Frueh v. Frueh

Decision Date27 August 2009
Docket NumberNo. 20080231.,20080231.
Citation771 N.W.2d 593,2009 ND 155
PartiesDarin G. FRUEH, Plaintiff and Appellant v. Melissa A. FRUEH, n/k/a Melissa Hoheisel, Defendant and Appellee.
CourtNorth Dakota Supreme Court

Michael S. McIntee, Towner, N.D., for plaintiff and appellant.

Rebecca C. Graves, Bismarck, N.D., for defendant and appellee.


[¶ 1] Darin Frueh appeals from a district court order denying his motion for a change of custody. We conclude the district court relied upon impermissible factors in deciding whether a change in custody was in the child's best interests, and we reverse and remand.


[¶ 2] Darin Frueh and Melissa Frueh, now known as Melissa Hoheisel, were married in 1992 and had one child together in December 1994. They divorced in January 2004. The parties stipulated to custody and visitation of the child, and the stipulation was incorporated into a judgment. Hoheisel was awarded physical custody of the child, and Frueh was awarded visitation. An amended judgment was entered in July 2004, setting Frueh's child support obligation at $168 per month under the child support guidelines. After the divorce, Hoheisel moved with the child from the parties' home in Goodrich to Bismarck. Hoheisel remarried in March 2006.

[¶ 3] In July 2007, Frueh moved for a change of custody, arguing there was a material change in circumstances because the child wanted to live with him, Hoheisel had remarried, and Hoheisel's husband physically assaulted the child. An affidavit and a handwritten letter from the child explaining why the child wanted to live with Frueh and alleging Hoheisel's husband grabbed him by the throat in 2006 were filed in support of Frueh's motion. The district court concluded Frueh did not establish a prima facie case under N.D.C.C. § 14-09-06.6(4) warranting an evidentiary hearing. Frueh appealed, and in Frueh v. Frueh, 2008 ND 26, 745 N.W.2d 362, we held Frueh had presented sufficient evidence to establish a prima facie case for modification of custody. We reversed the district court's decision and remanded for an evidentiary hearing on Frueh's motion.

[¶ 4] During an August 12, 2008, evidentiary hearing, Frueh, Hoheisel, and several other witnesses testified, and the court interviewed the child in chambers. Both parties' attorneys were present during the child's interview but were not allowed to question the child. After the hearing, the court denied Frueh's motion to modify custody, finding Hoheisel's remarriage and the child's preference to live with Frueh were material changes in circumstances, but a change in custody would not be in the child's best interests.

[¶ 5] The district court had jurisdiction under N.D. Const. art. VI, § 8, and N.D.C.C. § 27-05-06. Frueh's appeal is timely under N.D.R.App.P. 4(a). This Court has jurisdiction under N.D. Const. art. VI, §§ 2 and 6, and N.D.C.C. § 28-27-01.


[¶ 6] Frueh argues the district court erred in denying his motion for a change of custody. He contends the court's finding that the child is not a mature child for purposes of expressing a preference is clearly erroneous, and the court improperly based its decision on its opinion that Frueh is not paying enough child support.

[¶ 7] A district court's decision whether to modify custody is a finding of fact, which will not be reversed on appeal unless it is clearly erroneous. Siewert v. Siewert, 2008 ND 221, ¶ 16, 758 N.W.2d 691. "A finding of fact is clearly erroneous if `there is no evidence to support it, if the finding is induced by an erroneous view of the law, or if the reviewing court is left with a definite and firm conviction a mistake has been made.'" Id. (quoting Stanhope v. Phillips-Stanhope, 2008 ND 61, ¶ 7, 747 N.W.2d 79). The district court is in a better position to weigh the evidence because it has the opportunity to observe the witnesses' demeanor and assess their credibility, and we do not retry custody issues or reassess the witnesses' credibility if the court's decision is supported by evidence in the record. Id. at ¶ 24. A district court's choice between two permissible views of the evidence is not clearly erroneous. Id.


[¶ 8] If more than two years have elapsed since an order establishing custody was entered, a court may modify the prior custody order 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.

N.D.C.C. § 14-09-06.6(6). The party seeking to change custody has the burden of proving there has been a material change in circumstances and a change in custody is necessary to serve the child's best interests. Siewert, 2008 ND 221, ¶ 16, 758 N.W.2d 691.

