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. | ) | ||||||
REPLY 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 | ||
| 4. | Statement of the Case | 1 | ||
| 5. | Argument | 1 | ||
| a. | Whether a "material change of circumstances' exists is | |||
| measured from the date of divorce. | 1 | |||
| b. The Appellee's supplementation of the appendix is not | ||||
| permitted under Rule 30(b) N.D.R.App.P. | 4 | |||
| 6. | Conclusion | 5 | ||
TABLE OF AUTHORITIES
| Damron v. Damron, 2003 ND 166, ¶ 5, 670 N.W.2d 871 | 4 | ||
| Frieze v. Frieze, 2005 ND 53, ¶ 3, 692 N.W.2d, 912 | 4 | ||
| Graner v. Graner, 2007 WL 2380294 (N.D.), 2007 ND 139 ¶ 25 | 3 | ||
| Hawley v. LaRocque, 2004 ND 215, ¶ 4, 689 N.W.2d 386 | 4 | ||
| Hendrickson v. Hendrickson, 2000 ND 1, 603 N.W.2d 896 (2000) | 2 | ||
| Kelly v. Kelly, 2002 ND 37, ¶ 13, 640 N.W.2d 38 | 2,4,5 | ||
| K.M.G., Interest of, 2000 ND 50, ¶ 4, 607 N.W.2d 248 | 4 | ||
| Lagro vs. Lagro, 2005 ND 151, ¶ 13, 703 N.W.2d 322 | 4 | ||
| Lanners v. Johnson, 2003 ND 61, ¶ 4, 659 N.W.2d 864 | 4 | ||
| Lawrence v. Delkamp, 2003 ND 53, ¶ 7, 658 N.W.2d 758 | 4 | ||
| Nice-Peterson v. Nice-Peterson, 310 N.W.2d 471, 472 (Minn. 1981) | 4 | ||
| Quarne v. Quarne, 1999 N.W. 188, ¶ 10, 601 N.W.2d 256 | 3 | ||
| Roberson v. Roberson, 2004 ND 203, ¶ 4, 10, 688 N.W.2d 380 | 4 | ||
| Seibel v. Seibel, 2004 ND 41, ¶ 5, 675 N.W.2d 182 | 2,4 | ||
| Smith v. Smith, 508 N.W.2d, 222, 226-27 (Minn.Ct.App. 1993) | 4 | ||
| Tank v. Tank, 2004 ND 15, ¶ 46, 673 N.W.2d 622 | 4 | ||
| Valentine v. Lutz, 512 N.W.2d 868, 872 (Minn. 1994) | 4 | ||
| Weber, In re, 653 N.W.2d 804, 809 (Minn.Ct.App. 2002) | 4 | ||
| Wetch v. Wetch, 539 N.W.2d 309, 312-13 (N.D. 1995) | 2 | ||
| N.D.C.C. § 14-09-06.6 | 1,2,3,5 | ||
| N.D.R.App.P. 13 | 5 | ||
| N.D.R.App.P. 30 | 4 | ||
STATEMENT OF ISSUES
1. WHETHER A "MATERIAL CHANGE OF CIRCUMSTANCES" EXISTS IS TO BE MEASURED FROM THE DATE OF THE LAST MODIFICATION.
2. THE APPELLEE'S SUPPLEMENTATION OF THE APPENDIX IS NOT PERMITTED UNDER RULE 30(b) N.D.R.App. P.
STATEMENT OF THE CASE
The Appellee correctly points out that the parties were divorced in January of 1998. She also correctly suggests that Lyle brought an earlier motion for a change of custody in 2001. In that motion, the Court found that no prima facie case was shown. No evidentiary hearing was held. No order was entered modifying custody.
Heidi then includes a copy of Lyle's affidavit from 2001 in her appendix. This affidavit, she suggests, shows that her parenting was as problematic in 2001 as it is in 2006 and therefore, no significant change of circumstances has occurred.
ARGUMENT
1. WHETHER A "MATERIAL CHANGE OF CIRCUMSTANCES" EXISTS IS MEASURED FROM THE DATE OF DIVORCE.
§14-09-06.6 N.D.C.C. governs the process for bringing a motion for change of custody. This section discusses time limitations which are established based upon the "date of entry of an order establishing custody".
Heidi suggests that the Court's 2001 order denying an evidentiary hearing is such an order. Clearly it is not.
The 2001 Order did not establish custody. It merely foreclosed reconsideration of the custody determination.
While §14-09-06.6 was established in 1997 the law primarily changed the process for change of custody cases brought within two years of the prior order for custody. The law for cases brought after two years of the original order remained the same as it has been.
N.D.C.C. §14-09-06.6(6) states:
6. The court may modify a prior custody order after the two-year period following the date of entry of an order establishing custody if the court finds:
a. On the basis of facts that have arisen since the prior order or which were unknown to the court at the time of the prior order a material change has occurred in the circumstances of the child or the parties; and
b. The modification is necessary to serve the best interest of the child.
