Niemann v. Niemann

20060332 Heidi Lee Niemann, n/k/a
Heidi Lee Wolf, Plaintiff and Appellee
v.
Lyle Thomas Niemann, Defendant and Appellant

Appeal from: District Court, Northeast Judicial District, Walsh County
Judge Lee A. Christofferson
Nature of Action: Child Cust & Support (Div.\other)
Counsel:
Appellant: Einarson Law Office, P.C.
Appellee: Carter McDonagh, P.L.L.P.
Term: 10/2007   Argument: 10/30/2007  9:05am
ND cite: 2008 ND 54
NW cite: 746 N.W.2d 3

Listen to recording of oral argument in MP3 format

Issues: 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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Docket entries:
111/20/2006 NOTICE OF APPEAL: 11/17/2006
211/20/2006 ORDER FOR TRANSCRIPT: 11/17/2006
312/14/2006 RECORD ON APPEAL, 4 Volumes w/Separates (Entry Nos. 51-55)
412/29/2006 MOT. EXT/TIME TRANSCRIPT
512/29/2006 ACTION BY TRIAL COURT (MTR). Granted: 02/15/2007
602/15/2007 MOT. EXT/TIME TRANSCRIPT
702/15/2007 ACTION BY CHIEF JUSTICE. Granted: 02/22/2007
802/22/2007 DISK - TRA of July 31, 2006 (e-mailed)
902/27/2007 TRANSCRIPT DATED July 31, 2006 (This is not the correct version of the transcript. The correct
1002/27/2007 version is filed in the Record (Volume 5), docket #284
1103/30/2007 MOT. EXT/TIME TRANSCRIPT (entitled Motion to Stay Deadline for Filing Appellate Brief & Ext/Time/
1203/30/2007 Clarify/Record)
1303/30/2007 ACTION BY CHIEF JUSTICE (MTR). Granted: 05/01/2007
1403/30/2007 MOT. EXT/TIME APPELLANT BRIEF (entitled Motion to Stay Deadline for Filing Appellate Briefs &
1503/30/2007 Ext/Time/Clarify/Record) & Affidavit in Support
1603/30/2007 ACTION BY CHIEF JUSTICE (ATB extended to 40 days after TRA is filed). Granted: 07/25/2007
1703/30/2007 Record on Appeal was returned to clerk of district court
1804/03/2007 RECEIPT SIGNED BY DISTRICT COURT CLERK'S OFFICE
1906/15/2007 RE-FILED RECORD ON APPEAL, 5 VOLUMES W/SEPARATES (ENTRY NOS. 51-55)
2007/25/2007 APPELLANT BRIEF
2107/25/2007 APPELLANT APPENDIX
2207/25/2007 DISK - ATB
2308/27/2007 MOT. EXT/TIME APPELLEE BRIEF
2408/27/2007 E-FILED MOTION (MAE)
2508/27/2007 ACTION BY CLERK (MAE). Granted: 08/30/2007
2608/30/2007 APPELLEE BRIEF
2708/30/2007 APPELLEE APPENDIX
2808/31/2007 Affidavit of Service by Mail dated 8-30-07 of AEB & AEA on Ms. Einarson
2909/05/2007 Copies of corrected TOA and pages for Appellee's Brief
3009/17/2007 REPLY BRIEF
3109/17/2007 DISK - RYB (emailed)
3209/18/2007 Affidavit of Service by Mail (RYB)
3310/30/2007 APPEARANCES: Darcie M. Einarson; Alan M. McDonagh
3410/30/2007 ARGUED: Einarson; McDonagh
3503/20/2008 DISPOSITION: REVERSED AND REMANDED
3603/20/2008 SPLIT OPINION: VandeWalle, Gerald W.
3703/20/2008 dissenting in part & concurring in part: Maring, Mary Muehlen: CON/DIS
3803/20/2008 dissenting in part & concurring in part.: Crothers, Daniel John: JN/CON
3903/20/2008 Costs on appeal taxed in favor of appellant.
4003/24/2008 Judgment e-mailed to Parties
4104/14/2008 MANDATE
4204/18/2008 RECEIPT SIGNED BY DISTRICT COURT CLERK'S OFFICE

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