Haag v. Haag, 20150193.
| Court | United States State Supreme Court of North Dakota |
| Citation | 875 N.W.2d 539 |
| Docket Number | No. 20150193.,20150193. |
| Parties | Heather J. HAAG, Plaintiff and Appellant v. Michael HAAG, Defendant and Appellee and State of North Dakota, Statutory Real Party In Interest. |
| Decision Date | 18 February 2016 |
875 N.W.2d 539
Heather J. HAAG, Plaintiff and Appellant
v.
Michael HAAG, Defendant and Appellee
and
State of North Dakota, Statutory Real Party In Interest.
No. 20150193.
Supreme Court of North Dakota.
Feb. 18, 2016.
Suzanne M. Schweigert (argued) and Leah R. Carlson (appeared), Bismarck, N.D., for plaintiff and appellant.
Rodney E. Pagel, Bismarck, N.D., for defendant and appellee.
VANDE WALLE, Chief Justice.
I
[¶ 2] Heather Haag and Michael Haag were married in 2000 and have one minor child together. The parties divorced in 2009, and the district court adopted the parties' stipulation and ordered the parties have equal residential responsibility of the child.
[¶ 3] On October 16, 2014, Heather Haag moved to modify primary residential responsibility of the child, parenting time, and child support. She also moved for an ex parte interim order and filed a supporting affidavit and exhibits. She alleged Michael Haag has a long history of using alcohol and drugs, he was arrested for cocaine possession in August 2014, and he was convicted of boating under the influence of alcohol in 2009. She also alleged Michael Haag physically abused her during the marriage and the child witnessed the abuse.
[¶ 4] The district court granted Heather Haag's motion for an ex parte interim order, and ordered Michael Haag have supervised parenting time two times per week for two hours each visit. The court also found Heather Haag established a prima facie case justifying modification and ordered an evidentiary hearing be held.
[¶ 5] After a hearing, the district court denied Heather Haag's motion to modify primary residential responsibility, parenting time, and child support. The court found most of the evidence Heather Haag presented focused on Michael Haag's pre-divorce drug and alcohol use and abusive behavior. The court found Michael Haag was physically and emotionally abusive to Heather Haag before the divorce, he has serious problems with drugs and alcohol, and the parties knew about these problems before the divorce. The court, therefore, concluded Heather Haag did not prove a material change in circumstances, and it did not consider the best interest factors to determine whether modification was in the child's best interests.
II
[¶ 6] Heather Haag argues the district court erred by finding she did not prove a material change in circumstances. She claims Michael Haag's alcohol and drug use, his criminal history, his history of committing domestic violence, and the improvements in her life accompanied by a general decline in the child's condition are material changes in circumstance.
[¶ 7] The district court's decision whether to modify primary residential responsibility is a finding of fact, which will not be reversed on appeal unless it is clearly erroneous. Regan v. Lervold, 2014 ND 56, ¶ 15, 844 N.W.2d 576. A finding of fact is clearly erroneous if it is induced by an erroneous view of the law, there is no evidence to support it, or if this Court is convinced, on the basis of the entire record, that a mistake has been made. Id.
[¶ 8] The district court may modify primary residential responsibility more
[875 N.W.2d 542
than two years after entry of the prior 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 interests of the child.
N.D.C.C. § 14–09–06.6(6). The moving party has the burden of proving a material change in circumstances and modification is necessary to serve the child's best interests. Dunn v. Dunn, 2009 ND 193, ¶ 8, 775 N.W.2d 486.
[¶ 9] A material change in circumstances is "an important new fact that was not known at the time of the prior custody decree." Lechler v. Lechler, 2010 ND 158, ¶ 9, 786 N.W.2d 733 (quoting Siewert v. Siewert, 2008 ND 221, ¶ 17, 758 N.W.2d 691 ). We have rejected the argument that a material...
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