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.|
REPLY TO APPELLEE'S BRIEF
Appeal from Order for Judgment
Dated May 8, 2012
In the District Court of Ramsey County, North Dakota
The Honorable Judge Donovan Foughty Presiding
Supreme Court No. 20120282
Ramsey Co. No. 2011-DM-00098
|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||iii|
|I.||THE HOME, SCHOOL, AND COMMUNITY RECORD IS A RELEVEANT BEST INTEREST FACTOR TO BE CONSIDERED IN THIS CASE AS THE PARTIES LIVE 90 MILES APART FROM EACH OTHER AND THE TRIAL COURT FAILED TO CONSIDER N.D.C.C. § 14-09-06.2(1)(h).|
|II.||Appellee's brief fails to consider that all joint primary residential responsibility orders affirmed have been when both parents lived in the same community.|
|III.||Russell's argument the trial court's order does not create problems with N.D.C.C. § 14-09-06.6 is misplaced.|
TABLE OF AUTHORITIES
|Beck v. Beck,|
|86 N.J. 480, 432 A.2d 63 (1981)||13|
|Deyle v Deyle,|
|2012 ND 248, 2012 WL 5974874||7, 8, 9, 10, 18|
|Fonder v. Fonder,||< td>|
|2012 ND 228, WL 5205715||11|
|Hanisch v. Osvold,||< td>|
|2008 ND 217, 758 N.W.2d 421||1|
|Haroldson v. Haroldson,|
|2012 ND 44, 813 N.W.2d 539||22|
|Holtz v. Holtz,|
|1999 ND 105, 595 N.W.2d 1 (N.D. 1990)||24, 25,|
|Lumbra v. Lumbra,|
|394 A.2d 1139 (Vt. 1978)||13|
|Martire v. Martire,||< td>|
|2012 ND 197, 822 N.W.2d 450||11|
|Mock v. Mock,|
|2004 ND 14, 673 N.W.2d 635||25|
|Muller v. Muller,|
|643 So.2d 478 (La. App. 3 Cir. 1994)||13|
|P.A. v. A.H.O.,||< td>|
|2008 ND 194, 757 N.W.2d 58||11|
|Peek v. Berning,|
|2001 ND 34, 622 N.W.2d 186||3, 16|
|Schmidt v. Schmidt,|
|2003 ND 55, 660 N.W.2d 196||1|
|Schumacker v. Schumacker,||td>|
|2011 ND 75, 796 N.W.2d 636||25|
|N.D.C.C. § 14-09-06.2(1)||2|
|N.D.C.C. § 14-09-06.2(1)(h)||1, 2,||N.D.C.C. § 14-09-06.6(1)||20||< tr valign="top">||N.D.C.C. § 14-09-06.6(3)||20||< tr valign="top">||N.D.C.C. § 14-09-06.6(6)(c)||22||< tr valign="top">||SECONDARY AUTHORITIES|
|Black's law dictionary 596 (2nd pkt.ed. 2001).||7|
I. The home, school, and community record is a relevant best interest factor to be considered in this case as the parties live 90 miles apart from each other and the trial court failed to consider N.D.C.C. § 14-09-06.2(1)(h).
[¶ 1] When a court determines the best interests of a child under N.D.C.C. § 14-09-06.2(1), a court must consider all relevant factors. Hanish v. Osvold, 2008 ND 214, ¶ 5, 758 N.W.2d 421 (citing Schmidt v. Schmidt, 2003 ND 55, ¶ 6, 660 N.W.2d 196). (emphasis added). Factor (h) under N.D.C.C. § 14-09-06.2(1) is "[t]he home, school, and community records of the child and the potential effect of any change."
[¶ 2] Russell argues factor (h) of N.D.C.C. § 14-09-06.2(1) is irrelevant and the trial court found it irrelevant as well. (Appellee Br. ¶¶ 27, 28). Russell also argues there is nothing in the record indicating S.R.L. is strongly attached to the Devils Lake Community. Id. at ¶¶ 28-29.
