Aus v. Carter, 990101.
| Decision Date | 23 December 1999 |
| Docket Number | No. 990101.,990101. |
| Citation | 603 N.W.2d 885,1999 ND 246 |
| Parties | Kelvin AUS, Plaintiff and Appellant, v. Tommie "Jane" CARTER, n/k/a Tommie "Jane" Thiel, Defendant and Appellee. |
| Court | North Dakota Supreme Court |
Kelvin Aus, pro se, Minot, ND, for plaintiff and appellant.
Robert S. Thomas, Thomas & Thomas, Minot, ND, for defendant and appellee.
[¶ 1] Kelvin Aus appeals the trial court's denial of his motion for a new trial based on newly discovered evidence under N.D.R.Civ.P. 59(b)(4). We hold the trial court erred in failing to treat the motion for a new trial to re-examine the issue of custody as a motion for a change in custody, and the trial court abused its discretion in not considering the factors created in Stout v. Stout, 1997 ND 61, 560 N.W.2d 903, for determining whether a new trial should be granted to re-examine the issue of the custodial parent's move. We reverse and remand for further proceedings.
[¶ 2] Kelvin Aus and Tommie "Jane" Carter1 lived together from about December 1993 to about November 1995. They never married but did have a daughter, Katelin. She was born on July 7, 1994. Katelin has lived with Tommie since Kelvin and Tommie's relationship ended in about November 1995. Tommie is now married to Jim Thiel.
[¶ 3] In March 1996, Kelvin sued for custody of Katelin and for child support from Tommie. Tommie also sought an award of custody and child support. Prior to trial, Kelvin and Tommie agreed Tommie would have primary physical custody of Katelin and Kelvin would pay $100 per month in child support until a trial could be held. An interim order incorporating their agreement was entered in January 1997.
[¶ 4] On June 10, 1998, trial was held. The trial court found: Kelvin owed $18,654 in child support arrearage due for other children in his former wife's custody; Kelvin had no contact with his children from his marriage for 15 years after the divorce; Kelvin has paid no child support for Katelin during the last year; Tommie is married to Jim Thiel and has secured a job in Missouri; Tommie's extended family lives near the Missouri-Arkansas border; Katelin has lived with Tommie for her entire life; and Tommie has been the primary caretaker for Katelin during Katelin's lifetime. The trial court analyzed the factors set forth under N.D.C.C. § 14-09-06.2 and determined: the capacity and disposition of the parents to give love, affection and guidance and to continue the child's education favored Tommie because she has been the primary caregiver; the capacity and disposition of the parents to provide food, clothing, medical care, and other care favored Tommie because Kelvin's history indicates he has not provided for Katelin or for his children from his marriage; the length of time that Katelin has lived in a stable environment favored Tommie; and the permanence of the existing home favored Tommie because Tommie and Katelin have lived together for all of Katelin's life. The trial court awarded Tommie custody of Katelin, permitted Tommie to move with Katelin to Missouri, and granted visitation to Kelvin. The judgment was entered on July 16, 1998.
[¶ 5] In September 1998, Kelvin moved for a new trial, citing N.D.R.Civ.P. 59(b)(3)-(6). The trial court denied Kelvin's motion, reasoning Kelvin provided no evidentiary support.
[¶ 6] Kelvin again moved for a new trial on November 17, 1998. In support of his motion, he asserted Tommie had presented a forged letter to the court during the June trial. The letter indicated Tommie had secured employment with a business in Missouri. Kelvin alleged Tommie forged the letter and the letter was newly discovered evidence material to the decision under N.D.R.Civ.P. 59(b)(4).
[¶ 7] In considering the motion, the trial court acknowledged "[t]he letter was false and misleading" and "Tommie may have known it was false." However, reasoning the false letter did not affect its best interest analysis and it "would have allowed the move without the letter," the trial court rejected Kelvin's assertion the letter was newly discovered evidence material to the decision. On February 11, 1999, the trial court issued a memorandum opinion and order, denying Kelvin's motion for a new trial. Kelvin appealed.
