IN THE SUPREME COURT
STATE OF NORTH DAKOTA
|In the Interest of S.R.L.|
|Russell James Niffenegger,|
Plaintiff and Appellee,
|Nikki Lynne LaFromboise|
|Defendant and Appellant.||Supreme Court No. 20120282|
|Ramsey Co. No. 2011-DM-00098|
BRIEF OF APPELLANT
Appeal from Order for Judgment
Dated May 8, 2012
In the District Court of Ramsey County, North Dakota
The Honorable Judge Donovan Foughty Presiding
|Michael P. Hurly (N.D. ID #06355)|
|TRAYNOR LAW FIRM, PC|
|509 5th St. NE, Suite 1|
|P.O. Box 838|
|Devils Lake, N.D. 58301-0838|
|Telephone: (701) 662-4077|
|Attorneys for Nikki Lynne LaFromboise|
|TABLE OF CONTENTS|
|TABLE OF CONTENTS||ii|
|TABLE OF AUTHORITIES||iv|
|STATEMENT OF THE ISSUES||vi|
|STATEMENT OF THE CASE||1|
|STATEMENT OF FACTS||2|
|STANDARD OF REVIEW||22|
|I. WHETHER THE TRIAL COURT MADE A CLEAR ERROR BY MAKING NO FINDING THE HOME, SCHOOL, AND COMMUNITY RECORD OF THE TODDLER AND THE POTENTIAL EFFECT OF ANY CHANGE WAS NOT APPLICABLE WHEN THE TODDLER HAD SPENT THE MAJORITY OF HER LIFE IN DEVILS LAKE, NORTH DAKOTA AND THE PARENTS LIVE NINETY MILES APART|
|II. WHETHER THE TRIAL COURT MADE A CLEAR ERROR IN NOT MAKING A FINDING THE PARTIES WOULD BE ABLE TO COMMUNICATE AND COOPERATE SUFFICIENTLY TO SET ASIDE THEIR DIFFERENCES|
|III. WHETHER THE TRIAL COURT MADE A CLEAR ERROR IN NOT AWARDING NIKKI PRIMARY RESIDENTIAL RESPONSIBILITY WHEN THE TODDLER HAS ALWAYS LIVED UNDER HER CARE AND BOTH PARTIES WERE FOUND TO BE GOOD PARENTS|
|IV. WHETHER THE ORDER CREATES A PROBLEM FOR THE PARTIES TO MODIFY PRIMARY RESIDENTIAL RESPONSIBILITY AS SUCH MODIFICATION IS GOVERNED BY SECTION 14-09-06.6, N.D.C.C.|
|TABLE OF AUTHORITIES|
|Beck v. Beck,|
|86 N.J. 480, 432 A.2d 63 (1981)||28|
|Dufner v. Trottier,|
|2010 ND 31, 778 N.W.2d 586||56, 59|
|Dunn v. Dunn,|
|2009 ND 193, 775 N.W.2d 486||56|
|Hanisch v. Osvold,|
|2008 ND 214, 758 N.W.2d 421||27|
|Heinen v. Heinen,|
|452 N.W.2d 331 (N.D. 1990)||51|
|Jelsing v. Peterson,|
|2007 ND 41, 729 N.W.2d 157||45, 46|
|Kaloupek v. Burfening,|
|440 N.W.2d 496 (N.D. 1989)||24, 29|
|Lapp v. Lapp,|
|293 N.W.2d 121 (N.D. 1980)||29|
|Moilan v. Moilan,|
|1999 ND 103, 598 N.W.2d 81||22|
|Muller v. Muller,|
|643 So.2d 478 (La. App. 3 Cir. 1994)||28|
|P.A. v. A.H.O.,|
|2008 ND 194, 757 N.W.2d 58||passim|
|Peek v. Berning,|
|2001 ND 34, 622 N.W.2d 186||passim|
|N.D.C.C. § 14-09-06.2||25|
|N.D.C.C. § 14-09-06.2(1)||27, 45|
|N.D.C.C. § 14-09-06.2(1)(d)||44|
|N.D.C.C. § 14-09-06.2(1)(h)||25, 26, 27, 37|
|N.D.C.C. § 14-09-06.6||57, 58, 59|
|N.D.C.C. § 14-09-06.6(1)||47, 53|
|N.D.C.C. § 14-09-06.6(3)||53|
|N.D.C.C. § 14-09-06.6(4)||52|
|N.D.C.C. § 14-09-06.6(6)||55|
|N.D.C.C. § 14-09-06.6(6)(a)||56|
|Webster's Ninth New Collegiate Dictionary 921 (9th ed. 1987)||31|
STATEMENT OF THE ISSUES
I. Whether the trial court made a clear error by making no finding the home, school, and community record of the toddler and the potential effect of any change was not applicable when the toddler had spent the majority of her life in Devils Lake, North Dakota and the parents live ninety miles apart.
