Anderson v. Resler, 990254.

• Decision Date: 26 October 2000
• Docket Number: No. 990254.,990254.
• Citation: 618 N.W.2d 480,2000 ND 183
• Parties: Kevin Lowell ANDERSON and Kaylen Marie Resler, a minor child by and through her guardian ad litem, Dee Larson, Plaintiffs and Appellees, v. Marsha RESLER, Defendant and Appellant.
• Court: North Dakota Supreme Court

618 N.W.2d 480

2000 ND 183

Kevin Lowell ANDERSON and Kaylen Marie Resler, a minor child by and through her guardian ad litem, Dee Larson, Plaintiffs and Appellees, v. Marsha RESLER, Defendant and Appellant.

No. 990254.

Supreme Court of North Dakota.

October 26, 2000.

Leslie Johnson Aldrich, Johnson Law Office, Fargo, for plaintiffs and appellees.

Alan J. Sheppard, Fargo, for defendant and appellant.

MARING, Justice.

[¶ 1] Marsha Resler (Resler) appealed from a judgment changing custody of Resler's daughter from Resler to the child's father, Kevin Anderson (Anderson). We hold the court's finding there has been a substantial change of circumstances compelling a change of custody is not clearly erroneous, and we affirm.

I

[¶ 2] Resler and Anderson were never married, but together they conceived a daughter, who was born November 29, 1992. In November 1994, a judgment was entered declaring Anderson to be the father, awarding custody to Resler with reasonable visitation for Anderson, and ordering Anderson to pay child support of $207 per month and arrearages in the amount of $2,000. The judgment was subsequently amended to establish a more specific visitation schedule and to increase the child support award.

[¶ 3] Anderson is 29 years old and employed as a foreman supervisor for a roofing company. He is also employed with the North Dakota National Guard. Anderson is married and resides in Fargo with his wife Kim, and their daughter, Olivia. Resler is 28 years old and is employed full-time at Meritcare Hospital in Fargo. She is unmarried and resides with her parents in Davenport. She has a son but she is not married to the boy's father, and neither the boy nor his father are parties to these proceedings.

[¶ 4] In October 1998, Anderson filed several motions requesting the court to find Resler in contempt for denial of visitation and requesting the court to change custody of their daughter from Resler to Anderson. Anderson also requested the court to appoint a guardian ad litem to represent the child's best interests, and the court appointed Dee Larson as guardian ad litem for that purpose. On December 7, 1998, the court entered a temporary order directing the guardian ad litem to conduct a custody study, directing visitations to occur through a local visitation program called Rainbow Bridge, and ordering the parties to "cooperate with the scheduling and requirements of Rainbow Bridge." The court directed the parties to neither "undermine the other parent or speak poorly of the other parent in front of the child." The court delayed a ruling on the motions regarding contempt and change of custody until the guardian ad litem's report was completed.

[¶ 5] On April 12, 1999, the court entered an order holding Resler in contempt of court, predicated upon the following findings of fact:

[T]here is no evidence of abuse or neglect regarding [the child] that would give reason for denial of visitation.

....

[Resler] was to cooperate with scheduling and the use of Rainbow Bridge, and it was her direct course of conduct at Rainbow Bridge and her abusive behavior that caused the termination of services from Rainbow Bridge, in direct violation of this Court's Order.

....

[Resler] has also failed to provide reasonable telephone contact. In fact, she put a block on her phone and there was a block placed on the phone of her parents.

The court ordered Resler incarcerated in the Cass County jail for 30 days for her contempt of the court's order and informed Resler she could purge herself and avoid the incarceration by strict compliance with the court's order and by allowing visitation. The court ordered facilitation of visitation by the Fargo Police Department, directing Resler to leave the child with the police at 5:50 p.m. and Anderson to pick up the child at 6:00 p.m. on visitation dates.

[¶ 6] A trial was held in June 1999 on the change-of-custody request, after which the trial court made the following relevant findings:

[T]he minor child ... appears to be basically a normal happy child having formed strong bonds of attachment for both parents.

[T]here exists between the parents and minor child love, affection, and emotional ties.

[T]he parents have the capacity and disposition to give the child love, affection, and guidance and to continue the education of the child.

[T]he parents have the disposition to provide the child with food, clothing, medical care, and ... other material needs.

