Glass v. Glass

• Decision Date: 15 July 2011
• Docket Number: No. 20100260.,20100260.
• Citation: 2011 ND 145,800 N.W.2d 691
• Parties: Julie E. GLASS, Plaintiff and Appellantv.Darin M. GLASS, Defendant and Appellee.
• Court: North Dakota Supreme Court

800 N.W.2d 691

2011 ND 145

Julie E. GLASS, Plaintiff and Appellant

v.Darin M. GLASS, Defendant and Appellee.

No. 20100260.

Supreme Court of North Dakota.

July 15, 2011.

Brenda A. Neubauer, Bismarck, N.D., for plaintiff and appellant.Suzanne Marie Schweigert (argued) and Stacy Mae Moldenhauer (on brief), Bismarck, N.D., for defendant and appellee.SANDSTROM, Justice.

[¶ 1] Julie E. Glass appeals from a judgment changing primary residential responsibility of her three children from her to their father, Darin M. Glass. We affirm, concluding the district court's decision to change primary residential responsibility is not clearly erroneous and the court did not abuse its discretion in denying Julie Glass's request for a continuance.

I

[¶ 2] The parties lived together in Bismarck at the time of their divorce in 2005. The divorce judgment incorporated the parties' “Property Settlement and Custody Agreement,” which awarded Julie Glass primary residential responsibility of the couple's three sons, who were 16, 13, and 8 years old during the post-divorce proceedings in this case. The oldest child has attention deficit hyperactivity disorder and a form of Asperger's syndrome. The youngest child also has Asperger's syndrome. Darin Glass was ordered to pay child support and was awarded reasonable parenting time.

[¶ 3] Julie Glass moved with the children to Casselton in June 2006 and married Mark Hopewell in July 2007, but the couple divorced in February 2009 after Hopewell lost his job in Fargo and moved to Colorado to seek employment. Julie Glass began dating Steve McNab in March 2009, and he moved into Julie Glass's home two months later. McNab is divorced and has three children through his prior marriage, and during his parenting weekends, McNab's children resided with Julie Glass and her children. Darin Glass remarried in February 2009 and lives with his wife, Debbie Glass, in Mandan. After his divorce, Darin Glass exercised sporadic parenting time with his children until his remarriage, when he began exercising parenting time about one weekend per month.

[¶ 4] On December 31, 2009, Darin Glass moved for an ex parte interim order to immediately change the primary residential responsibility of his three children, which was followed by a motion to modify the parties' divorce judgment to grant him primary residential responsibility of the children. The motions were triggered by two incidents that occurred at Julie Glass's Casselton home in late 2009. The first incident occurred in late October 2009 when the oldest son, who has been described as “suffer[ing] from a lack of judgment and insight,” took a gun from his bedroom and pointed it at McNab's children. Investigating law enforcement officers searched the son's bedroom and found more than ten firearms, ammunition, a used pipe containing an unidentified substance, two empty alcohol bottles, and prescription medications. As the result of this incident, McNab was restricted to supervised parenting time with his children. The second incident occurred in the middle of the night in late December 2009 after Julie Glass and McNab had been drinking alcohol. McNab got into a physical altercation with Julie Glass and a verbal altercation with the oldest son when Julie Glass tried to stop McNab from confronting the son about the gun incident. All of the children were present in the home, and the younger children were awakened by the disturbance. Julie Glass called 911 and informed the operator that McNab had punched or kicked her in the stomach and that McNab would kill her. Although charges were filed against McNab, those charges were ultimately dismissed.

[¶ 5] While staying with Darin Glass temporarily in January 2010, the oldest child called 911 and claimed Debbie Glass was threatening him. A law enforcement officer was dispatched to the residence but took no action. The oldest child was argumentative with and disrespectful to the officer and Debbie Glass at the time. Social Services investigated and determined no services were required.

[¶ 6] A parenting investigator's report was submitted on May 28, 2010, less than 30 days before the scheduled June 22 and 23, 2010, evidentiary hearing. The parenting investigator recommended:

The children should remain in Julie's primary residential responsibility if and only if she terminates her involvement with Steven McNab immediately. She needs to make her children her priority, and dedicate herself to their welfare at this time in their young lives. If she is not willing to do that, then Darin shall have primary residential responsibility.

