IN THE SUPREME COURT
STATE OF NORTH DAKOTA
| In the Interest of S.R.L. | |
| ------- | |
| Russell James Niffenegger, | |
| Plaintiff/Appellee, | |
v. | |
| Nikki Lafromboise, | |
| Defendant/Appellant. | |
| Supreme Court No. 20120282 | |
| Ramsey County District Court No. | |
| 36-2011-DM-00098 | |
BRIEF OF THE APPELLEE
Appeal from the Findings of Fact, Conclusions of Law and Order for Judgment, entered May 7, 2012, and from the Amended Findings of Fact, Amended Conclusions of Law, and Order for Amended Judgment, entered on July 20, 2012
| Patti J. Jensen, ND ID #04328 |
| GALSTAD, JENSEN & McCANN, P.A. |
| 1312 Central Avenue NE |
| P.O. Box 386 |
| East Grand Forks, MN 56721 |
| Telephone: (218) 773-9729 |
| Facsimile: (218) 773-8950 |
| pjensengjmlaw |
| ATTORNEYS FOR THE APPELLEE |
| TABLE OF CONTENTS | |||||||||
| Paragraph | |||||||||
| Table of Authorities.2 | |||||||||
| Statement of the Issues....3 | |||||||||
| I. | Whether the District Court clearly erred in not considering the home, school | ||||||||
| and community record to be a relevant best interest factor based on S.R.L.'s age....4 | |||||||||
| II. | Whether the District Court clearly erred in not specifically finding the parties would be able to communicate and cooperate effectively....5 | ||||||||
| III. Whether the District Court clearly erred in awarding the parties joint residential responsibility of S.R.L...6 | |||||||||
| IV. Whether the District Court clearly erred in awarding joint residential responsibility because the residential arrangement may need to be modified | |||||||||
| prior to S.R.L. starting school....7 | |||||||||
| Statement of the Case..8 | |||||||||
| Statement of the Facts....11 | |||||||||
| Standard of Review..23 | |||||||||
| Argument..25 | |||||||||
| I. | The District Court did not clearly err in not considering the home, school | ||||||||
| and community record to be a relevant best interest factor based on S.R.L.'s age..26 | |||||||||
| II. | The District Court did not clearly err in failing to specifically find the parties would be able to communicate and cooperate effectively30 | ||||||||
| III. The District Court did not clearly err in Awarding the parties joint residential responsibility of S.R.L.37 | |||||||||
| IV. The District court did not clearly err in awarding joint residential | |||||||||
| responsibility simply because the residential arrangement may need to be modified prior to S.R.L. starting school....42 | |||||||||
| Conclusion....48 | |||||||||
| TABLE OF AUTHORITIES | ||||
| Paragraph | ||||
| STATUES | ||||
| N.D.C.C. ch. 14-09...24 | ||||
| N.D.C.C. 14-09-06.2(1) 27 | ||||
| N.D.C.C. 14-09-06.2(1)(h) 27 | ||||
| N.D.C.C. 14-09-06.6(3).44 | ||||
| N.D.C.C. 14-09-06.6(4).44 | ||||
| N.D.C.C. 14-09-06.6(6). .44, 45 | ||||
| CASES | ||||
| Clark v. Clark, 2006 ND 182, 721 N.W.2d 6.. 44 | ||||
| Deyle v. Deyle, 2012 ND 248, 2012 WL 5974874.27, 28 | ||||
| Doll v. Doll, 2011 ND 24, 794 N.W.2d 425.... 27 | ||||
| Dufner v. Dufner, 2002 ND 47, 640 N.W.2d 694. 29 | ||||
| Fonder v. Fonder, 2012 ND 228, 2012 WL 5205715.34 | ||||
| Hammeren v. Hammeren, 2012 ND 225, 2012 WL 5205687...31 | ||||
| Haroldson v. Haroldson, 2012 ND 44, 813 N.W.2d 53944, 45 | ||||
| Holtz v. Holtz, 1999 ND 105, 595 N.W.2d 1...46 | ||||
| Jelsing v. Peterson, 2007 ND 41, 729 N.W.2d 157..39, 40, 41 | ||||
| Martire v. Martire, 2012 ND 197, 822 N.W.2d 450.24, 31, 33 | ||||
| P.A. v. A.H.O., 2008 ND 194, 757 N.W.2d 58....31, 35 | ||||
[¶3] STATEMENT OF THE ISSUES
[¶4] I. Whether the District Court clearly erred in not considering the home, school and community record to be a relevant best interest factor based on S.R.L.'s age.
