Niemann v. Niemann
Heidi Lee Niemann, n/k/a
Heidi Lee Wolf, Plaintiff and Appellee
Lyle Thomas Niemann, Defendant and Appellant
Northeast Judicial District,
Judge Lee A. Christofferson
|Nature of Action:||Child Cust & Support (Div.\other)|
|Term:||10/2007  Argument: 10/30/2007 9:05am|
|ND cite:||2008 ND 54|
746 N.W.2d 3
Listen to recording of oral argument in MP3 format
Appellant's Statement of the Issues:|
1. Whether the district court's failure to find a significant change of circumstances was clearly erroneous.
2. Whether the lower court abused it's discretion in limiting the parties' cases to two hours
Reply Brief 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.
Appellee's Statement of the Issues:
I.The trial court was not clearly erroneous in finding Lyle failed to show a material change of circumstances for a modification of the existing custodial arrangement.
A.The material change of circumstances should come from facts that were not known at the time Lyle brought his motion for change of custody in 2001.
B.L.T.'s present environment with Heidi is not a harm to his physical or emotional health and the present environment is not an impairment to his emotional development.
C.Heidi has not relinquished her role as L.T.'s primary caregiver.
D.Neither party's marriage is a significant change in circumstances.
E.Heidi has had no significant decline in her health since Lyle brought his 2001 motion.
F.Victoria's preference is not a significant change in circumstances as it relates to L.T.'s custody.
G.There has been no change in L.T.'s educational circumstances since 2001 that create a material change in circumstances.
H.Victoria and L.T. each living with a separate parent is not a material change in circumstances relating to L.T.'s custody.
I.The trial court properly examined the topics Lyle alleged to constitute a material change in circumstances.
J.The evidence in the record is sufficient to deny Lyle's motion even under an analysis of the best interest of the child factors.
XI.The trial court did not abuse its discretion when it limited the parties to two hours to present evidene.
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|1||11/20/2006||NOTICE OF APPEAL: 11/17/2006|
|2||11/20/2006||ORDER FOR TRANSCRIPT: 11/17/2006|
|3||12/14/2006||RECORD ON APPEAL, 4 Volumes w/Separates (Entry Nos. 51-55)|
|4||12/29/2006||MOT. EXT/TIME TRANSCRIPT|
|5||12/29/2006||ACTION BY TRIAL COURT (MTR). Granted: 02/15/2007|
|6||02/15/2007||MOT. EXT/TIME TRANSCRIPT|
|7||02/15/2007||ACTION BY CHIEF JUSTICE. Granted: 02/22/2007|
|8||02/22/2007||DISK - TRA of July 31, 2006 (e-mailed)|
|9||02/27/2007||TRANSCRIPT DATED July 31, 2006 (This is not the correct version of the transcript. The correct|
|10||02/27/2007||version is filed in the Record (Volume 5), docket #284|
|11||03/30/2007||MOT. EXT/TIME TRANSCRIPT (entitled Motion to Stay Deadline for Filing Appellate Brief & Ext/Time/|
|13||03/30/2007||ACTION BY CHIEF JUSTICE (MTR). Granted: 05/01/2007|
|14||03/30/2007||MOT. EXT/TIME APPELLANT BRIEF (entitled Motion to Stay Deadline for Filing Appellate Briefs &|
|15||03/30/2007||Ext/Time/Clarify/Record) & Affidavit in Support|
|16||03/30/2007||ACTION BY CHIEF JUSTICE (ATB extended to 40 days after TRA is filed). Granted: 07/25/2007|
|17||03/30/2007||Record on Appeal was returned to clerk of district court|
|18||04/03/2007||RECEIPT SIGNED BY DISTRICT COURT CLERK'S OFFICE|
|19||06/15/2007||RE-FILED RECORD ON APPEAL, 5 VOLUMES W/SEPARATES (ENTRY NOS. 51-55)|
|22||07/25/2007||DISK - ATB|
|23||08/27/2007||MOT. EXT/TIME APPELLEE BRIEF|
|24||08/27/2007||E-FILED MOTION (MAE)|
|25||08/27/2007||ACTION BY CLERK (MAE). Granted: 08/30/2007|
|28||08/31/2007||Affidavit of Service by Mail dated 8-30-07 of AEB & AEA on Ms. Einarson|
|29||09/05/2007||Copies of corrected TOA and pages for Appellee's Brief|
|31||09/17/2007||DISK - RYB (emailed)|
|32||09/18/2007||Affidavit of Service by Mail (RYB)|
|33||10/30/2007||APPEARANCES: Darcie M. Einarson; Alan M. McDonagh|
|34||10/30/2007||ARGUED: Einarson; McDonagh|
|35||03/20/2008||DISPOSITION: REVERSED AND REMANDED|
|36||03/20/2008||SPLIT OPINION: VandeWalle, Gerald W.|
|37||03/20/2008||dissenting in part & concurring in part: Maring, Mary Muehlen: CON/DIS|
|38||03/20/2008||dissenting in part & concurring in part.: Crothers, Daniel John: JN/CON|
|39||03/20/2008||Costs on appeal taxed in favor of appellant.|
|40||03/24/2008||Judgment e-mailed to Parties|
|42||04/18/2008||RECEIPT SIGNED BY DISTRICT COURT CLERK'S OFFICE|