II. Whether the trial court made a clear error in not making a finding the parties would be able to communicate and cooperate sufficiently to set aside their differences.
III. Whether the trial court made a clear error in not awarding Nikki primary residential responsibility when the toddler has always lived under her care and both parties were found to be good parents.
IV. Whether the order creates a problem for the parties to modify primary residential responsibility as such modification is governed by section 14-09-06.6, N.D.C.C.
STATEMENT OF THE CASE
[¶ 1] This is an appeal from the Findings of Fact, Conclusions of Law, and Order for Judgment entered May 8, 2012 (App. 206-20); and from the Amended Findings of Fact, Conclusions of Law, Order for Amended Judgment and Amended Judgment entered July 20, 2012 (App. 221-35); and from the Amended Judgment and Decree subsequently entered on September 24, 2012. (App. 236-45). For the sake of clarity and brevity, the three aforementioned court documents (App. 206-20, 221-35, 236-45) are hereinafter collectively referred to as the "May 7, 2012 order." Notice of Appeal was timely filed on July 2, 2012, and July 23, 2012. (App. 246).
STATEMENT OF FACTS
[¶ 2] This is an action commenced by a Summons and Complaint on June 14, 2011, for the primary residential responsibility of S.R.L., a two year old toddler. (App. 7-8). The Plaintiff-Appellee Russell James Niffenegger ("Russell") and Defendant-Appellant Nikki Lynne LaFromboise ("Nikki") were never married, but engaged in sexual intercourse resulting in the birth of S.R.L. in 2010. (App. 8, 11).
[¶ 3] Russell is 29 years old and lives in Grand Forks, North Dakota. (App. 135, Tr. 99, lns. 4-5, 24). Russell works at Ye Ol Painters in Grand Forks, North Dakota and plans to attend the UND nursing program. (App. 141, Tr. 107, lns. 1-5; App, 142, Tr. 110, ln. 2)
[¶ 4] Nikki is 31 years old and lives in Devils Lake, North Dakota. (App. 159, Tr. 320, ln. 11; App. 160, Tr. 334, lns. 2-3). Nikki currently works for the Bureau of Indian Affairs ("BIA") in Fort Totten, North Dakota. (App. 162, Tr. 341, lns. 24-25; App. 189, Tr. 469 ln. 24; App. 190, Tr. 470 lns. 5-6).
[¶ 5] Russell and Nikki first met at Sensations Bar in Grand Forks, North Dakota around the months of October or November of 2008. (App. 164, Tr. 347, lns. 5-10). They went on a few dates and hung out, but the relationship ended in December 2008. (App. 164, Tr. 347, lns. 17-18). At that time, Nikki and Russell both lived in Grand Forks, North Dakota. (App. 165, Tr. 348, lns. 1-3). Russell was working at Ye Ol Painters in Grand Forks, North Dakota. (App. 142, Tr. 110, lns. 1-2; App. 165, Tr. 348, lns. 9-10). Nikki was working part time at the Stadter Center in Grand Forks and going to college, double majoring in criminal justice and sociology. (App. 165, Tr. 348, lns. 10-13; App. 162, Tr. 341, ln. 20).
[¶ 6] Although the parties had ceased dating in December 2008, the parties started to have a sexual relationship in January 2009. (App. 165, Tr. 348, lns. 24-25; App. 166, Tr. 349, lns. 1-2). Nikki then began a dating relationship with a co-worker at the Stadter Center in July 2009. (App. 185, Tr. 396, lns. 11-12). The relationship with the co-worker ended in October 2009. Id. at lns. 9-10. Russell and Nikki resumed a relationship in October 2009. (App. 166, Tr. 349, lns. 16-17).(1) Shortly thereafter Nikki found out she was pregnant.
[¶ 7] Russell asked for a paternity test. (App. 139, Tr. 104, lns. 24-25; App. 140, Tr. 105, lns. 1-2).
[¶ 8] Nikki and Russell did not continue their relationship while Nikki was pregnant with S.R.L. (App. 167, Tr. 350, lns. 10-12).
[¶ 9] Russell claims "[t]he parties did not really have a relationship . . ." (See App. 17, ¶ 5). According to the custody investigator, Russell believed there was no real relationship beyond casual sex. (App. 126, Tr. 36, lns. 11-12). The custody investigator testified that Nikki was hurt about how the relationship fell apart. Id. at lns. 8-9, 24-25.
[¶ 10] Nikki moved to Devils Lake in March 2010 to begin working for the BIA at Fort Totten, North Dakota. (App. 160, Tr. 334, lns. 11-12; App. 162, Tr. 341, lns. 24-25; App. 163, Tr. 342, lns. 1-2; App. 189, Tr. 469, lns. 24-25; App. 190, Tr. 470, ln. 3).
