Frieze v. Frieze

• Decision Date: 04 March 2005
• Docket Number: No. 20040103.,20040103.
• Citation: 2005 ND 53,692 N.W.2d 912
• Court: North Dakota Supreme Court
• Parties: Suzanne Marie FRIEZE, now known as Suzanne Marie Roll, Plaintiff and Appellee v. Lyle Allan FRIEZE, Defendant and Appellant.

692 N.W.2d 912

2005 ND 53

Suzanne Marie FRIEZE, now known as Suzanne Marie Roll, Plaintiff and Appellee v. Lyle Allan FRIEZE, Defendant and Appellant.

No. 20040103.

Supreme Court of North Dakota.

March 4, 2005.

Arnold V. Fleck, Fleck Law Office, Bismarck, N.D., for plaintiff and appellee.

Suzanne M. Schweigert, Smith Bakke Oppegard Porsborg Wolf, Bismarck, N.D., for defendant and appellant.

NEUMANN, Justice.

[¶ 1] Lyle Frieze appealed from an order and amended judgment granting Suzanne Roll's motion to change the residence of the parties' children from Wyoming to California and denying Frieze's motion for a change of custody. Following oral argument this case was temporarily remanded to the trial court under N.D.R.App.P. 35 for preparation of findings of fact. We now affirm, and remand for determination of Roll's request for attorney fees on appeal.

I

[¶ 2] Frieze and Roll were married in 1988 and have three children of their marriage. They were divorced in 2002. The divorce decree, entered upon the parties' stipulation, awarded Roll custody of the children with reasonable visitation for Frieze. Frieze continues to live in North Dakota, but Roll moved to Wyoming with the children prior to the divorce, and the original decree authorized her "to change the residence of the minor children to Casper, Wyoming." In May 2003, she married Todd Roll. Shortly after their marriage, he moved to California where he had secured employment. Suzanne Roll then filed a motion with the district court in North Dakota requesting permission to move with the children from Wyoming to California. In response, Frieze filed a motion requesting the court to change custody of the children to him. After a hearing, the district court granted Roll's motion to change residence and denied Frieze's request for a change of custody.

II

[¶ 3] On appeal, Frieze asserts the trial court's denial of his motion to change custody is clearly erroneous. When a motion to change custody is brought within two years following entry of the order establishing custody, N.D.C.C. § 14-09-06.6(5) limits the grounds upon which such motion can be granted:

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:

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.

The trial court's decision whether to modify custody is a finding of fact which will not be overturned unless it is clearly erroneous. Hanson v. Hanson, 2003 ND 20, ¶ 8, 656 N.W.2d 656. A finding of fact is clearly erroneous if there is no evidence to support it, if it is clear to the reviewing court that a mistake has been made, or if the finding is induced by an erroneous view of the law. Id.

[¶ 4] In support of his motion to change custody, Frieze claims Roll willfully and persistently denied or interfered with his visitation rights. He asserts she refused to allow some visits granted under the court order and she also would not allow him to speak to the children on the telephone. We have often stated that evidence of alienation or persistent frustration of visitation rights can be relevant in deciding whether there is a significant change in circumstances to warrant a change of custody. See, e.g., Hendrickson v. Hendrickson, 1999 ND 37, ¶ 13, 590 N.W.2d 220

. Under Section 14-09-06.6(5), N.D.C.C., the legislature has expressly recognized that frustration of visitation may require a change of custody. The legislature considers persistent frustration of visitation and the emotional and physical endangerment of children to be in the same behavioral class and accords the same remedy of a change of custody. Hendrickson v. Hendrickson, 2000 ND 1, ¶ 18, 603 N.W.2d 896. Methods other than a change of custody should be used initially to attempt to remedy a parent's misbehavior, but, after exhausting other remedies, a change in custody may be the only method to correct the damage of a particularly stubborn and defiant custodial parent, and if alternative remedies fail the district court should consider a change in custody. Id. A custodial parent's egregious violation of court-ordered visitation is evidence of an intransigent attitude against visitation rights and such alienating behavior can weigh against a child's best interest. Anderson v. Resler, 2000 ND 183, ¶ 11, 618 N.W.2d 480.