[¶5] II. Whether the District Court clearly erred in not specifically finding the parties would be able to communicate and cooperate effectively.
[¶6] III. Whether the District Court clearly erred in awarding the parties joint residential responsibility of S.R.L.
[¶7] IV. Whether the District Court Clearly erred in awarding joint residential responsibility because the residential arrangement may need to be modified prior to S.R.L. starting school.
[¶8] STATEMENT OF THE CASE
[¶9] This case commenced on June 16, 2011, with the service of the Summons and Complaint upon the Appellant ("Nikki"). (Appellant Appendix ("App.") 7-10; Docket # 15.) On July 6, 2011, Nikki served an Answer and Counterclaim upon the Appellee ("Russell"). (Doc. ## 3-4; App. 11-15) On July 7, 2011, Nikki served an Amended Answer and Counterclaim upon Russell to correct the prayer for relief for daycare assistance. (App. 11-15; Doc. #6.) On August 8, 2011, Russell brought a motion of interim relief, requesting equal parenting time of S.R.L. for him and Nikki and the appointment of a parenting investigator. (Doc. #21) Nikki opposed Russell's request for an equal parenting time schedule, instead asking for only alternating weekend parenting time for Russell. (App. 20) On October 31, 2011, the District Court held the interim order hearing, and on February 29, 2012 granted a Temporary Order. (App. 119-21.) The Temporary Order granted Russell alternating weekend parenting time, mid-week parenting time, and appointed Ms. Shirley Jahnke as Parenting Investigator. (App. 119-21.) Ms. Jahnke filed a report with the court on January 20, 2012. (App. 78.) Trial was held on April 26 and 27, 2012, where the parties, parenting investigator, both parties' significant others, and other family members and friends testified. Following trial, the District Court issued oral findings on the best interest factors on the record and asked the attorneys to submit written findings, conclusions of law, and an order for judgment. (II Trial Transcript ["Tr."], at 486:4 to 493:1; 494:12-18.) [¶10] On May 7, 2012, the District Court issued its Findings of Fact, Conclusions of Law, and Order for Judgment. (App. 206-20.) On June 11, 2012, the District Court issued Amended Findings of Fact, Conclusions of Law, and Order for Judgment prior to a judgment having been entered. (App. 221-35.) Judgment, denominated as amended though the first judgment entered, was entered on September 24, 2012. (App. 236-245.) Notices of Appeal were filed by Nikki, prior to entry of Judgment, on July 2, 2012, and on July 23, 2012. (Doc. ## 115, 134; App. 246-47.) [¶11] STATEMENT OF THE FACTS [¶12] SRL was born in the year 2010 to Nikki and Russell. (App. 8, 12-13.) Nikki and Russell were never married to one another, but did have a sexual relationship. (App. 8, 12-13.) Russell and Nikki's had an initial relationship lasting over the course of a few months in October to December 2008. (II Tr. at 347:6-23.) The parties again started a sexual relationship in October of 2009. (II Tr. at 349:9-17.) This was not an emotional or dating relationship however, and the parties did not date while Nikki was pregnant. (II Tr. at 350:3-12.) [¶13] Nikki's residence had changed several times prior to trial in this case. Between 2002 and 2007 she had lived in Germany along with her husband. (I Tr. at 104:12-19; II Tr. at 288:6-11.) In at least April 2007 she had moved back to Grand Forks. (II Tr. at 288:14-19.) Nikki was divorced from her husband in 2008. (II Tr. at 12-13.) In January of 2010, Nikki moved from Grand Forks to her parents' home in Belcourt. (II Tr. at 290:22 to 291:15.) In March 2010, Nikki moved to an apartment on Kemp Avenue in Devils Lake. (II Tr. at 291:16-24.) Nikki stayed at that apartment about a year, until moving into the two-bedroom apartment she was living in at the time of trial. (II Tr. at 292:1-8.) About a week before trial, Nikki's sister, who is twenty-one years old, started living with Nikki and sharing a room with S.R.L. (II Tr. at 292:15 to 293:17.) [¶14] Russell has lived in Grand Forks since January of 2000. (I Tr. at 103:16-25.) In 2008 Russell purchased a home in Grand Forks. (I Tr. at 99:5-18.) Russell has no