Laib v. Laib

Decision Date26 June 2008
Docket NumberNo. 20070079.,20070079.
Citation751 N.W.2d 228,2008 ND 129
PartiesVirgil LAIB, Plaintiff, Appellee and Cross-Appellant v. Lisa LAIB, Defendant, Appellant and Cross-Appellee.
CourtNorth Dakota Supreme Court

Lori Kim Weisz, Harvey, N.D., for plaintiff, appellee and cross-appellant.

Paul M. Probst, Probst Law Firm, Minot, N.D., for defendant, appellant, and cross-appellee.

KAPSNER, Justice.

[¶ 1] Lisa Laib appeals from an amended judgment changing custody of her three children to their father, Virgil Laib. Virgil Laib cross-appeals from an order denying his motion for relief from the parties' divorce judgment. We conclude the district court misapplied the law in granting a change of custody to Virgil Laib, but did not abuse its discretion in denying his motion for relief from the divorce judgment. We reverse the amended judgment and remand for further findings and for consideration of Lisa Laib's request for attorney fees for this appeal. We affirm the order denying Virgil Laib's motion for relief from the judgment.

I

[¶ 2] The parties were married in 1996 and had three sons during the course of their marriage. Virgil Laib also has a son from a previous marriage. The family lived north of McClusky on a farm and ranch Virgil Laib had been operating since 1989. During the marriage, the Laibs entered into a contract for deed to purchase three quarter sections of land from Virgil Laib's parents.

[¶ 3] Virgil Laib filed for divorce in June 2004, when he was 38 years old and Lisa Laib was 39 years old. When the parties separated, Virgil Laib's son from the previous marriage stayed with his father on the farm and the parties' three sons lived with Lisa Laib in Minot. The district court awarded custody of the parties' three minor children to Lisa Laib. The court found Virgil Laib had committed domestic violence based on his conviction for terrorizing in an incident involving Lisa Laib, see State v. Laib, 2005 ND 191, 705 N.W.2d 815, and "[o]ther evidence of mental and physical abuse ... in the record" sufficient to trigger the rebuttable presumption against an award of custody under N.D.C.C. § 14-09-06.2(1)(j). Although Lisa Laib had been the subject of a Social Services investigation initiated by Virgil Laib in July 2004 regarding abuse of the children, the investigation resulted in a recommendation that no services were necessary, and the court found no evidence of an ongoing pattern of domestic violence by Lisa Laib. The court found Virgil Laib had not "rebutted [the presumption] by clear and convincing evidence that it would be in the children's best interests to grant Virgil sole or joint custody of the children." The court granted Virgil Laib supervised visitation with the children for the first six months from the date of entry of judgment, supervised visitation with some unsupervised visitation for the next six months, and unsupervised visitation thereafter.

[¶ 4] In dividing the parties' property, the court noted, "[o]ther than the farmstead and the three quarters of land, neither party introduced evidence of the value of any of the property. Therefore, it is impossible for the Court to equitably divide the property by value." The court accepted the parties' agreement on distribution of some of the property and further ruled:

The parties agree Virgil should keep the farmstead and any debt associated with the farmstead. As to the three quarters of land, the testimony at trial was that this property's ownership is in litigation due to Virgil's default on the contract for deed under which he was purchasing the property. Because the ownership is disputed the Court cannot include the property in the marital estate.

The divorce judgment was entered in September 2005, and neither party appealed.

[¶ 5] In April 2006, Virgil Laib filed a motion for an ex parte interim order granting him custody of the three children and also moved for permanent modification of custody. Virgil Laib alleged that Lisa Laib was continuing to abuse the children, she had threatened suicide, and she also had guns in her home. The district court granted the interim order pending a hearing on the change of custody motion. Following a hearing in August 2006, the district court granted the motion to change custody of the three boys from Lisa Laib to Virgil Laib. The court noted Lisa Laib had checked herself into a psychiatric ward in Minot after having suicidal thoughts, had driven a car toward Virgil Laib's girlfriend, and the children had expressed a preference to live with their father on the farm. The court explained:

The Court finds that there has been a significant change in circumstances in that the children have now clearly expressed their desire to live on the farm. The Court is also concerned about Lisa's mental stability based on her suicidal threats and on her behavior in driving a car toward [Virgil Laib's girlfriend]. The Court finds it would be in the children's best interests to grant Virgil's Motion for Change of Custody ... because it is the childrens' [sic] expressed preference, because the evidence presented at the original trial and at the hearing on the Motion establishes that there are many things to do on the farm that the children enjoy and that are not available to them in Minot, and that they are now doing well in school when they were struggling in Minot. There is also evidence that Lisa has hit the children and that she tied [a child] to a chair. Lisa also uses profanity toward the children.

