Bladow v. Bladow, 20040315.

• Citation: 701 N.W.2d 903,2005 ND 142
• Decision Date: 25 July 2005
• Docket Number: No. 20040315.,20040315.
• Court: United States State Supreme Court of North Dakota
• Parties: Wesley Charles BLADOW, Plaintiff, Appellant and Cross-Appellee v. Kristine Gail BLADOW, formerly known as Kristine Gail Berg, Defendant, Appellee and Cross-Appellant.

701 N.W.2d 903

2005 ND 142

Wesley Charles BLADOW, Plaintiff, Appellant and Cross-Appellee v. Kristine Gail BLADOW, formerly known as Kristine Gail Berg, Defendant, Appellee and Cross-Appellant.

No. 20040315.

Supreme Court of North Dakota.

July 25, 2005.

Samuel S. Johnson, Wahpeton, N.D., for plaintiff, appellant and cross-appellee.

Tracey R. Lindberg, Breckenridge, MN, for defendant, appellee and cross-appellant.

KAPSNER, Justice.

[¶ 1] Wesley Charles Bladow appealed, and Kristine Gail Bladow, formerly known as Kristine Gail Berg, cross-appealed from an amended divorce judgment modifying the parties' joint custody agreement, awarding Berg attorney fees, and determining the parties' child support obligations. We affirm the trial court's custody decision and award of attorney fees, reverse the court's determination of Bladow's child support obligation, and remand for further proceedings.

I

[¶ 2] Bladow and Berg were divorced in January 2003, under a stipulated agreement and judgment that awarded them joint physical care, custody, and control of their three minor children and provided they would each share equal custody of the children. Bladow continued to live on a farm near Hankinson, and Berg ultimately moved to Horace. At the time of the divorce, the oldest child was six years old and was enrolled in kindergarten at Hankinson, the second child was four years old, and the youngest child was almost two years old. Disputes arose between the parties regarding the implementation of their custody and visitation agreement and the choice of a school for the oldest child.

[¶ 3] In August 2003, Berg moved to amend the judgment to require a specific schedule for custodial exchanges and to require the oldest child to attend school in Horace. In support of her motion, Berg filed an affidavit that alleged "repeated problems and difficulty in agreeing to a proper exchange schedule." She claimed she had been denied visitation with her oldest child and had been subjected to repeated incidents of physical assault and violence during exchanges. Berg sought to have physical custody of all three children during the school week and to allow Bladow to have custody of the children on weekends during the school year.

[¶ 4] On August 25, 2003, Bladow obtained an ex parte order requiring the parties to follow their informal summer visitation schedule and requiring the oldest child to attend school in Hankinson until a September 4, 2003, evidentiary hearing. The court scheduled a hearing on the ex parte order for September 4, 2003. At the beginning of that hearing, the trial court announced the "matter before the Court [was] a hearing on [Berg's] motion and other items." After that evidentiary hearing, the court ruled from the bench on September 9, 2003, and decided the oldest child would reside primarily with Bladow and attend school in Hankinson, and the two youngest children would reside primarily with Berg during the week, but the court reserved the issue about the choice of school for the two youngest children. The court also established a visitation schedule for the children, which required the three children to be together with one of the parties on weekends and alternated those weekends between Bladow and Berg. After four more days of evidentiary hearings in November 2003 and January and February 2004, the court decided the two youngest children would attend school in West Fargo when they reached school age, awarded Berg $7,000 in attorney fees, and determined child support obligations for both Bladow and Berg.

II

A

[¶ 5] Bladow argues the trial court erred in holding an evidentiary hearing on modification of custody under N.D.C.C. § 14-09-06.6(4), which provides:

A party seeking modification of a custody order shall serve and file moving papers and supporting affidavits and shall give notice to the other party to the proceeding who may serve and file a response and opposing affidavits. The court shall consider the motion on briefs and without oral argument or evidentiary hearing and shall deny the motion unless the court finds the moving party has established a prima facie case justifying a modification. If a prima facie case is established, the court shall set a date for an evidentiary hearing.

Bladow argues the trial court procedurally erred by holding an evidentiary hearing without (1) finding Berg had established a prima facie case warranting a custody modification, and (2) setting a date for an evidentiary hearing. Bladow claims he did not know the September 4, 2003, hearing was to decide custody of the children, and he was prejudiced because he was unable to obtain a custody investigator or have numerous witnesses testify on his behalf. Berg responds the issues of custody and the visitation exchange schedule were tried by the consent of both parties, and she and Bladow both asked the trial court to issue an order that granted them primary residential care of the children.