intention of looking for a new home or moving. (I Tr. at 100:3-5.) Russell at the time of trial was enrolled at the University of North Dakota, taking classes in anatomy and nutrition. (I Tr. 107:1-17.) These are prerequisite classes to be accepted into the nursing school. (I Tr. at 108:5-11.) Russell was doing very well in the difficult anatomy course, and fully expecting to be accepted into the nursing program. (I Tr. at 226:1-14.) If accepted and attending school fulltime, Russell's priority would be S.R.L., school, and then work. (I Tr. at 231:1-6.) [¶15] The District Court in its decision essentially accepted the recommendations of the parenting investigator, Ms. Jahnke having been convinced the same were in the child's best interest after analysis of the factors in light of the trial testimony. (II Tr. at 491:13-14.) Her report and recommendations are detailed and were filed with the court prior to trial. (App. 78-118.) In the District Court's oral findings from the bench found that it "was persuaded by Ms. Jahnke that that under these particular circumstances [joint residential responsibility] is the best course to take." (II Tr. at 491:16-18.) [¶16] Ms. Jahnke undertook significant work in this case, contacting every person requested by both Nikki and Russell except for one. (I Tr. at 10:1-13.) Ms. Jahnke had numerous interviews with the parties, both in her office and in visits to each party's home. (I Tr. at 11:12-24.) Ms. Jahnke also consulted with a psychologist, Dr. April Bradley. (I Tr. at 44:19 to 45:5.) After speaking with Dr. Bradley, Ms. Jahnke was more convinced about her recommendation for S.R.L. of joint residential responsibility and relied upon her advice. (I Tr. at 44:1-23.) [¶17] Ms. Jahnke's home visits with Russell showed he is a very attentive father and that S.R.L. is very well adjusted in his home. (I Tr. at 14:2 to 16:15.) Ms. Jahnke also expressed that she has basically no concerns for Nikki as a caregiver to S.R.L. (I Tr. at 66:14-21.) Ms. Jahnke did have some concern for S.R.L.'s wellbeing because of Nikki's cigarette smoking and possible breastfeeding S.R.L. after having consumed alcohol. (I Tr. at 66:24 to 67:9.) [¶18] Ms. Jahnke provided the court with her analysis of each best interest statutory factor. (App. 107-12.) She opined neither party was favored under a majority of the factors. (I Tr. at 20:15 to 21:8.) Ms. Jahnke stated factor (d) slightly favored Nikki because S.R.L. had been in Nikki's care since her birth. (I Tr. at 28:20 to 29:6.) Ms. Jahnke also acknowledged the length of time S.R.L. had been with Nikki was through no fault of Russell, and is rather a symptom of court related delays and other factors over which Russell has no control. (I Tr. at 29:7-25.) [¶19] She also testified factor (e) favored Russell slightly. (I Tr. at 34:22 to 37:19.) Ms. Jahnke noted Nikki has not always been cooperative with Russell's parenting time. (See id.) According to Ms. Jahnke this was due to "Nikki [having] some residual feelings about her relationship with Russell and that when Angie came on the scene things deteriorated and became more difficult for Russell to see S.[R.L.]" (I Tr. at 35:7-10.) The parties also testified about an instance of Nikki not allowing Russell to take S.R.L. out of daycare early on a mid-week parenting time period, despite his having taken time off work to drive to Devils Lake to do so. (I Tr. 111:1 to 112:23; II Tr. at 305:21 to 307:15.) [¶20] Despite the finding that factor (e) slightly favored Russell, the record also contains evidence Russell and Nikki have, and can in the future, communicate and work together. Nikki testified that "in time" she thinks her and "Russell will be able to make decisions together." (II Tr. at 362:2-4.) She also testified that the parties were able to compromise on the start time of Russell's weekend parenting time. (II Tr. at 307:16-22.) Ms. Jahnke also testified she believed the parties would be able to move on and cooperate once the litigation was completed. (I Tr. at 47:6-17.) She also testified that Russell and Nikki will be able to "cooperatively communicate with one another it they both set their mind to it." (I Tr. at 49:7-10.) She also stated