[¶ 3] Factor (h) is very relevant and, if it is not, then the best interest factors of a child have no meaning. This Court has stated that joint residential responsibility orders are not in the best interest of very young children like S.R.L. and has shown disapproval of a young child subjected to a rotating schedule. Peek v. Berning, 2001 ND 34, ¶ 21, 622 N.W.2d 186. At the time of trial, S.R.L. had always lived under the care of Nikki and was less than two years old. (App. 9, 12; App. 29, Tr. 6 lines 15-16). The consideration of taking a twenty-month-old, well-adjusted child, from her community and moving her back-and-forth 90 miles between Devils Lake and Grand Forks should not have been ignored or considered irrelevant by the trial court.
[¶ 4] Russell argues the court essentially adopted the custody investigator's recommendations. (Appellee Br. ¶ 15). However, the custody investigator did not consider the fact S.R.L. would miss half of dance lessons or half of swimming lessons because of the split residential arrangement. (App. 132, Tr. 74 lines 23-25; App. 133, Tr. 75 lines 1-9). The court's silence on factor (h) does not show it was irrelevant. The court's order giving the child two homes 90 miles apart makes factor (h) highly relevant. The issue was overlooked by the court who should have considered these potential and very real problems.
[¶ 5] Russell argues there is overwhelming evidence that S.R.L. is thriving in both communities. (Appellee Br. ¶ 29). However, Russell either fails to point out or understand that although S.R.L. was well adjusted to Russell's home and Nikki's home, this determination was made when Russell was exercising parenting time every other weekend during the interim order when Nikki had S.R.L. a majority of the time. (App. 119).
[¶ 6] Contrary to Russell's arguments, there is evidence that S.R.L. was tied to her community. Since March 2010 S.R.L. lived in Devils Lake - nearly her whole life - under the care of her mother. (App. 9, 11; App. 160 Tr. Lines 11-12). Second, when the custody investigator concluded she was well-adjusted, S.R.L. had been well adjusted to living in Devils Lake. (App. 131, Tr. 69, lines 1-3).
[¶ 7] Russell relies upon Deyle v. Deyle, 2012 ND 248, ¶¶ 5, 16, 2012 WL 5974874, to support his argument. His reliance is misplaced. First, it appears the trial court in Deyle found specific factors were indeed irrelevant. Deyle, 2012 ND 248, at ¶ 5. The trial court here did not find factor (h) irrelevant, it stated it was not applicable. (App. 225). There is a difference between something that does not apply and something that is not relevant. Something that is relevant is a pertinent material fact that has bearing upon an issue. Black's law dictionary 596 (2nd pkt.ed. 2001). Here, the child is younger than twenty months old, well-adjusted, and has mostly lived in the Devils Lake community. To move a young toddler out of her home half of the time is highly relevant.
[¶ 8] In fact, Deyle supports Nikki's argument the court should look to the future as well as the past when awarding primary residential responsibility. "Factor (h) expressly requires that a court consider the potential effects of change. The court must look forward under this factor to determine whether foreseeable changes could impact a child's life in the home, school, and community." Deyle, 2012 ND at ¶ 12 (emphasis added).
[¶ 9] In Deyle, the trial court looked to the possibilities of future relocations for the children. Id. It appears that Christina Deyle would need to make multiple moves. Id. On the other side of the coin, the trial court found that Eric Deyle actively involved the children in the community. Id. Eric Deyle intended to remain in the Milnor area. Id. at ¶ 15.
[¶ 10] Like the trial court in Deyle, the trial court here should have looked into the future. The court should have considered the potential problems an award of spilt residential responsibility would have on a young, well-adjusted child who lived in Devils Lake nearly her whole life and the fact that her mother had no intention of moving. (App. 160, Tr. 334, lines 19-20). However, because the court essentially adopted the custody investigator's recommendations, and the custody investigator did not consider the fact S.R.L. would miss half of dance lessons or half of swimming lessons because of the split residential arrangement, there are unavoidable problems looming on the horizon for S.R.L. (App. 132, Tr. 74 lines 23-25; App. 133, Tr. 75 lines 1-9). More importantly, she is going to soon be eligible for preschool. (App. 186, Tr. 415 line 10). The court order should have considered these problems, and because it did not, it should be reversed and remanded granting Nikki primary residential responsibility.