[¶ 7] The district court denied Julie Glass's request for a continuance of the scheduled hearing, and Julie Glass declined the court's offer to delay the parenting investigator's testimony until July 1, 2010, after the 30–day time period in N.D.C.C. § 14–09–06.3(3) and N.D.R.Ct. 8.6(c)(9) had passed. Numerous witnesses testified at the evidentiary hearing, including the two oldest children. The children testified that they wanted to live with Julie Glass. Julie Glass testified that she “hope[d]” to continue her relationship with McNab. Following the hearing, the court granted Darin Glass's motion and awarded him primary residential responsibility of the children.

[¶ 8] The district court had jurisdiction under N.D. Const. art. VI, § 8, and N.D.C.C. § 27–05–06. Julie Glass'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.

II

[¶ 9] Julie Glass argues the district court erred in changing primary residential responsibility of the children to Darin Glass.

[¶ 10] Section 14–09–06.6(6), N.D.C.C., governs motions to modify primary residential responsibility after two years from the entry of a previous order:

The court may modify the primary residential responsibility after the two-year period following the date of entry of an order establishing primary residential responsibility 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.

[¶ 11] In Lechler v. Lechler, 2010 ND 158, ¶ 9, 786 N.W.2d 733, we explained the two-step analysis for a motion to modify primary residential responsibility:

The party seeking to change primary residential responsibility has the burden of proving there has been a material change in circumstances and a change in primary residential responsibility is necessary to serve the child's best interests. Frueh v. Frueh, 2009 ND 155, ¶ 8, 771 N.W.2d 593. We have defined a “material change in circumstances” as “an important new fact that was not known at the time of the prior custody decree.” Siewert v. Siewert, 2008 ND 221, ¶ 17, 758 N.W.2d 691. If a district court determines no material change in circumstances has occurred, it is unnecessary for the court to consider whether a change in primary residential responsibility is necessary to serve the children's best interests. See Machart v. Machart, 2009 ND 208, ¶ 11, 776 N.W.2d 795. A district court's decision whether to modify primary residential responsibility is a finding of fact which will not be reversed on appeal unless clearly erroneous. Dunn v. Dunn, 2009 ND 193, ¶ 6, 775 N.W.2d 486. 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.

See also Gussiaas v. Neustel, 2010 ND 216, ¶ 5, 790 N.W.2d 476.

A

[¶ 12] Julie Glass argues the district court failed to conduct the appropriate two-step analysis, because it did not make findings that any of the facts presented constituted a material change in circumstances.

[¶ 13] “ ‘A material change of circumstances can occur if a child's present environment may endanger the child's physical or emotional health or impair the child's emotional development.’ ” Siewert v. Siewert, 2008 ND 221, ¶ 17, 758 N.W.2d 691 (quoting Stanhope v. Phillips–Stanhope, 2008 ND 61, ¶ 6, 747 N.W.2d 79). If domestic violence does not rise to the level necessary to invoke the presumption against primary residential responsibility contained in N.D.C.C. § 14–09–06.2(j), there may nevertheless be a material change of circumstances to justify a change in primary residential responsibility under N.D.C.C. § 14–09–06.6. See Lechler, 2010 ND 158, ¶ 17, 786 N.W.2d 733; Niemann v. Niemann, 2008 ND 54, ¶ 14, 746 N.W.2d 3. The relocation of a parent with primary residential responsibility, see Neustel, 2010 ND 216, ¶ 8, 790 N.W.2d 476, that parent's history of relationships with significant others, see id. at ¶ 9, and improvements in a noncustodial parent's situation, see Ehli v. Joyce, 2010 ND 199, ¶ 8, 789 N.W.2d 560, when accompanied by other relevant circumstances, may also constitute material changes in circumstances.

[¶ 14] Here, the district court focused on Julie Glass's move with the children from Bismarck to Casselton, an improvement in the stability of Darin Glass's life, Julie Glass's relationship with McNab shortly after her divorce from Hopewell, the gun incident with the oldest child, and McNab's “domestic assault” of Julie Glass. The court found that “sufficient facts as set out above have arisen since the prior order was issued that a modification is necessary to serve the best interests of the children.” Although the court did not use the terms “material change in circumstances,” it is obvious from the court's analysis that it found a material change of circumstances had occurred. We are satisfied the court was not laboring under a misapprehension of the law and conclude its finding that a material change in circumstances had occurred is not clearly erroneous.

B

[¶ 15] Julie...