Nikki and Russell will be able to thoroughly discus important decisions for S.R.L. (I Tr. at 69:15-25.) Russell testified he was expecting the communication and cooperation between him and Nikki to improve following this litigation. (I Tr. at 143: 5-9.) Russell also testified this cooperation and respect is something he finds important and as being a way to allow S.R.L. to thrive. (I Tr. at 142:19 to 143:4.) Russell testified he would be cooperative with Nikki in dealing with parenting time issues that arose. (I Tr. at 143:15-23.) [¶21] Both Nikki and Russell are involved in dating relationships with other people. Russell is in a very committed relationship with Angela Saurdiff. (I Tr. at 243:18-22.) Angela is a licensed addiction counselor and also provides in-home family therapy. (I Tr. at 237:3-7.) Angela is working on her licensed independent clinical social worker license, in order to independently provide therapy. (I Tr. at 237:8 to 238:2.) While Russell and Angela have set no marriage date, they both have intentions to get married to one another. (I Tr. at 243:7 to 244:4.) Angela moved into Russell's home, but would not have done so if she did not intend to get married. (I Tr. at 243:23 to 244:1.) Angela has no children. (I Tr. at 13:25 to 14:1.) Ms. Jahnke also noted Russell and Angela's relationship is very committed. (I Tr. at 13:2-9.) Ms. Jahnke noted following her home visits with Russell that Angela and S.R.L. had "very strong interactions" and she had no concerns with Angela's interactions and role with S.R.L. (I Tr. at 16:7-15.) Angela testified S.R.L. has no confusion about who is the child's mother, and it not trying to replace Nikki as a mother, but to be a good adult role model for S.R.L. (I Tr. at 251:22 to 252:14.) [¶22] Nikki also is dating another person: Sam Shively. (II Tr. at 270:9-12.) Sam has three children with two different mothers. (II Tr. at 271:12-16; 274:1-4.) He has primary residential responsibility one on one but not the other two. (II Tr. at 271:14 to 272:19; 274:5-7.) He has not seen those two children in months and has no parenting time order in place. (II Tr. at 272:13-19.) He was divorced from the mother of the child for whom he has primary residential responsibility. (II Tr. at 274:10-14.) Sam and Nikki had been dating for a bit over a year, were not living together, and had no intentions on marriage. (II Tr. at 273:19-25; 280:13-17.) Ms. Jahnke noted that Sam is supportive of Nikki, but is unsure of whether there is commitment between them. (I Tr. at 13:10-16.) Sam was not in Nikki's home when Ms. Jahnke conducted her home visit. (I Tr. at 69:1; App. 82-83, 95-97.) [¶23] STANDARD OF REVIEW [¶24] A decision on an award of residential responsibility under N.D.C.C. ch. 14-09 is reviewed under the clearly erroneous standard. Martire v. Martire, 2012 ND 197
a finding of fact . . . will not be reversed on appeal unless it is induced by an erroneous view of the law, if no evidence exists to support it, or if on the entire record we are left with a definite and firm conviction a mistake has been made. A choice between two permissible views of the weight of the evidence is not clearly erroneous.
Id. (citations omitted).
[¶25] ARGUMENT
[¶26] I. The District Court did not clearly err in not considering the home, school, and community record to be a relevant best interest factor based on S.R.L.'S age.
[¶27] The best interest factors for determining awards of primary residential responsibility are contained in N.D.C.C. § 14-09-06.2(1). Factor (h) states a court must consider in the best interest analysis "The home, school, and community records of the child and the potential effect of any change." N.D.C.C. § 14-09-06.2(1)(h). When looking at the best interest factors, a district court "must consider all relevant factors specified in N.D.C.C. § 14-09-06.2(1)." Doll v. Doll, 2011 ND 24, ¶ 7, 794 N.W.2d 425 (emphasis added). A district court's custody award is not clearly erroneous because it determines a particular factor is irrelevant. See Deyle v. Deyle, 2012 ND 248, ¶¶ 5, 16, 2012 WL 5974874 (noting district court found certain factors irrelevant but still affirming award of primary residential responsibility).