[¶11] S.R.L. was born the following summer of 2010 at Altru Hospital in Grand Forks. (App. 138, Tr. 103, lns. 11-12). Russell was present at the hospital when S.R.L. was born. (App. 131, Tr. 69, lns. 20-21; App. 168, Tr. 351, lns. 7-18).
[¶ 12] After S.R.L. was born, Nikki and the baby stayed at Russell's home for a period of a few days to a couple of weeks. (App. 145, Tr. 132, lns. 17-19; App. 169, Tr. 352, lns. 14-16). Russell invited Nikki and S.R.L. to live at his home during Nikki's maternity leave. (App. 145, Tr. 132, lns. 24-25). Nikki had already moved to Devils Lake and spent time between her home in Devils Lake and at her parents' home near Belcourt, North Dakota, until S.R.L. was five weeks old. (App. 169, Tr. 352, lns. 17-25; App. 161, Tr. 335, lns. 9-12). When S.R.L. was five weeks old Nikki stayed with Russell for a week. (App. 169, Tr. 352, lns. 18-19). After that, Nikki moved back to Devils Lake.
[¶ 13] Shortly thereafter, Russell began to see his daughter every other weekend. (App. 170, Tr. 353, lns. 24-25). Nikki did not actively call Russell to spend time with his daughter. Instead she left it to him to initiate visits. (App. 170, Tr. 353, ln. 25; App. 171, Tr. 354, lns. 1-2; See also App. 19-22). Communication and sharing information was not good between the parties during this period. (App. 38, lns. 19-24).
[¶ 14] Nikki received no financial support from Russell other than helping with daycare expenses. (App. 172, Tr. 355, lns. 4-5, 6-7). Eventually, Nikki initiated a child support action against Russell on November 6, 2010, with a notice of Entry of Judgment being filed on or about January 12, 2011. (App. 197-202; App. 172, Tr. 355, lns. 17-20). Russell was ordered to pay $362 in child support to Nikki. (App. 197-202).
[¶ 15] Russell began a relationship with Angie Saurdiff ("Angie") around February 2011. (App. 136, Tr. 101, lns. 15-23). Angie first met S.R.L. March 2011. (App. 153, Tr. 241, lns. 14-15). When Angie came into Russell's life, "things deteriorated and became more difficult for [him] to see [S.R.L.]." (App. 125, Tr. 35, lns. 8-9). Prior to Angie's appearance, it appears the parties were working with each other to some degree. Id. at lns. 11-5. The relationship between Nikki and Russell deteriorated after Russell became involved with Angie. Id. at lns. 15-16, See also App. 38, lns. 19-24.
[¶ 16] In April 2011, Nikki noticed a changed in Russell. (App. 173, Tr. 356, ln. 18). Russell was upset about a weekend visit that did not occur due to an apparent change in plans between the parties. Id. at lns. 20-21. Shortly after this, Russell began wanting a fifty-fifty visitation schedule. (App. 173, Tr. 356, ln. 25; App. 174, Tr. 357, ln. 1). The fifty-fifty request came as a "huge surprise" to Nikki. Id. at ln. 8.
[¶ 17] The parties agreed upon a schedule of every other weekend, with some holidays, occurring from April 2011 until October 2011. (App. 175, Tr. 358, lns. 22-23; App. 176, Tr. 361, lns. 2-3). There are allegations of problems with exchanges of the toddler. Id. at ln. 10. Finally, Russell commenced an action for primary residential responsibility in June 2011. (App. 7-8).
[¶ 18] An interim order was filed on March 1, 2012. (App. 119-121). Russell was granted alternating weekends from Friday at 6:30 p.m. until Sunday at 5:30 p.m. Id. If Russell was available on Friday he could take his daughter on Thursday at 6:30 p.m. until Sunday at 5:30 p.m. Id. Russell was also granted parenting time every other Wednesday. Id. Russell was to provide Nikki twenty-four hours notice of his intent to exercise his parenting time other than in regard to the alternating weekends. Id.
[¶ 19] A custody investigator was appointed. Id.
[¶ 20] A two day trial was held on April 26 and 27, 2012, at the Ramsey County Courthouse in Devils Lake, North Dakota.
[¶ 21] At trial, the following issues between the parties were shown:
The parties cannot agree on the last name of the toddler. (App. 137, Tr. 102, lns. 19-25; App. 138, Tr. 103, ln. 5).
Joint residential responsibility is resisted (App. 127, Tr. 46, ln. 46; App. 128, Tr. 47, lns. 1-5).
Angela, Russell's girlfriend, videotaped Nikki during exchanges of the toddler. (App. 129, Tr. 58, lns. 8-10; App. 149, Tr. 152, lns. 17-23).