II. Appellee's brief fails to consider that all joint primary residential responsibility orders affirmed have been when both parents lived in the same community.
[¶ 11] Russell cites to three cases where an award of joint primary residential responsibility has been affirmed by this Court: P.A. v. A.H.O., 2008 ND 194, 757 N.W.2d 58; Martire v. Martire, 2012 ND 197, 822 N.W.2d 450; and Fonder v. Fonder, 2012 ND 228, 2012 WL 5205715. (Appellee's Br. ¶¶ 24, 31, 33-35). In all three of these cases, the parties lived in the same area. In P.A., both parties lived in Minot, North Dakota. P.A. 2008 ND at ¶¶ 4, 6. In Martire, both parties lived in Bismarck, North Dakota. Martire, 2012 ND at ¶¶ 2, 10. In Fonder, both parties lived in Minot, North Dakota. Fonder, 2012 ND at ¶ 2.
[¶ 12] All cases referenced by Russell and Nikki involving North Dakota case law show this court has never affirmed or even considered an award of joint primary residential responsibility when the parties do not live in the same community.
[¶ 13] Russell's argument is silent regarding the 90 mile distance between the two parents, which is the fundamental issue of this appeal. However, other courts in the country have dealt with the issue of distance and have considered it a problem in joint awards. In Muller v. Muller, 643 So.2d 478, 483-484 (La. App. 3 Cir. 1994), the Louisiana Court denied a father's petition for joint residential responsibility and indicated the three to four hour distance would not be practical. In Vermont and New Jersey, distance between the parties is a factor to consider in awarding joint residential responsibility. Lumbra v. Lumbra, 394 A.2d1139, 1141 (Vt. 1978), Beck v. Beck, 432 A.2d 63, 72 (N.J. 1981).
[¶ 14] Nikki does not believe that an award of joint primary residential responsibility is per se erroneous. (Appellant Br. at ¶ 24). Nikki argues that joint responsibility orders are presumptively not favored with young children and cannot be allowed when the distance between the two parties is 90 miles. Id.
[¶ 15] Nikki submits an award of joint primary residential responsibility is clearly erroneous when two parties do not live in the same community, county, or school district. Id. This is especially true when a toddler is involved, a child who is not yet two years old such as S.R.L. (App. 29, Tr. 6 lines 15-16).
[¶ 16] Distance between parties should be a significant factor to be considered especially in light of this Court's view that joint awards are not presumed in the best interest of young children as well as this Court's aversion to changing the residence of a child when that child had been happily living in one place. Peek v. Berning, 2001 ND 34, ¶¶ 19, 21, 622 N.W.2d 186.
[¶ 17] If a child cannot attend the same daycare, attend the same extracurricular activities, and attend the same school when living jointly with both parents, then a court should not award joint residential responsibility. This distance alone is not in the best interests of the child.
III. Russell's argument the trial court's order does not create problems with N.D.C.C. § 14-09-06.6 is misplaced.
[¶ 18] Russell argues that Nikki's position is based upon assumptions not yet known. (Appellee's Br. ¶ 47). Russell argues that Nikki assumes the parties will still live in the same town, have the same significant others, will have the same family dynamics. Id. He further argues the custody investigator indicated the future is not known. Id. The problem with this argument is that it is not supported by facts as well as the recent opinion of Deyle v. Dyle, 2012 ND 248. Furthermore, in just a few months this child will be eligible for school. (App. 186, Tr. 415 line 10).
[¶ 19] According to Russell's own brief, he has no intention of moving and was currently enrolled at UND. Id. at ¶ 14. Nikki had no intention of moving anytime soon. (App. 160, Tr. 334, lines 19-20). Nikki plans on living in Devils Lake as long as possible. Id. The custody investigator believed the parties would get along for S.R.L.'s sake. (App. 128, Tr. 47, lines 12-25). It is undisputed that these are two very good parents. (App. Br.¶ 17).