[¶28] In Deyle, this Court held a district court could properly ignore one of the best interest factors when there was no evidence presented to which it was relevant. Id. ¶¶ 5, 13-14. The Deyle district court had found factor (k) was irrelevant, which this Court confirmed as appropriate because there was no evidence the parties' new romantic interests would have a negative impact on the child. Id. ¶¶ 13-14. Like Deyle, the District Court in this case determined one of the factors, factor (h), was not applicable to the best interests analysis. (App. 225.) The record in this case likewise this was a proper finding. There is no evidence S.R.L. is strongly tied to her community in Devils Lake or Grand Forks and she is not in a school setting due to her age. (I Tr. at 24:1 to 26:9.) Further, the evidence shows S.R.L. is very well adjusted to both Russell's and Nikki's homes, and there would be no impact in any change. (I Tr. at 14:2 to 15:10.) Like the inapplicable factor in Deyle, there simply is not significant evidence in the record on the home, school, and community records of S.R.L.
[¶29] In Dufner v. Dufner, 2002 ND 47, ¶ 19, 640 N.W.2d 694, this Court held a district court properly granted a father primary residential responsibility based on the child's strong attachment to the father's community. In Dufner, the mother had left Buxton for Grand Forks while the divorce was pending. See id. This Court said it was proper to use factor (h) to favor an award of primary residential responsibility to the father because of the strong attachment the children had to the Buxton community and school system. Id. This Court also noted the children had significant extended family that lived in Buxton as well. Id. Unlike Dufner, there is nothing in the record to indicate S.R.L. is strongly attached to the Devils Lake community. Rather the overwhelming evidence in the record is that S.R.L. is thriving in both homes and communities. Accordingly, the District Court's decision on factor (h) is not clearly erroneous.
[¶30] II. The District Court did not clearly err in failing to specifically find the parties would be able to communicate and cooperate effectively.
[¶31] In North Dakota there is no presumption against a rotating, or shared primary residential responsibility. Hammeren v. Hammeren, 2012 ND 225, ¶ 23, 2012 WL 5205687. "[A]lthough rotating residential responsibility is not per se erroneous, a court's findings must support the conclusion such alternating custody is in the child's best interests." Id. In certain instances an award of joint residential responsibility is appropriate, even without a finding the parties can communicate and cooperate, and even a finding that they cannot communicate or cooperate. Martire, ¶¶ 18-19. This Court has also affirmed an award of joint residential responsibility when there is material in the record that the parents can cooperate, but not specific finding of the district court on cooperation. See P.A. v. A.H.O., 2008 ND 194, ¶¶ 17-20, 757 N.W.2d 58.
[¶32] In the District Court's Findings of Fact it specifically adopts by reference Ms. Jahnke's recommendations in her report. (App. 207-08.) In her report Ms. Jahnke stated she believes the parties will be able to set aside their differences once the litigation is completed and there is a set schedule in place. (App. 113.) The District Court also acknowledged relying on Ms. Jahnke's recommendations, and that under this set of circumstances, including the future ability to communicate, this is the best thing for S.R.L. (II Tr. at 501:11-20.) The District Court also specifically ordered the parties to adopt a communication procedure. (App. 232.)
[¶33] In Martire, this Court held an award of joint residential responsibility in a case where the parents could "agree 'on virtually nothing' and that neither party is willing to facilitate a continuing relationship between the other parent and the children." Id. ¶ 18. Despite this animosity, this Court approved joint residential responsibility in such a difficult case because it had no other options. Id. ¶ 19. Like Martire, this is a difficult case, and in the words of the parenting investigator, joint residential responsibility is the "only solution in this case." (I Tr. at 51:2-6.) Like the difficult case in Martire, in this case the only feasible option to foster a meaningful relationship with both parents was joint residential responsibility. Also significant in Martire, was the detailed plan the district court had ordered regarding implementing the joint residential responsibility. Id. ¶ 19. Like the order in Martire, the District Court gave a detailed order regarding decision making authority and communication between Russell and Nikki. (App. 212-19.)
[¶34] In Fonder v. Fonder, 2012 ND 228, ¶ 30, 2012 WL 5205715, this Court held an award of joint residential responsibility was appropriate in a case even where the district court did not make a specific finding that this arrangement was in the best interest of the child. Rather, this Court inferred from the district court's full analysis of each applicable best interest factor that the district court had made a finding that joint residential responsibility was in the child's best interests. Id. ¶ 27. Like Fonder, reading all of the findings of the District Court in this case, it is clear the court found joint residential responsibility was the best thing for S.R.L. Further, the District Court specifically made this finding. (II Tr. at 491:13-18; App. 211.)