Russell audio recorded exchanges of the toddler. Id.
Russell has been "nitpick[ing]" and critical of Nikki's parenting. (App. 130, Tr. 65, lns. 19-23; App. 181, Tr. 373, lns. 17-25; App. 182, Tr. 374, ln. 8).
The parties are not of the same religious faith. Russell does not belong to a particular church. (App. 147, Tr. 137, lns. 20-23). Nikki is Roman Catholic. (App. 157, Tr. 282, ln. 9). S.R.L. was baptized a Catholic. (App. 146, Tr. 135, lns. 5-6).
Russell claims he has had consistent problems with Nikki cooperating with parenting times. (App.143, Tr. 112, lns. 11-13; App. 148, Tr. 144, lns. 17-19; App. 154, Tr. 249, lns. 8-11).
Nikki does not allow Russell to pick up S.R.L. at day care. Id. at lns. 20-23.
S.R.L.'s daycare provider in Devils Lake will not allow Russell's girlfriend to pick up the toddler. (App. 134, Tr. 78, lns. 6-10; App. 188, Tr. 435, lns. 13-14).
Russell finds preschool to be beneficial to children and wants S.R.L. to attend school every other week in Grand Forks and Devils Lake. (App. 150, Tr. 160, lns. 24-25; App. 123, Tr. 16, lns. 1-3).
According to the custody investigator, Angela, Russell's girlfriend, and Nikki do not get along. (App. 151, Tr. 178, lns. 20-22; App. 111; App. 155, Tr. 250 lns. 9-20).
Travel time between Grand Forks and Devils Lake is ninety to ninety-five minutes. (App. 144, Tr. 127, lns. 18-21).
There are problems with the parties communicating with each other. (App. 180, Tr. 371, lns. 10-11).
Russell does not provide Nikki with twenty-four hour notification of his Wednesday visits. (App. 178, Tr. 368, lns. 3-4).
Nikki first learned information about Russell going to nursing school at trial. (App. 158, Tr. 304, lns. 2-6).
It has been difficult for Nikki to find day care in Devils Lake for S.R.L. (App. 183, Tr. 380, lns. 12-13). Nikki will pay twenty-six dollars per day for day care whether S.R.L. is present at day care or not. (App. 184, Tr. 381, lns. 12, 14).
Nikki believes she should have primary residential responsibility. (App. 204). She has been the primary residential parent of S.R.L. since birth. (App. 191, Tr. 489, ln. 2).
STANDARD OF REVIEW
[¶ 22] A determination of alternating primary residential responsibility is a finding of fact which will be set aside on appeal if it is clearly erroneous. P.A. v. A.H.O., 2008 ND 194, ¶ 17, 757 N.W.2d 58. A finding of fact is clearly erroneous if it is induced by an erroneous view of the law, if no evidence exits to support it, or although there is some evidence to support it the reviewing Court is left with a definite and firm conviction a mistake has been made. Moilan v. Moilan, 1999 ND 103, ¶ 9, 598 N.W.2d 81.
I. WHETHER THE TRIAL COURT MADE A CLEAR ERROR BY MAKING NO FINDING THE HOME, SCHOOL, AND COMMUNITY RECORD OF THE TODDLER AND THE POTENTIAL EFFECT OF ANY CHANGE WAS NOT APPLICABLE WHEN THE TODDLER HAD SPENT THE MAJORITY OF HER LIFE IN DEVILS LAKE, NORTH DAKOTA AND THE PARENTS LIVE NINETY MILES APART.
[¶ 23] The May 7, 2012 order is not in the toddler's best interest; it is in the best interests of the parents. It must be reversed and remanded as a clear mistake. Any order granting shared primary residential responsibility of a toddler where the parties do not live in the same county, community, or school district is inherently clearly erroneous as not practical or in the toddler's best interest. That is the case here when the findings show no support for such a conclusion.
[¶ 24] Awarding joint primary residential responsibility is not per se erroneous. Kaloupek v. Burfening, 440 N.W.2d 496, 501 (N.D. 1989); P.A. v. A.H.O., 2008 ND 194, ¶ 17, 757 N.W.2d 58. However, joint residential responsibility orders are presumptively not in the interest of very young children like S.R.L. Peek v. Berning, 2001 ND 34, ¶ 21, 622 N.W.2d 186 (quoting In re Lukens, 1998 ND 224, ¶ 16, 587 N.W.2d 141). (emphasis added).
[¶ 25] The issue is whether the court made a clear mistake when finding section 14-0906.2(1)(h), N.D.C.C., was not applicable when it made its findings. This statute states:
[f]or the purpose of parental rights and responsibilities, the best interests and welfare of the child is determined by the court's consideration and evaluation of all factors affecting the best interests and welfare of the child. These factors include [inter alia] . . . [t]he 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). Section 14-09-06.2, N.D.C.C., is the relevant statute in determining the best interest and welfare of a child and section 14-09-06.2(1)(h), N.D.C.C., involves the potential effect of any changes to a child's home, school and community.