[¶ 9] "A material change in circumstances is an important new fact that was not known at the time of the prior custody decree; however, not every change will be sufficient to warrant a change of custody." Siewert, 2008 ND 221, ¶ 17, 758 N.W.2d 691. A parent's remarriage and a mature child's preference both may be changes in circumstances sufficient to warrant a change of custody. Mosbrucker v. Mosbrucker, 1997 ND 72, ¶ 10, 562 N.W.2d 390. Here, the district court found the child's preference and Hoheisel's remarriage constituted a material change in circumstances, and the parties do not argue those circumstances do not constitute a material change in circumstances.


[¶ 10] If a district court finds there has been a material change in circumstances, it must then consider whether a change in custody is necessary to serve the child's best interests. Siewert, 2008 ND 221, ¶ 19, 758 N.W.2d 691. The court must apply the factors set out in N.D.C.C. § 14-09-06.2(1) to decide whether a change in custody is in the child's best interests. Id. The child's best interests must be considered against the backdrop of the stability of the child's relationship with the custodial parent. Id. The best interest factors include:

a. The love, affection, and other emotional ties existing between the parents and child.

b. The capacity and disposition of the parents to give the child love, affection, and guidance and to continue the education of the child.

c. The disposition of the parents to provide the child with food, clothing, medical care, or other remedial care recognized and permitted under the laws of this state in lieu of medical care, and other material needs.

d. The length of time the child has lived in a stable satisfactory environment and the desirability of maintaining continuity.

e. The permanence, as a family unit, of the existing or proposed custodial home.

f. The moral fitness of the parents.

g. The mental and physical health of the parents.

h. The home, school, and community record of the child.

i. The reasonable preference of the child, if the court deems the child to be of sufficient intelligence, understanding, and experience to express a preference.

j. Evidence of domestic violence....

k. The interaction and interrelationship, or the potential for interaction and interrelationship, of the child with any person who resides in, is present, or frequents the household of a parent and who may significantly affect the child's best interests. The court shall consider that person's history of inflicting, or tendency to inflict, physical harm, bodily injury, assault, or the fear of physical harm, bodily injury, or assault, on other persons.

l. The making of false allegations not made in good faith, by one parent against the other, of harm to a child as defined in section 50-25.1-02.

m. Any other factors considered by the court to be relevant to a particular child custody dispute.

N.D.C.C. § 14-09-06.2(1).

[¶ 11] Here, the district court applied the best interest factors and found none of the factors favored either Frueh or Hoheisel, except factors b and m, which favored Hoheisel. Frueh argues the district court improperly based its decision on the amount of child support he pays and erred in failing to consider the child's preference.

[¶ 12] The district court's decision referred to the amount of Frueh's child support obligation, and the court said the level of support was a relevant factor in deciding whether it was in the child's best interests to modify custody:

Clearly with the financial resources [Frueh] has available for [the child] he has been able to provide more fun experiences for [the child]. In 2007 [Frueh] paid [the child] $4,500 for helping him on the farm. [The child] stated he would help [Frueh] and his uncle after he got up around 11:00 a.m. most days. Remarkably enough [Frueh] has only been able to afford to pay minimum wage based child support of $168 per month ($2,016 per year) to assist in the support of [the child], which is less then half of the money he pays [the child]. As he testified at the hearing when asked about his large farm operation, substantial acreage and his minimum wage income, "I've got expenses." Clearly [Frueh] has deliberately created an environment on his "minimum wage income" that allows him to provide far more for [the child] than his "remedial care." It is no wonder [the child] wants to live with [Frueh].

In considering other factors relevant to the custody dispute under N.D.C.C. § 14-09-06.2(1)(m), the court found:

The Court is troubled by the fact [Frueh], with his large farming operation and his substantial acreage, and his "minimum wage" income, is so very able and willing to provide [the child] with a four wheeler and a snowmobile, more cash than he pays in child support, a checking account, a cell phone and lots of freedom. [Frueh] has clearly been engaged in a long term effort to "buy" [the child's] affection, and his plan has worked. [The child] clearly wants to be with [Frueh], but this treatment will not stop whether [the child] is in [Frueh's] custody or [Hoheisel's] custody. [H...

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