[¶35] Likewise, in P.A., the district court did not specifically make a finding the parties would be able to cooperate and communicate. Id. ¶ 19. However, this court noted there need not be a specific finding when there is evidence in the record of past cooperation, despite some past conflict, and an affirmation by the parents to work towards better cooperation for their child. Id. ¶ 20. Like P.A., there is ample evidence the parties have cooperated in the past and have affirmed a desire to cooperate in the future. Ms. Jahnke noted the parties cooperated early on in S.R.L.'s life. (I Tr. at 35:11-14; App. #32). Nikki testified she would be able to make decisions with Russell in the future. (II Tr. at 362:2-4.) Russell likewise testified things would improve in the future. (I Tr. at 142:19 to 143:23.)
[¶36] Because the District Court found joint residential responsibility was in S.R.L.'s best interests, the District Court's overall findings of fact support that decision, and the record contains evidence of past and future cooperation and communication, despite some obstacles, the District Court did not clearly err in awarding joint residential responsibility of S.R.L.
[¶37] III. The District Court did not clearly err in awarding the parties joint residential responsibility of S.R.L.
[¶38] Nikki essentially argues the District Court erred in not awarding her primary residential responsibility because she has been the primary parent for S.R.L. prior to litigation. (Appellant Br. ¶¶ 44, 49-50.) Her argument essentially asks this Court to reweigh the factors the District Court considered.
[¶39] This Court has said it only takes a limited review of awards of residential responsibility:
We exercise a limited review of child custody awards. A district court's decisions on child custody, including an initial award of custody, are treated as findings of fact and will not be set aside on appeal unless clearly erroneous. A finding of fact is clearly erroneous if it is induced by an erroneous view of the law, if no evidence exists to support it, or if the reviewing court, on the entire evidence, is left with a definite and firm conviction a mistake has been made. Under the clearly erroneous standard of review, we do not reweigh the evidence or reassess the credibility of witnesses, and we will not retry a custody case or substitute our judgment for a district court's initial custody decision merely because we might have reached a different result. A choice between two permissible views of the weight of the evidence is not clearly erroneous . . . and our deferential review is especially applicable for a difficult child custody decision involving two fit parents.
Jelsing v. Peterson, 2007 ND 41, ¶ 11, 729 N.W.2d 157.
[¶40] In Jelsing, ¶ 17, this Court affirmed an award of primary residential responsibility to a mother, despite a father's position they should have had joint residential responsibility. Though Jelsing was a "close call," the district court in that case determined the mother should have residential responsibility because of the mother had "always been, the 'closest, nurturing parent' for the child." Id. In affirming this award, this Court noted its job is not to reweight the evidence or judge credibility, writing, "we recognize the admonishment of N.D.R.Civ.P. 52(a) that 'due regard shall be given to the opportunity of the trial court to judge the credibility of the witnesses.'" Id.; see also id. ¶ 16 (this Court stating it would not reweigh the best interest factors.) Compared to this case, there are two significant differences.
[¶41] First, in Jelsing, the appellant was seeking to reverse an award of primary residential responsibility to the other parent. Unlike that case, Nikki is seeking to reverse the "close case" that the District Court found in favor of joint residential responsibility, and specifically stated was in S.R.L.'s best interests. (App. 207-08, 211.) Second, though not a mathematical formula, the district court in Jelsing found two factors favored the award to the mother and only one favored an award to the father. Id. ¶ 12. Unlike Jelsing, the District Court found one factor favored Nikki and two favored Russell. (App. 208-11.) The District Court found factor (d) favors Nikki and factors (e) and (k) favor Russell. (App. 208-11.) This is a difficult case involving two fit parents, and as such, this court should not reweigh the evidence and, like Jelsing, should affirm the decision.
[¶42] IV. The District Court did not clearly err in awarding joint residential responsibility simply because the residential arrangement may need to be modified prior to S.R.L. starting school.
[¶43] Nikki argues the trial court's award is also clearly erroneous because it might be difficult to modify the award in the future. (Appellant Br. ¶¶51, 57-59.) Her position also assumes many facts and circumstances in arguing there would be no basis for modification of custody in the future, if need be. (Appellant Br. ¶¶ 57-59.)