[¶ 26] In this particular instance, there was a clear mistake when the court ruled section 14-09-06.2(1)(h), N.D.C.C., was not applicable when the two parents live ninety miles apart in Grand Forks and Devils Lake and the infant had been happily living with her mother. (App. 144, Tr. 127, lns. 18-21; App. 187, Tr. 429, lns. 24-25). Additionally, the court was aware school would be an issue in the future but made no determination section 14-09-06.2(1)(h), N.D.C.C., was even applicable or how the problem would be solved. (App. 192, Tr. 492, lns. 21-23). This is a clear error.
[¶ 27] "In determining the best interests of the child, the 'court must consider all [relevant] factors specified in N.D.C.C. § 14-09-06.2(1).'" Hanisch v. Osvold, 2008 ND 214, ¶ 5, 758 N.W.2d 421 (citing Schmidt v. Schmidt, 2003 ND 55, ¶ 6, 660 N.W.2d 196). The distance between the parties should have been a major factor of consideration for the court. If joint primary residential responsibility is a potential outcome, then the geographical locations of each party should be considered a highly relevant factor under section 14-09-06.2(1)(h), N.D.C.C.
[¶ 28] Other courts in the country have embraced this reasoning. See Vitauts M. Gulbis, Annotation, Propriety of Awarding Joint Custody of Children, 17 A.L.R.4th 1013 (1982). In Beck v. Beck, 86 N.J. 480, 500, 432 A.2d 63, 72 (1981) the New Jersey Supreme Court reasoned,
[t]he geographical proximity of the two homes is an important factor to the extent that it impinges on school arrangements, the children's access to relatives and friends . . . and the ease of travel between the two homes.
Likewise in Louisiana, the Third Circuit Court of Appeals denied a father's motion to amend a judgment regarding equal parenting time. "When, as in this case, one parent lives in LaPlace, Louisana and the other parent lives in Lake Charles, some three and a half to four hours apart, it is clear that sharing physical custody of the child would equally be expensive and very difficult." Muller v. Muller, 643 So.2d 478, 483, (La. App. 3 Cir. 1994).
[¶ 29] This Court has upheld some joint primary residential responsibility orders. But, unlike the present case, the common denominator was the parents lived in the same community. Kaloupek v. Burfening, 440 N.W.2d 496, 498 (N.D.1989) (both parents lived in Grand Forks), Lapp v. Lapp, 293 N.W.2d 121, 126-127 (N.D. 1980) (both parents lived in Bismarck), P.A. 2008 ND at ¶¶ 5, 6 (both parents lived in Minot). The parties in the present case do not live in the same community, they do not even live in the same county.
[¶ 30] As this Court reasoned in Peek, stability for the child is desired. Peek, 2001 ND at ¶ 19. This Court has expressed an aversion to changing the residence of a child when that child has been living happily in one place. Id. (emphasis added). The Court also disfavors bandying a child back and forth. Id. The record shows S.R.L. is a well-adjusted toddler who has spent her entire life under the care of her mother. (App. 131, Tr. 69, lns. 1-3; App. 192, Tr. 492, lns. 24-25). The record indicates the toddler will be four years of age in less than two years, when she is eligible for school. (App. 186, Tr. 415 ln. 10). To uproot the toddler for such a short period of time is not in the child's best interest. It is only in the parents' interests.
[¶ 31] One must not overlook the fact that the toddler is not yet in school or involved in community activities available to her. Someday this toddler will grow old enough to enroll in school or extracurricular activities and she has only known Devils Lake as her home. Regarding school, the time period this toddler is eligible for preschool is less than two years. This is not a "potential" effect. It is an "actual" problem that is going to affect the toddler. Potential is defined as "existing in possibility: capable of development into actuality." Webster's Ninth New Collegiate Dictionary 921 (9th ed.1987).
[¶ 32] There are also logistical difficulties this order places upon Nikki who has had difficulty finding day care for S.R.L. (App. 183, Tr. 380, lns. 12-16). S.R.L. did well at her present day care and was adjusted to the providers. (App. 177, Tr. 364, lns. 10-13). S.R.L. could even identify the kids in her day care out in the community. Id. S.R.L. is now forced to adjust to two day care providers and two sets of friends. In addition, to secure a spot, Nikki must pay twenty-six dollars per day regardless of whether S.R.L. is actually present at the Devils Lake Day Care. (App. 184, Tr. 381, lns. 11-14; App. 195, Tr. 495, lns. 7-12).