[¶ 6] Virgil Laib also filed a N.D.R.Civ.P. 60(b) motion for relief from the property distribution provisions of the divorce judgment. Virgil Laib alleged the cancellation action over the contract for deed to the three quarter sections of farmland had been resolved and both Virgil and Lisa Laib had redeemed the property. He further alleged that Lisa Laib had initiated an action to partition the farmland. He argued, because the contract for deed had been excluded as marital property during the divorce proceedings, and the legal ownership of the property had now been determined, the divorce court was obligated to determine whether Virgil or Lisa Laib should be awarded the farmland under principles of equitable property distribution. Virgil Laib also alleged Lisa Laib had given "false testimony" in the contract for deed action and her testimony during the divorce proceedings was not credible because, although she testified she had situational depression caused by Virgil Laib, she had been hospitalized for mental health issues before the marriage. The district court denied the motion for relief from the judgment, concluding it had no jurisdiction to rule on the motion because "[t]he referenced real property is not part of the marital estate and is the subject of other litigation."

II

[¶ 7] On appeal, Lisa Laib contends the district court erred in granting Virgil Laib's motion to change custody of the three children.

[¶ 8] When a motion to change custody is brought less than two years after a divorce judgment is entered establishing custody, a stricter or more rigorous modification standard applies. Graner v. Graner, 2007 ND 139, ¶ 30, 738 N.W.2d 9; Seibel v. Seibel, 2004 ND 41, ¶ 6, 675 N.W.2d 182. The applicable standard in this case is set forth in N.D.C.C. § 14-09-06.6(5)(b), which provides:

5. The court may not modify a prior custody order within the two-year period following the date of entry of an order establishing custody unless the court finds the modification is necessary to serve the best interest of the child and:

. . . .

b. The child's present environment may endanger the child's physical or emotional health or impair the child's emotional development;

See also N.D.C.C. § 14-09-06.6(3)(b).

[¶ 9] The party moving for a change of custody within two years after entry of an order establishing custody has the burden to show modification is necessary to serve the best interests of the children and to show the children's present environment may endanger their physical or emotional health or impair their emotional development. Damron v. Damron, 2003 ND 166, ¶ 11, 670 N.W.2d 871. Although the statute does not list a material change of circumstances as a factor to consider when a motion is brought within the two-year time frame, this Court has said "[e]vidence of physical child abuse constituting an environment which endangers the child's physical or mental health is, as a matter of law, a material change of circumstances warranting a change of custody under both N.D.C.C. § 14-09-06.6(5) and (6)." Quarne v. Quarne, 1999 ND 188, ¶ 12, 601 N.W.2d 256; see also Holtz v. Holtz, 1999 ND 105, ¶ 17, 595 N.W.2d 1; Hill v. Weber, 1999 ND 74, ¶ 11, 592 N.W.2d 585.

[¶ 10] A district court's decision whether to change custody is a finding of fact subject to the clearly erroneous standard of review under N.D.R.Civ.P. 52(a). Clark v. Clark, 2006 ND 182, ¶ 18, 721 N.W.2d 6. A finding of fact is clearly erroneous if there is no evidence to support it, if the finding is induced by an erroneous view of the law, or if the reviewing court is left with a definite and firm conviction a mistake has been made. Id.

[¶ 11] In this case the district court made no finding that the children's present environment with Lisa Laib may endanger their physical or emotional health or impair their emotional development. A court may not modify a prior custody order within the two-year period unless it makes an appropriate finding that one of the factors under N.D.C.C. § 14-09-06.6(5) have been met. See Engh v. Engh, 2003 ND 5, ¶ 8, 655 N.W.2d 712. Virgil Laib relies on evidence of Lisa Laib's mental health and her behavior with his girlfriend and the children. However, Lisa Laib voluntarily checked herself into a hospital for treatment of her mental health issues and continues to receive counseling. She attributed her suicidal thoughts to situational depression caused by Virgil Laib's demands for custody of the children and ownership of the farmland....

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