[¶ 8] Because the trial court's original judgment both awarded custody of Katelin to Tommie and permitted Tommie to move with Katelin to Missouri, the trial court's denial of Kelvin's motion for a new trial raises two issues. For our purposes, Kelvin's motion will be treated as two distinct motions, one to re-examine the award of custody and one to re-examine the permission to move.
[¶ 9] Kelvin contends the trial court erred in not granting a new trial to re-examine the issue of custody because the false letter illustrates Tommie's deceitful nature and lack of parental fitness which is a relevant factor for determining a child's best interests under N.D.C.C. § 14-09-06.2(1)(f).
[¶ 10] In Lovin v. Lovin, 1997 ND 55, ¶¶ 12-13, 561 N.W.2d 612, we indicated a party's motion for a new trial based on newly discovered evidence in a custody case must be treated as a motion for change of custody.2 We explained a motion for a new trial based on newly discovered evidence in a custody case is improper because the trial court has continuing jurisdiction to modify custody when new evidence arises. Id. at ¶ 13.
[¶ 11] Under N.D.C.C. § 14-09-06.6, a party's right to move for a change of custody is limited.3 The statute provides:
[¶ 12] Further, a court's power to modify custody is limited. Under N.D.C.C. § 14-09-06.6(5):
[¶ 13] Here, the trial court failed to explicitly treat a motion for a new trial based on newly discovered evidence in a custody case as a motion for a change of custody. By not treating the motion as one for a change of custody, the trial court never indicated whether any of N.D.C.C. § 14-09-06.6(5)'s three exceptions are applicable.4 The trial court appeared to merely apply N.D.R.Civ.P. 59(b)(4)'s test for determining whether a new trial should be granted; the trial court found the letter did not affect the outcome of the best interest analysis and concluded "[t]hat Tommie may have participated in giving untrue evidence to the Court is not newly discovered evidence material to the party making the application."
[¶ 14] The trial court's failure to treat the motion as one for change of custody may have prejudiced Kelvin. A parent's intentional presentment of false evidence to a court of law could be relevant to a child's best interest under N.D.C.C. § 14-09-06.6(5). If a party tries to deceive a court by presenting false evidence, the party's motives should be considered. The party's deception could involve a "persistent and willful denial or interference with visitation," N.D.C.C. § 14-09-06.6(5)(a); it may involve evidence of an "environment [that] may endanger the child's physical or emotional health or impair the child's emotional development." N.D.C.C. § 14-09-06.6(5)(b). Although it may be implied the trial court determined the false and misleading letter presented no circumstances requiring modification to serve the best interest of the child under N.D.C.C. § 14-09-06.6(5), we decline to make such assumption when it is clear the trial court was applying a standard applicable to the procedural rules rather than the statute. We remand so the trial court may apply the test provided by N.D.C.C. § 14-09-06.6(5) and make the necessary findings. The trial court may determine whether the existing record is sufficient or if additional testimony is necessary to make the findings.
[¶ 15] Kelvin asserts the trial court erred in not granting a new trial to re-examine the issue of whether the move was in Katelin's best interests; in support he contends Tommie's false letter was newly discovered material evidence under N.D.R.Civ.P. 59(b)(4).
[¶ 16] A motion for a new trial to re-examine a custodial parent's move is governed by N.D.R.Civ.P. 59. Rule 59(b)(4), N.D.R.Civ.P., provides a new trial may be granted in an instance involving the discovery of new evidence:
(1) the evidence must have been discovered following trial; (2) the movant must have exercised due diligence in discovering the evidence; (3) the evidence must not be merely...
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Dickson v. Dickson, 20010011.
...Whether a custodial parent has secured employment at the proposed site of relocation should be considered under the first factor. Aus v. Carter, 1999 ND 246, ¶ 21, 603 N.W.2d [¶ 13] Regarding the prospective economic advantages of the move under the first factor, the trial court found: [Ste......
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...of false evidence to a court of law could be relevant to a child's best interests and to a parent's fitness for custody. Aus v. Carter, 1999 ND 246, ¶ 14, 603 N.W.2d 885. We stated such deception could involve false or misleading evidence of an environment that may endanger the child's phys......