[¶ 33] Logistical difficulties also extend to travel. Under the trial court's order, the parties will be forced to trek back-and-forth between Grand Forks and Devils Lake. The factor of distance was known and discussed prior to trial before the district court, in which consideration was even given to winter weather driving conditions. (App. 45). Efficiency should also have been considered, with the parties' ninety mile separation leading to a three hour round trip travel time occurring every week of the year, resulting in 156 hours per year spent on travel - this is 6.5 days, or nearly one week out of each year, that the toddler will have to spend traveling in a car. When combined with the present cost of gasoline being nearly four dollars per gallon, the correlation of distance to efficiency should have been considered.
[¶ 34] The court based its findings from the custody investigator. The custody investigator did not fully understand what a problem the split arrangement in two separate communities would impose upon this toddler. (App. 133, Tr. 75, ln. 8). The custody investigator did not consider the problem of S.R.L. missing dance or swimming lessons. (App. 132, Tr. 74, lns. 22-25; App. 133, Tr. 75, lns. 1-8). A toddler needs stability. This order establishes nothing but instability in this child's life.
[¶ 35] The toddler had been happily living in the Devils Lake, North Dakota community for nearly her entire life. (App. 131, Tr. 69, lns. 1-3; App. 192, Tr. 492, lns. 24-25). Now, because of the order, she has no continuity in her weekly life. She is moved back-and-forth and caught between two people who don't like each other.
[¶ 36] As the order stands, the toddler will alternate daycare, preschool and regular school between Devils Lake and Grand Forks. This is an unhealthy situation and cannot be held valid. It is logical to conclude the toddler will not have the opportunities to attend summer events because of the split arrangement. Those issues were not considered. (App. 132, Tr. 74, lns. 22-25; App. 133, Tr. 75, lns. 1-8). Shared primary residential responsibility is not practical or good for a toddler when the residences are ninety miles away.
[¶ 37] Section 14-09-06.2(1)(h), N.D.C.C., should be interpreted to exclude a joint primary residential responsibility order when the child cannot attend the same school, daycare, or participate in the same community activities. The trials court's May 7, 2012, order should be reversed and remanded to make a determination that section 14-09-06.2(1)(h), N.D.C.C., is a relevant factor that would make a joint award of primary residential responsibility impossible.
II. WHETHER THE TRIAL COURT MADE A CLEAR ERROR IN NOT MAKING A FINDING THE PARTIES WOULD BE ABLE TO COMMUNICATE AND COOPERATE SUFFICIENTLY TO SET ASIDE THEIR DIFFERENCES.
[¶ 38] The trial court also made a clear error when it made no finding the parties would communicate and cooperate sufficiently to set aside their differences when it ordered joint primary residential responsibility.
[¶ 39] This Court has made it clear for a joint primary residential responsibility arrangement to work, the parties need to communicate. Peek, 2001 ND at ¶ 22. Additionally, joint primary residential responsibility will only work if the parties can get along. P.A., 2008 ND at ¶ 19 (citing Morgan Little, Child Custody & Visitation Law and Practice § 13.01 (2008)).
[¶ 40] In Peek, this Court reversed the trial court order because the court did not make specific findings the parents could effectively communicate and cooperate. Id. at ¶ 27. It was also significant that the mother lived in New Salem and the father lived in Bismarck. Peek, 2001 ND at ¶ 2.
Peek asserts the parties disagree on virtually every aspect of parenting and are unable to communicate without conflict regarding day care, clothing, medical, discipline, and very likely choosing an elementary school since Peek lives in New Salem and Berning in Bismarck.
Id. at ¶ 18. (emphasis added).
[¶ 41] The facts in Peek are very similar to the present matter. There is no effective communication or cooperation between Russell and Nikki to make a joint residential schedule feasible. (App. 180, Tr. 371, lns. 10-11). These two individuals primarily communicate through text messages. (App. 152, Tr. 210, lns. 3-5; App. 178, Tr. 368 lns. 3-4). Russell demands Nikki communicate with him while she is at work, which she cannot do. (App. 179, Tr. 370, lns. 21-25; App. 180, Tr. 371, lns. 1-6). Russell nitpicks and is critical of Nikki's parenting. (App. 130, Tr. 65, lns. 19-23; App. 181, Tr. 373, lns. 17-25; App. 182, Tr. 374, ln. 8).
[¶ 42] The relationship between Russell and Nikki never germinated from a mutual foundation of love and admiration. They went on a few dates and hung out, but the relationship ended in December 2008. (App. 164, Tr. 347, lns. 17-18). It was based upon casual sex resulting in the birth of a child. (App. 126, Tr. 36, lns. 11-12; App. 138, Tr. 103, lns. 11-12). The child is the only thing they have in common. The resulting hostility is not surprising. In fact, the current order suggests there will be positioning and posturing in anticipation of the next court date, which is evidenced by Russell and Angie video and audio taping exchanges. (App. 129, Tr. 58, lns. 8-10; App. 149, Tr. 152, lns. 17-23). Such behavior is not good for a toddler nor does it suggest they will openly and effectively communicate.