[¶ 20] In a year and a half, there must be some willful denial of parenting time, the child's present environment must be endangered physically or emotionally, or the child must be living with the other parent longer than six months. N.D.C.C. § 14-09-06.6(1) and (3). Otherwise, this child will miss her first opportunity to attend school with her peers. Under these facts it is logical to assume that neither of the above events under N.D.C.C. § 14-09-06.6(1) and (3) are likely to happen when two loving parents are involved.
[¶ 21] If events go past two years and the parents decide to deny S.R.L. the ability to go to pre-school, then the standard become a material change in circumstances, which are important new facts not known at the time of trial as Russell correctly points out. (App. Br. at ¶ 43). Nikki's attorney at the time recognized the issue and tried to address it. Russell objected and the court did not address it. (App. 193, Tr. 493, lns 6-25; App. 196, Tr. 496, ln. 5).
[¶ 22] The two cases Russell cites to support his argument are not on point to the specific problem this Court is reviewing. (Appellee Br. ¶¶ 45, 46). First, in Haroldson v. Haroldson, 2012 ND 44, ¶ 5, 813 N.W.2d 539, the parties stipulated to a joint residential agreement and the trial court voided that agreement because it believed the parties were trying to avoid child support obligations. Further, two years after the divorce the defendant in that case moved to modify the divorce decree alleging she had the children the majority of the time under N.D.C.C. § 14-09-06.6(3)(c). Id. at ¶ 3. She essentially alleged that since the divorce the residential arrangement was never followed. Id. The court granted her motion. Id. Then, the plaintiff cross motioned, and the Court found there was a material change in circumstances because the children were in school. Id. at ¶¶ 3-4. (emphasis added). The defendant was ultimately awarded the sole residential responsibility of the parties children. Id. at ¶
[¶ 23] Here, there is no stipulation and the problem with school is known. The parties are not trying to avoid child support obligation.
[¶ 24] Second, Holtz v. Holtz, 1999 ND 105, 595 N.W.2d 1, is distinguishable from the facts in this case. Holtz involved a default, no contest, divorce. Id. at ¶ 2. There were no facts before the court at a trial. In 1994 April Holtz served James Holtz with divorce documents and James did not contest the divorce. Id. In April 1997, after years of frustration with not being able to see his child, James filed a motion to establish a parenting schedule or to change the primary residential parent. Id. at ¶¶ 4-5. The trial court found April to have a developmental disability with a low IQ. Id. at ¶ 12. The trial court ultimately awarded James the child due to April's developmental disability. Id.at ¶ 7. There was never an initial trial so the court did not know that April had a low IQ and the court did not know that she may have problems raising a child. Those facts were never before the court because it was a default no contest divorce. Id. at ¶ 2.
[¶25] The reasoning in Holtz is in line with subsequent decisions from this Court when a trial court never knew about existing facts. For instance, in a stipulated divorce, a subsequent motion to modify a residential responsibility order can be based upon pre-divorce conduct because the court was unaware of material facts due to the stipulation. Schumacker v. Schumacker, 2011 ND 75, ¶ 11, 796 N.W.2d 636 (quoting Mock v. Mock, 2004 ND 14, ¶ 13, 673 N.W.2d 635). Holtz is not instructive.
[¶ 26] S.R.L. has a real world problem this Court must remedy. She is currently bandied back- and-forth between two persons across a distance of 90 miles. She will need to attend school, yet cannot attend two different schools in two separate communities. It would be absurd to suggest that this, or any, child could be split in such a manner. There is nothing on the horizon that would justify an evidentiary hearing in a year and a half, when S.R.L. is eligible for school. While Nikki understands the Court cannot speculate as to the future, she believes it can remedy a clear error in the law. An error in the law has been created here, and the order needs to be reversed and remanded.
[¶ 27] For the foregoing reasons, and the reasons stated in Nikki's opening brief, Defendant-Appellant Nikki LaFromboise respectfully requests this Court REVERSE AND REMAND the trial court's May 7, 2012 Order as clearly erroneous.
DATED December 27, 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|