[¶ 6] Issues not raised in the pleadings, but tried by the express or implied consent of the parties are treated as if they have been raised in the pleadings. Schumacher v. Schumacher, 1999 ND 149, ¶ 25, 598 N.W.2d 131. Under N.D.R.Civ.P. 15(b), a pleading may be amended impliedly by the introduction of evidence that varies the theory of the case and is not objected to by the opposing party. Schumacher, at ¶ 25.

[¶ 7] Berg's motion requested primary residential care of the children during the school year. Bladow's ex parte application for relief also sought an exchange schedule and an award of primary care of the children. The trial court's ex parte order required the oldest child to attend school in Hankinson until the September 4, 2003, hearing. The parties' original agreement provided each parent with virtually equal time with the children, and the trial court recognized that, given the physical distance between the parents, there was no possible way to provide each party with equal time with the children when they began attending school. At the beginning of the September 4, 2003, hearing, the court announced the case as "a hearing on [Berg's] motion and other matters." Bladow did not object or request a continuance. The transcript of the September 4, 2003, hearing reflects that, without objection, both parties presented evidence involving custody and visitation at that hearing. When the trial court decided custody in its oral ruling from the bench on September 9, 2003, Bladow did not object to the scope of the court's order, and by motion filed on September 18, 2003, he sought temporary legal and actual physical custody of the three children. We conclude the issues about custody of the children and visitation were tried by consent of the parties at the September 4, 2003, hearing, and we reject Bladow's claim about lack of notice of the scope of that hearing.

[¶ 8] Bladow also claims Berg's motion failed to establish a prima facie case for a custody modification under N.D.C.C. § 14-09-06.6(3), because her affidavit contains (1) no specific allegations that he interfered with visitation, and (2) no specific allegations that the children's present environment somehow endangered their physical or emotional health. [¶ 9] Whether a party has established a prima facie case entitling the party to an evidentiary hearing on a motion for change of custody is a question of law. Hawley v. LaRocque, 2004 ND 215, ¶ 4, 689 N.W.2d 386. We review questions of law de novo on the entire record. Id. The purpose of N.D.C.C. § 14-09-06.6 is to curtail repeated custody litigation. Quarne v. Quarne, 1999 ND 188, ¶ 9, 601 N.W.2d 256. Under N.D.C.C. § 14-09-06.6(3), no motion to modify a custody order may be made within two years after entry of an order establishing custody unless the moving party has established a prima facie case justifying modification and the court finds:

a. The persistent and willful denial or interference with visitation;

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

c. The primary physical care of the child has changed to the other parent for longer than six months.

Under N.D.C.C. § 14-09-06.6(4), a trial court must set a date for an evidentiary hearing on a motion for change of custody if a prima facie case justifying modification is established. Quarne, at ¶ 11.

[¶ 10] The evidence submitted to the trial court, including Bladow's evidence in support of the ex parte order, indicated problems implementing visitation exchanges. In support of her motion, Berg filed an affidavit that alleged "repeated problems and difficulty in agreeing to a proper exchange schedule." She stated custodial exchange incidents were repeated and common. She specifically claimed instances in which she had been denied visitation with her oldest child and had been subjected to repeated incidents of physical assault and violence during exchanges. She submitted police reports regarding exchange problems. We conclude the trial court had sufficient evidence to implicitly find a persistent and willful denial or interference with visitation when the court scheduled the September 4, 2003, hearing. This case involves more than the lack of detailed allegations involved in Hawley, 2004 ND 215, ¶ 10, 689 N.W.2d 386. Although frustration of visitation, by itself, may not always be enough to ultimately modify custody, we conclude the evidence provided to the trial court in this case was sufficient to establish a prima facie case justifying modification and to warrant an evidentiary hearing. We reject Bladow's claims that the trial court procedurally erred in determining custody.

B

[¶ 11] Bladow argues the trial court clearly erred in awarding split custody of the children. He claims although the court arguably found a "persistent and willful denial or interference with visitation" under N.D.C.C. § 14-09-06.6(5), the court did not exhaust all remedies regarding visitation and...