[¶ 43] The May 7, 2012, order should be reversed and remanded because the court did not make a finding the parties are able to communicate and cooperate. The record suggests the parties do not have the ability or desire to cooperate and put aside their differences. The order below should be reversed.
III. WHETHER THE TRIAL COURT MADE A CLEAR ERROR IN NOT AWARDING NIKKI PRIMARY RESIDENTIAL RESPONSIBILITY WHEN THE TODDLER HAS ALWAYS LIVED UNDER HER CARE AND BOTH PARTIES WERE FOUND TO BE GOOD PARENTS.
[¶ 44] The trial court found that both parties love their child and are good parents. (App. 208, ¶ 7(a)). These facts are undisputed. The best interest factors were essentially equal. However, section 14-09-06.2(1)(d), N.D.C.C., favored Nikki:
The sufficiency and stability of each parent's home environment, the impact of extended family, the length of time the child has lived in each parents home, and the desirability of maintaining continuity in the child's home and community.
(App. 209, ¶ 7(d)).
[¶ 45] In Jelsing v. Peterson, 2007 ND 41, ¶ 12, 729 N.W.2d 157, the district court found most of the factors under section 14-09-06.2(1), N.D.C.C., favored neither party. The court decided the mother should have the primary residential responsibility because of the length of time the toddler had lived in her care. Id. Jelsing was a case involving a "'close call' with no 'clear-cut winner,'" but the toddler had always lived with mom and this tipped the matter in favor of her. Id.
[¶ 46] Like Jelsing, the court below should have given a slight preference to the stability of the toddler. In other words, the trial court should have awarded Nikki primary residential responsibility and granted Russell liberal and gracious parenting time in order to foster a father-daughter relationship.
[¶ 47] Section 14-09-06.6(1), N.D.C.C., is not a mathematical table such as one party having more plus' than minus' than the other. As this Court stated:
we have not interpreted "equal consideration" or "equal weight" to mean a mathematical formula by which the factors are added up and the person with the most factors in their favor is awarded custody.
P.A., 2008 N.D. at ¶ 15. Some factors are more critical in one situation than in another. Id. This Court applies a case-by-case analysis when considering the best interest factors of a minor child. Id. Here, the most dominating factor was the toddler was happy, well- adjusted, and lived the majority of her life in Devils Lake. (App. 131, Tr. 69, lns. 1-3). There was simply no reason to change things.
[¶ 48] This Court has indicated stability is desired when a child has been living in one home for a substantial period of time. Peek, 2001 ND at ¶ 19. This Court has especially shown disapproval of a young child subject to a rotating schedule. Id. at ¶ 21. Finally, this Court as stated it is presumed not to be in the interest of a very young child to be bandied back and forth. Id.
[¶ 49] Nikki respectfully submits the court below failed to properly consider the desirability of stability for this young child. Peek, 2001 ND at ¶¶ 19, 21. This desirability of maintaining continuity for S.R.L.'s best interest should have tipped the primary residential responsibility in Nikki's favor. Both parties here appear to be good and fit parents. (App. 124, Tr. 21, lns. 17-22). However, one of these two parents must be designated the primary residential parent for the sake of the child, not two parents who live ninety miles away.
[¶ 50] The trial court order should be reversed and remanded granting Nikki the primary residential responsibility of S.R.L.
IV. WHETHER THE ORDER CREATES A PROBLEM FOR THE PARTIES TO MODIFY PRIMARY RESIDENTIAL RESPONSIBILITY AS SUCH MODIFICATION IS GOVERNED BY SECTION 14-09-06.6, N.D.C.C.
[¶ 51] The order creates an unforeseen catch-22 with the law and for the toddler. The law places limitations on postjudgment modifications of primary residential responsibility, as indicated in section 14-09-06.6, N.D.C.C. The unintended effect of this order extends potential problems to the toddler by preventing the parties the opportunity to seek a modification. If, as the custody investigator suggests, the parties will get along in time, then there will no basis under the law for either party to file a motion to change the primary residential responsibility when S.R.L. reaches school age in a year and a half. (App. 128, Tr. 47 lns. 6-17; App. 186, Tr. 415, ln. 10).
[¶ 52] The burden of getting back to court to change primary residential responsibility is high and the legislature has purposely made the standard high. Heinen v. Heinen, 452 N.W.2d 331, 334 (N.D. 1990) (citing Newsome v. Newsome, 42 N.C.App. 416, 256 S.E.2nd 849 (1979) for the proposition that "reason behind change of circumstances requirement before modification is to prevent re-litigation of conduct and circumstances that antedate prior custody order"). A moving party must first establish a prima facie case justifying a modification then an evidentiary hearing will be held and testimony will be heard. N.D.C.C. § 14-09-06.6(4).