[¶44] In order to modify primary residential responsibility, the moving party must complete a two-step process. See N.D.C.C. § 14-09-06.6(4); Clark v. Clark, 2006 ND 182, ¶¶ 2, 20, 721 N.W.2d 6 (applying section 14-09-06.6 to joint residential responsibility). To modify the residential responsibility order within two years of an original order, a district court must find as a condition precedent either:
a. The persistent and willful denial or interference with parenting time;
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 residential responsibility for the child has changed to the other parent for longer than six months.
N.D.C.C. § 14-09-06.6(3). If the district court makes a finding on the above, or if the motion is brought two years after the prior order, the district court may modify primary residential responsibility
. . . 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.
N.D.C.C. 14-09-06.6(6). Under § 14-09-06.6(6), a "material change" means "important new facts that were unknown at the time of the initial custody decree. Haroldson v. Haroldson, 2012 ND 44, ¶ 17, 813 N.W.2d 539.
[¶45] In Haroldson, this Court affirmed a finding of a material change in circumstances in modifying a joint residential responsibility arrangement. Id. ¶ 17. The district court had found a material change under § 14-09-06.6(6) "because all three children were now in school, while only one child was in school when the parties divorced, and [the mother] was now engaged and living with her fiancé." Id. ¶ 4. This Court affirmed the finding that a material change had occurred justifying a modification of this joint residential responsibility arrangement. Id. ¶ 18. Like the material change in Haroldson, the District Court could find a material change once S.R.L. becomes school aged.
[¶46] Similarly, in Holtz v. Holtz, 1999 ND 105, ¶ 17, 595 N.W.2d 1, this Court affirmed a finding of a material change of circumstances as a child aged. This Court stated "even if the trial court in this case knew at the time the divorce decree was entered that [the child]'s needs would change as she grew older, we do not believe the trial court was foreclosed from finding a material change of circumstances." In Holtz, the mother was granted custody of a four year old girl in a default trial. Id. ¶ 2. The mother had learning and developmental disabilities, which the district court was aware of at the time of trial. Id. ¶ 3. When the child was seven, the father brought a motion to change custody, arguing the mother could not properly parent the growing child. Id. ¶ 5. The district court found a material change solely because the child's aging while the mother's learning and developmental disabilities were continued. Id. ¶ 7. This Court stated a material change in circumstances was property found when the mother's ability to provide emotional and developmental guidance did not keep pace with the child's age and development. Id. ¶ 17. Like the situation in Holtz, the simple fact of aging by S.R.L. may be considered a material change in circumstances, despite the fact the District Court was aware that children grow up. As S.R.L. grows and becomes eligible for school her needs would have changed, and the District Court could find a material change in order for her to attend school.
[¶47] Finally, arguing an original award of residential responsibility is wrong because modification cannot be had assumes modification will be necessary and will not have a good basis if or when the motion is brought. It assumes Russell and Nikki will still live in the same towns, have the same significant others, and will have the same family dynamics. The District Court acknowledged it does not know what the future might hold for the parties with regard to moving, school, or their significant others. (II Tr. at 494:1-7.) Likewise, the parenting investigator acknowledged the future might not be known for the parties, but that this arrangement was in S.R.L.'s best interests right now. (App. 113.) Because invalidating the award of joint residential responsibility would call for this Court to speculate on the need or circumstances surrounding any future modification it should not accept Nikki's invitation to do so.
[¶48] CONCLUSION
[¶49] Based on the foregoing law and argument, Russell respectfully requests that this Court AFFIRM the decision of the District Court.
| Dated 13th day of December, 2012 | |||||||||
| [¶51] | |||||||||
| /s/Patti J. Jensen | |||||||||
| Patti J. Jensen, ND ID #04328 | |||||||||
| GALSTAD, JENSEN & McCANN, P.A. | |||||||||
| 1312 Central Avenue NE | |||||||||
| P.O. Box 386 | |||||||||
| East Grand Forks, MN 56721 | |||||||||
| Telephone: (218) 773-9729 | |||||||||
| Facsimile: (218) 773-8950 | |||||||||
| pjensengjmlaw | |||||||||
| ATTORNEYS FOR THE APPELLEE | |||||||||