These are the same requirements set forth in cases issued prior to the enactment of the statute. Hendrickson v. Hendrickson, 2000 ND 1, ¶ 16, 603 N.W.2d 896 (2000).
The Trial Court, in 2001 did not consider all of the evidence. Nor did the Court make findings. This Court has previously stated, "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." Wetch v. Wetch, 539 N.W.2d 309, 312-13 (N.D. 1995). Clearly, the Court intends to consider all conduct not previously reviewed by a court, not just conduct since 2001.
A material change of circumstances would be important new facts that were unknown at the time of the prior custodial decree.". See Seibel v. Seibel, 2004 ND 41, ¶ 5, 675 N.W.2d 182 (citing Kelly v. Kelly, 2002 ND 37, ¶ 13, 640 N.W.2d 38).
Even if an order was entered in 2001, it did not deal with an issue of custody or a change of custody. The 2001 action does not restart the two-year moratorium on change of custody decisions. This Court has stated:
An amended judgment making only minor adjustments to peripheral issues, such as minor visitation changes, without involving any issue of or a change in designation of the custodial parent is not an order establishing custody and does not restart the two-year period limiting application of the less demanding modification standard under N.D.C.C. § 14-09-06.6(6). Quarne v. Quarne, 1999 ND 188, ¶ 10, 601 N.W.2d 256.
In a more recent case, Heather Graner argued that the Court should have applied N.D.C.C. § 14-09-06.6(5) because Jeffrey Graner's January 2006 motion to modify custody was filed within two years of the November 10, 2004, amended judgment. She claims the amended judgment made major adjustments to all three children's familial environment since custody of the oldest child was modified, and therefore the amended judgment was an order establishing custody of all three children. Graner v. Graner, 2007 ND 139, ¶ 25. The District Court disagreed with Heather Graner and found that the custody of the two youngest children had not been modified since the divorce judgment was entered in October 2002. It ruled that the 2004 amended judgment was not an order establishing custody of the two youngest children because it only modified custody of the oldest child. The Court concluded the stricter modification standard of N.D.C.C. § 14-09-06.6(5) did not apply. Id. at ¶ 26. This line of cases also seems to suggest that the fact of Victoria's changed custody by agreement also does not remove this from the less stringent requirements of §14-09-06.6. Heidi Wolf also incorrectly suggests that the Court's review is subject to the clearly erroneous standard."This Court generally applies a clearly erroneous standard when reviewing child custody modifications. See Lagro vs. Lagro, 2005 ND 151 ¶ 13, 703 N.W.2d 322. The "material change of circumstances analysis" relates to the finding of a prima facie case. The Appellant contends this determination should also be reviewed de novo. There is no case support for Heidi Wolf's premise that only changes occurring since 2001 are to be considered. The Court correctly found the requisite change in granting the request for a hearing. The Appellant merely suggests that the Court erred when it later found no change of circumstances as to L.T. 2. THE APPELLEE'S SUPPLEMENTATION OF THE APPENDIX IS NOT PERMITTED UNDER RULE 30(b) N.D.R.App.P. N.D.R.App.P.30(b) allows the Appellee the option to serve and file an appendix. That appendix may contain only items specified in Rule 30(a) that have not been included in the appellant's appendix. The information submitted by the Appellee is clearly outside of the scope of this rule. The Appellee has introduced an affidavit which was filed by the Defendant in a prior unsuccessful bid for custody of the children in 2001. This item was not a part of the record at trial. There is no indication that the Defendant asked that the Court to take judicial notice of the records filed below. The Defendant was not cross-examined in court on statements he made in this earlier affidavit. Rule 30(a) does allow pretrial orders and parts of the record to be introduced if they are relevant. In motions for change of custody, the task of the court is to determine if a material change of circumstances has occurred "on the basis of facts that have arisen since the prior order or which were unknown to the Court at the time of the prior order" establishing custody. North Dakota Century Code § 14-09-06.6(6). (emphasis added). See, Kelly v. Kelly, 2002 ND 37, ¶ 13, 640 N.W.2d 38. The Defendant does not deny that he attempted to change custody of the children previously. However, Lyle Niemann does object to the Appellate review of this affidavit since there is no evidence it was considered by the trial court in it's decision in 2006. It is therefore irrelevant to the appeal and should be disregarded. Defendant would also respectfully request that sanctions under N.D.R.App.P.13 be awarded.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. In fact, the Appellant suggests that the Court already found the requisite change as it granted the Appellant's request for a hearing on the matter of custody.The Appellant also requests costs and sanctions for the improper supplementation of the record by the Appellee. The Appellant requests that this Court reverse the District Court's order finding no change of circumstances and granting the Defendant's motion for change of custody. DATED this ____ day of September, 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 |