Damron v. Damron
Citation | 2003 ND 166,670 N.W.2d 871 |
Decision Date | 13 November 2003 |
Docket Number | No. 20030135.,20030135. |
Parties | Millard Shawn DAMRON, Plaintiff and Appellee, v. Valerie DAMRON, Defendant and Appellant. |
Court | North Dakota Supreme Court |
Tom P. Slorby, Minot, N.D., for plaintiff and appellee.
Tamara Lange (argued), James D. Esseks (on brief), American Civil Liberties Union Foundation, New York, N.Y., and Denise C. Hays (appeared), Pringle & Herigstad, P.C., Minot, N.D., for defendant and appellant.
[¶ 1] Valerie Damron appealed from an amended judgment granting Millard Shawn Damron's motion for a change in custody of the parties' two minor children. We hold Shawn Damron failed to meet his burden of proof under N.D.C.C. § 14-09-06.6(5)(b) for a change of custody within two years of a prior order establishing custody, and we reverse.
[¶ 2] After a ten-year marriage, Valerie and Shawn Damron were divorced in September 2001 under a stipulated divorce decree. They agreed to joint custody of their two minor children, with Valerie Damron receiving primary physical custody of the children subject to reasonable and liberal visitation by Shawn Damron. In September 2002, Shawn Damron moved for a change of custody under N.D.C.C. § 14-09-06.6(5)(b). Relying primarily on Jacobson v. Jacobson, 314 N.W.2d 78 (N.D.1981), Shawn Damron alleged he was entitled to a change of custody because Valerie Damron had begun living with another woman in a homosexual relationship after the divorce. Valerie Damron conceded she was involved in a homosexual relationship, and she lived with her partner in a house with the two children. However, she resisted the motion for a change of custody, asserting she was providing "a safe, loving, happy and nurturing environment" for the children and "taking the children out of a current happy, loving, family environment would not be in the best interests of either child." The trial court concluded the parties' affidavits were sufficient to establish a prima facie case justifying modification and scheduled an evidentiary hearing. See N.D.C.C. § 14-09-06.6(4).
[¶ 3] After an evidentiary hearing, the trial court granted Shawn Damron's motion for a change of custody, finding:
[¶ 4] On appeal, Valerie Damron argues the trial court's modification of custody was not supported by the evidence and was induced by an erroneous view of the law. She also argues modification of custody based on her sexual orientation violates the federal and state constitutions.
[¶ 5] A trial court's decision to modify custody is a finding of fact subject to the clearly erroneous standard of review. In re K.M.G., 2000 ND 50, ¶ 4, 607 N.W.2d 248. A finding of fact is clearly erroneous if there is no evidence to support it, if the reviewing court is left with a definite and firm conviction a mistake has been made, or if the finding is induced by an erroneous view of the law. Id.
[¶ 6] We have recognized a doctrinal aversion to changing the custody of a happy child who has been living with one parent, and the burden on a noncustodial parent seeking a change of custody is "`daunting'" and "`arduous.'" Lovin v. Lovin, 1997 ND 55, ¶¶ 16, 18, 561 N.W.2d 612 (quoting Alvarez v. Carlson, 524 N.W.2d 584, 590 (N.D.1994)). In Lovin, at ¶ 17 (quoting Alvarez, at 589), we said "`[m]aintaining stability and continuity in the child's life, without harm to the child, is the most compelling factor when considering a motion for change of custody.'"
[¶ 7] Generally, a party seeking to modify an existing custody determination must establish a significant change in circumstances which adversely affects the child and requires a change in custody to further the best interests of the child. In re K.M.G., 2000 ND 50, ¶ 4, 607 N.W.2d 248. However, N.D.C.C. § 14-09-06.6(5), which was enacted in 1997, limits custody modifications within two years after a prior custody determination. State ex rel. D.D. v. G.K., 2000 ND 101, ¶ 5, 611 N.W.2d 179; K.M.G., at ¶ 5. We have recognized "[t]he legislature enacted more rigorous requirements for motions brought less than two years after a determination to allow `something of a moratorium for the family' during the two-year period after a custody determination." D.D., at ¶ 5 ( ). The purpose of the moratorium is to spare children the "painful, disruptive, and destabilizing" effects of repeat custody litigation. See Quarne v. Quarne, 1999 ND 188, ¶ 9, 601 N.W.2d 256
(. )
[¶ 8] Section 14-09-06.6, N.D.C.C., provides, in part:
[¶ 9] Here, Shawn Damron brought a motion to modify custody under N.D.C.C. § 14-09-06.6(5)(b), claiming Jacobson effectively created a presumption of harm to children living in a lesbian household and eliminated any requirement for evidence of actual or potential harm to the children. To the extent Jacobson can be read as creating such a presumption, it is overruled.
[¶ 10] Other courts generally have recognized that, in the absence of evidence of actual or potential harm to the children, a parent's homosexual relationship, by itself, is not determinative of custody. See S.N.E. v. R.L.B., 699 P.2d 875, 878-79 (Alaska1985)
( ); Jacoby v. Jacoby, 763 So.2d 410, 413 (Fla.Ct.App.2000) ( ); In re Marriage of R.S., 286 Ill.App.3d 1046, 222 Ill.Dec. 498, 677 N.E.2d 1297, 1301-03 (1996) ( ); D.H. v. J.H., 418 N.E.2d 286, 293 (Ind.Ct.App.1981) ( ); Hassenstab v. Hassenstab, 6 Neb. App. 13, 570 N.W.2d 368, 372-73 (1997) ( ); Inscoe v. Inscoe, 121 Ohio App.3d 396, 700 N.E.2d 70, 82 (1997) ( ); Fox v. Fox, 904 P.2d 66, 69-70 (Okl.1995) ( ); Stroman v. Williams, 291 S.C. 376, 353 S.E.2d 704, 705-06 (Ct.App.1987) ( ); Van Driel v. Van Driel, 525 N.W.2d 37, 39-40 (S.D.1994) ( ); Matter of Marriage of Cabalquinto, ...
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