Court of Appeals, a child's educational needs substantiated a change of custody from mother to father. Killion v. Sweat, No. E199902634COAR3CV, 2000) WL 1424809 (Tenn. Ct. App. Sept. 21, 2000). In that case, the parents were divorced in 1987, and the mom was awarded custody. In 1998, the dad sought a change, alleging that mom did not get the child to school on time, and did not check his homework. The mom also suggested that the child was difficult to awaken in the morning. The evidence, as here, suggested that the father was more able to provide the child with structure and discipline with regard to homework and school attendance. Id.
A decline in academic performance which is caused by lack of proper parenting was also found by the court to be a significant change of circumstances in the following cases: In re Marriage of Fueseler, No. D046429, 2006 WL 1331535 (Cal. App. May 17, 2006); Brewer v. Whitney, 245 A.D.2d 842, 666 N.Y.S.2d 354 (N.Y. App. Div. 1997)
In this case, the court found that the best interests of LT were with Lyle, but did not find sufficient evidence to support a change of circumstances. The court erroneously refused to consider additional evidence involving the parties based on the fact that the initial custody of LT and the modification of Victoria's custody was established by stipulation between the parties. The law in this state is clear. The court must consider all evidence unknown to the court at the time of the prior custody order. Once the Court considers the totality of the circumstances surrounding this family, including the parties' stipulation to change Victoria's custody, LT's educational needs, and the decline in Heidi's emotional and physical health since becoming involved with Vance Wolf, Lyle Niemann respectfully suggests that the Court will find that the requisite change of circumstances exists and that there are sufficient findings regarding the best interest factors to support a change of custody.
2. THE TRIAL COURT ABUSED ITS DISCRETION WHEN IT LIMITED THE PARTIES TO TWO HOURS WITHIN WHICH TO PRESENT EVIDENCE
"A district court has broad discretion over the presentation of evidence and the conduct of trial, but it must exercise its discretion in a manner that best comports with substantial justice." See Manning v. Manning, 2006 ND 67, 30, 711 N.W.2d 149 (citing Gullickson v. Kline, 2004 ND 76, 15, 678 N.W.2d 138.). In this case, 30 affidavits were filed with the court, alleging several different incidents and allegations on the part of both parties. At the pretrial conference in this matter, the court indicated it would only allow each party two hours in which to present testimony. Both parties objected.
The limitation upon the presentation of evidence may have had a much more significant impact if counsel had not had the foresight to agree to some unconventional methods of presenting evidence.
Lyle would also suggest that this limitation likely affected his case more than Heidi's. As the moving party, Lyle had the burden of proof. While he was able to submit substantial evidence in the form of affidavits there would not have been time to present a case for a change of custody in two hours.
Lyle suggests that he met his burden, despite the severe time limitation. There were many areas that could not be testified to due to the time imposed. For example, the relationship between Victoria and LT could not be fully explored. LT's preference was not fully presented to the court due to this time constraint.
If the Supreme Court finds that Lyle did not meet his burden of proof he would suggest that this may have been due to the fact that Judge Christofferson so severely limited his time. He was able to convince the Judge that the best interests factor favored him, he likely would have prevailed if the court would have found the requisite material change of circumstances.
CONCLUSION
For the above stated reasons Appellant respectfully requests that this Court find that the District Court's failure to find a material change of circumstances in this case is clearly erroneous.
The Appellant respectfully requests that this Court reverse the District Court's Order and granting the Defendant's motion for change of custody.
In the event the Court does not feel the Appellant did show a material change of circumstances, the Appellant respectfully requests that the case be remanded for a full trial on the issues, without the time limitations imposed by the court in its pretrial order.
DATED this ____ day of July, 2007.
| Respectfully Submitted, |
| EINARSON LAW OFFICE, P.C. |
| Darcie M. Einarson (ND ID #4982) |
| 640 Hill Avenue |
| Grafton, ND 58237 |
| Telephone: (701) 352-9311 |
| Facsimile: (701) 352-4096 |
| Attorneys for the Appellant |