[T]he behavior and attitudes of [Resler] make the minor child's continued healthy relationship with [Anderson] difficult if not unlikely.

....

[Resler] during the course of the last two years has engaged in conduct either intentionally or subconsciously that [has]totally frustrated the visitation rights of [Anderson].

[Resler] throughout the course of these proceedings has accused [Anderson] of intoxication, injury to the child while in his custody, inappropriate and offensive comments of a sexual nature, letters written explicitly describing having sex with [Resler], telephone calls with intent to harass, and threats of physical abuse, none of which allegations have in anyway been substantiated or corroborated.... [Resler] has in particular made the exchange of the child for visitation purposes so difficult that recent exchanges for visitation purposes have occurred at the Fargo Police Department and has made telephone contact concerning visitation an impossibility.

....

[I]n spite of attempted remedial measures employed both by the parties and the Court visitation continues to be frustrated by [Resler's] conduct.

....

This Court is unable at this stage of these proceedings to fashion a visitation schedule on behalf of [Anderson] that would assure peaceful exchanges and the visitation rights of [Anderson].

....

There is a significant need for [the child] to have a continued healthy relationship with [Anderson], which [Resler] does not or will not recognize.

....

[Resler] has been very uncooperative, not only with the guardian ad litem, but with the Andersons, this Court and other service agencies.... Resler's uncooperativeness also goes to Rainbow Bridge, the visitation exchange center, where she sabotaged their efforts in having peaceful visitation exchanges by combative and angry behavior which caused the parties to be terminated from services from Rainbow Bridge Exchange Center in March of 1999. The Court tried to fashion a clear, specific and fair visitation schedule without success. The Court warned [Resler] that continued visitation problems could mean a change of custody or jail. The warning went unheeded.

Based upon these findings of fact, the trial court made the following conclusions:

[T]here has been a significant change in the circumstances of the parents and the minor child to compel in the child's best interest a change of custody.

[W]ithout a change of custody of the minor child of the parties, the continuity of the parent/child relationship between [Anderson] and the minor child is unlikely.

[A] change of custody would not have a significant negative impact upon the child and would be in the best interest of the child.

[¶ 7] The court entered an amended judgment awarding Anderson custody with substantial visitation for Resler. The court also ordered Resler to pay child support of $228.50 per month. Resler appealed.

II

[¶ 8] Resler has raised numerous issues on appeal. She first contends the trial court's finding there has been a significant change of circumstances compelling a change of custody is clearly erroneous. In 1997, the legislature codified this Court's two-step approach for deciding a change of custody request. See Holtz v. Holtz, 1999 ND 105, ¶¶ 9-10, 595 N.W.2d 1, citing Hill v. Weber, 1999 ND 74, ¶ 9, 592 N.W.2d 585. Section 14-09-06.6(6), N.D.C.C., provides:

6. The court may modify a prior custody order after the two-year period following the date of entry of an order establishing custody 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 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.

Under this codification the court, in deciding whether to change custody, must consider whether there has been a significant change of circumstances since the original custody decree, and, if so, whether the change requires the court to change custody to serve the best interest of the child. Holtz, at ¶ 10. The party seeking modification of a custody order bears the burden of showing a change of custody is required, and the trial court's decision on the issue is a finding of fact subject to the clearly erroneous standard of review. Hendrickson v. Hendrickson, 2000 ND 1, ¶ 16, 603 N.W.2d 896. A finding of fact is clearly erroneous if it is induced by an erroneous view of the law, if there is no evidence to support it, or if it is clear to the reviewing court that a mistake has been made. Id.

[¶ 9] In Blotske v. Leidholm, 487 N.W.2d 607, 609 (N.D.1992), this Court reversed a trial court's decision to change custody of the parties' daughter from her mother to her father, emphasizing there is an aversion to changing the custody of a happy child who has been living with one parent for a substantial time. When the request for a change of custody is primarily predicated upon the custodial parent's frustration of the noncustodial parent's visitation rights, the court must act with restraint and caution:

Visitation between a child and her noncustodial parent is presumed to be in the best interests of the child. Visitation is not only a privilege of the noncustodial parent, but also a right of the child. Only when visitation "is likely to endanger the child's physical or emotional health," may it be withheld.

Having recognized and acknowledged the importance of the noncustodial parent's visitation privilege, we...