[¶ 5] Regarding Frieze's claim that Roll interfered with his visitation, the district court made the following relevant findings:

[Frieze] has failed to show persistent and willful denial of interference with visitation by [Roll] ... as is required under NDCC, Section 14-09-06.6 in order for a custody decree to be modified within 2 years after its date of entry; and therefore no material or significant change of circumstances exist and [Frieze's] Motion To Change Custody is denied....

[Roll] has allowed [Frieze] all the visits he's entitled to under the judgment and more, despite [Frieze's] demanding nature and verbally abusive past. [Roll] understands the children love their father and believes it's important to the children they have a relationship with their father. She provided or arranged for half of the transportation for the vast majority of the visits that [Frieze] exercised in Mott, though she had no obligation to do so under the judgment....

In an attempt to establish a claim that [Roll] had been interfering with his right to speak to the children by telephone, [Frieze] maintained a log of his telephone calls, but often called only during times he had been informed in advance by [Roll] that the children would not be home or after he knew the children [were] in bed. When [Roll] proposed, in response to his complaints that he couldn't reach his children by telephone, that [Frieze] call at specified times each week, he refused to agree to such a schedule, stating he preferred to go back to court. He would bring witnesses along on the trips to Spearfish, South Dakota, where the parties usually met to exchange the children for each visit, and arrive more than an hour early for the exchanges when he was picking up the children and more than an hour late when returning the children, but inform the witness that the time scheduled for the exchange was at the time they arrived, to make it look like [Roll] was constantly late bringing the children and he was on time when he returned the children.... He also made claims that he was denied visits to which he was entitled under the judgment, which claims were not supported by his own testimony.

[¶ 6] We conclude the trial court's findings on this issue are supported by the evidence and are not clearly erroneous. While these parties have exhibited animosity toward each other, it appears that Roll has attempted to accommodate Frieze's visitation rights under the divorce decree. Some of the frustrations Frieze has experienced in attempting to exercise visits or talk with the children on the telephone appear to be caused by his own actions in not scheduling his visitations and making telephone calls at times which are reasonable for the children and when the custodial parent can accommodate them.

[¶ 7] In support of the motion for change of custody, Frieze also asserts the children's present environment may endanger their physical or emotional health or impair their emotional development. Specifically, Frieze claims their son who has diabetes is not being cared for appropriately by Roll and his blood sugar levels are not being adequately controlled. He also claims the children's stepfather has been physically abusive to them. With regard to these allegations the trial court made the following relevant findings:

[Frieze] ... has also failed to show that the childrens' present environment may endanger the childrens' physical or emotional health or impair the childrens' emotional development, as is required under NDCC, Section 14-09-06.6 in order for a custody decree to be modified within 2 years after its date of entry. In March of 2003, on the seventh day of a nine day visit, he had the child with diabetes tested in Bismarck and, then, attempted to use the results of the test as means of proving [Roll] was not properly caring for the child without acknowledging the child had been under his care for the week prior to testing.

[¶ 8] In his appellate brief, Frieze concedes that the allegations of physical abuse by the children's stepfather, "comes down to weighing the credibility of [the stepfather's] word against the children's." A trial court's opportunity to observe the witnesses and determine credibility should be given great deference. Hanson v. Hanson, 2003 ND 20, ¶ 11, 656 N.W.2d 656. We conclude the evidence supports the trial court's finding that Frieze failed to demonstrate the children's present environment living with Roll as the custodial parent may endanger the children's physical health or emotional development.

[¶ 9] After reviewing the evidence in this case, we conclude the trial court's finding that Frieze failed to demonstrate the statutory prerequisites for a change of custody within two years of entry of the initial order establishing custody is not clearly erroneous.

III

[¶ 10] On appeal, Frieze also asserts the trial court's decision to grant Roll's motion for a change of residence is clearly erroneous. The initial divorce decree specifically authorized Roll to reside with the children in Casper, Wyoming. Roll remarried and her husband shortly thereafter moved to California where he was able to find work in his field. Roll then filed a motion with the district court for permission to change residence of the children to...