[¶ 53] However, if both parties get along and unless there are emotional, physical or environmental problems, then the parties cannot be granted a prima facie case within two years under section 14-09-06.6(1) and (3), N.D.C.C. The statute provides:
1. Unless agreed to in writing by the parties, or if included in the parenting plan, no motion for an order to modify primary residential responsibility may be made earlier than two years after the date of entry of order establishing primary residential responsibility, except in accordance with subsection 3
* * *
3. The time limitation in subsections 1 and 2 does not apply if the court finds:
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(1) and (3).
[¶ 54] Under our law, where there are no problems one cannot modify an existing order, which is why someone modifies an order. However, there is a legitimate problem because the toddler will begin school in the not-too-distant future with dad living in Grand Forks and mom living in Devils Lake. (App. 135, Tr. 99, lns. 4-5, 24; App. 160, Tr. 334, lns. 2-3). If the order is upheld, it creates an unintended problem by prohibiting the parties from modifying the order.
[¶ 55] The standard to change primary residential responsibility after two years of the entry of an order further complicates the issue. Section 14-09-06.6(6), N.D.C.C., lays out
the process to modify a primary residential order after two years have passed. Section 14-09-06.6(6), N.D.C.C., states:
The court may modify the primary residential responsibility after the two-year period following the date of entry of an order establishing 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 in circumstances 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).
[¶ 56] According to this Court, "material" is construed under section 14-09-06.6(6)(a), N.D.C.C., as meaning "'important new facts that were unknown at the time of the prior custodial decree.'" Dunn v. Dunn, 2009 ND 193, ¶ 9, 775 N.W.2d 486 (citing Kelly v. Kelly, 2002 ND 37, ¶ 17, 640 N.W.2d 38). At the same time, this Court:
rejected an invitation to interpret a material change in circumstances to be met only by evidence of a significant or important change that has a negative impact on the well-being of the child.
Dunn, 2009 ND 193, ¶ 9, 775 N.W.2d 486 (citing Kelly, 2002 ND 37, ¶ 47, 640 N.W.2d 38). Finally, this Court has reasoned that "modifications of custody are governed by N.D.C.C. § 14-09-06.6." Dufner v. Trottier, 2010 ND 31, ¶ 13, 778 N.W.2d 586.
[¶ 57] Even if the toddler does not go to preschool in a year and a half but instead starts kindergarten in two and a half years, neither party can successfully make a motion to change primary residential responsibility under this order because the law forbids it. There is nothing new here that the court did not already know. The parties do not get along and they live in separate towns. The trial court will be bound by section 14-09-06.6, N.D.C.C., when considering a modification motion after two years. Id.
[¶ 58] Distance cannot be a factor in a future modification proceeding because it was already known at trial. (App. 193-196, Tr. 493-496). The issue was discussed at length.
Nikki's counsel at the time, Darcie Einarson, saw the potential problems at hand and requested a waiver of section 14-09-06.6, N.D.C.C. (App. 193, Tr. 493, lns. 6-25; App. 194-195, Tr. 494-495). Russell's attorney objected, indicating "[t]he law is the law." (App. 196, Tr. 496, ln. 5). Russell's attorney is correct.
[¶ 59] The unintended consequence of the trial court's order is both parties being barred from filing a motion to change primary residential responsibility based upon a material change in circumstances pursuant to section 14-09-06.6, N.D.C.C., which governs modifications. Dufner, 2010 ND 193, ¶ 13, 778 N.W.2d 586. Both parties are then trapped by a law that presupposes a correct initial determination of primary residential responsibility. The initial determination by the trial court was not, however, correct. The trial court made a Solomonic decision by splitting the toddler and granting shared primary residential responsibility to the toddler's parents. Under the trial court's order, the best interests of the toddler are subordinate to the convenience of the toddler's parents. The best interests of the toddler are not served by the trial court's order.
[¶ 60] For the foregoing reasons, LaFromboise respectfully requests this Court REVERSE AND REMAND the trial court's May 7, 2012 Order as clearly erroneous.
|DATED October 25, 2012|
|Michael P. Hurly (N.D. ID#06355)|
|TRAYNOR LAW FIRM, P.C.|
|509 5th Street NE, Ste. 1 - P.O. Box 838|
|Devils Lake, ND 58301-0838|
|Telephone: (701) 662-4077|
|Attorneys for Nikki Lynne LaFromboise|
1. It is unclear from the record if they ever broke the relationship before she began dating her co-worker in July 2009. It is assumed however, that Nikki did not have a sexual relationship with two men during the summer months of 2009.