Hageman v. Hageman

• Decision Date: 26 February 2013
• Docket Number: No. 20120183.,20120183.
• Citation: 2013 ND 29,827 N.W.2d 23
• Parties: Nicholas David HAGEMAN, Plaintiff and Appellee v. Amber Dawn HAGEMAN, n/k/a Amber Dawn Sagert, Defendant and Appellant.
• Court: North Dakota Supreme Court

827 N.W.2d 23

2013 ND 29

Nicholas David HAGEMAN, Plaintiff and Appellee

v.Amber Dawn HAGEMAN, n/k/a Amber Dawn Sagert, Defendant and Appellant.

No. 20120183.

Supreme Court of North Dakota.

Feb. 26, 2013.

Kari R. Winning, Grand Forks, N.D., for plaintiff and appellee.

Deanna F. Longtin, Cavalier, N.D., for defendant and appellant.

VANDE WALLE, Chief Justice.

[¶ 1] Amber Hageman, now known as Amber Sagert, appealed from an amended divorce judgment modifying a prior judgment and granting Nick Hageman primary residential responsibility for their minor child. Because we conclude the district court did not clearly err in modifying the judgment and awarding Hageman primary residential responsibility of the child, we affirm.

I

[¶ 2] In May 2006, Hageman and Sagert were married, and they had one child in 2008, K.N.H. In August 2009, they were divorced under a stipulated judgment entered in Polk County, Minnesota. Under the stipulated judgment, the parties agreed they would share joint custody of K.N.H. under a rotating schedule in which K.N.H. would alternate equally between Sagert and Hageman on a two-day, two-day, three-day pattern. Hageman and Sagert specifically agreed it was in K.N.H.'s best interests to reside in the “Grand Forks, North Dakota/East Grand Forks, Minnesota area.” The stipulated judgment specifically allowed either party to bring a motion to modify residential responsibility of the child if either moved from the area:

5. RESIDENCE OF MINOR CHILD. The award of joint physical custody herein is contingent upon both parties' continued residence in the Grand Forks, ND/East Grand Forks, MN area. The parties agree it would best serve the minor child's best interests for the child to continue to live in the Grand Forks/East Grand Forks area until he reaches the age of eighteen (18) years. For that reason, the parties agree that if either party attempts to relocate outside of the Grand Forks/East Grand Forks area with the minor child, that proposed relocation will constitute a material change in circumstances allowing either party to file a motion for modification of custody.

(Emphasis added.)

[¶ 3] Both parties resided in the stipulated area until September 2010, when Sagert moved “approximately 75 miles” from Grand Forks to St. Thomas, North Dakota. Sagert moved to the home of Jordan Sagert, whom she subsequently married in June 2011. At the time of the hearing in this case, the Sagerts were also expecting their first child to be born in January 2012. Jordan Sagert owns a crop consulting business and hobby farm in the St. Thomas area. Amber Sagert works for the consulting business. Sagert has lived with her husband in St. Thomas since September 2010. Hageman continues to reside in Grand Forks, North Dakota. He remarried in February 2011. There is testimony the parties continued with the joint custody schedule with K.N.H.

[¶ 4] In February 2011, Sagert registered the Minnesota divorce judgment in North Dakota and moved to modify primary residential responsibility of the child based on her relocation. Hageman responded and also moved for primary residential responsibility of the child. After an evidentiary hearing on the parties' motions, the district court awarded Hageman primary residential responsibility of the child.

II

[¶ 5] A parent may move to modify primary residential responsibility under the framework provided in N.D.C.C. § 14–09–06.6. Haroldson v. Haroldson, 2012 ND 44, ¶ 6, 813 N.W.2d 539.Section 14–09–06.6, N.D.C.C., provides specified limitations on post-judgment modifications of primary residential responsibility, stating in relevant part:

1. Unless agreed to in writing by the parties, or if included in the parenting plan, no motion for an order to modify primary residential responsibility may be made earlier than two years after the date of entry of an order establishing primary residential responsibility, except in accordance with subsection 3.

....

7. The court may modify a prior order concerning primary residential responsibility at any time if the court finds a stipulated agreement by the parties to modify the order is in the best interest of the child.

8. Upon a motion to modify primary residential responsibility under this section, the burden of proof is on the moving party.

[¶ 6] In this case, the parties agreed that a material change occurred based on Sagert's relocation to the St. Thomas area, triggering the divorce judgment's provision allowing either party to file a motion to modify custody. The district court found the physical distance between the parties' current residences made the earlier stipulated arrangement “totally impractical, if not impossible.” Based on the divorce judgment's provision allowing a judicial review and, if necessary, a redetermination of parent responsibilities and parenting time, the court moved directly to consideration of the best interest factors under N.D.C.C. § 14–09–06.2.

[¶ 7] To modify primary residential responsibility the district court must find a modification is necessary to serve the child's best interests. See State v. Neustel, 2010 ND 216, ¶ 12, 790 N.W.2d 476. The court must decide which parent will “better promote the [child's] best interests and welfare.” Marsden v. Koop, 2010 ND 196, ¶ 9, 789 N.W.2d 531. In awarding primary residential responsibility, the court considers the best interest factors under N.D.C.C. § 14–09–06.2(1):

a. The love, affection, and other emotional ties existing between the parents and child and the ability of each parent to provide the child with nurture, love, affection, and guidance.

b. The ability of each parent to assure that the child receives adequate food, clothing, shelter, medical care, and a safe environment.

c. The child's developmental needs and the ability of each parent to meet those needs, both in the present and in the future.

d. The sufficiency and stability of each parent's home environment, the impact of extended family, the length of time the child has lived in each parent's home, and the desirability of maintaining continuity in the child's home and community.

e. The willingness and ability of each parent to facilitate and encourage a close and continuing relationship between the other parent and the child.

f. The moral fitness of the parents, as that fitness impacts the child.

g. The mental and physical health of the parents, as that health impacts the child.

h. The home, school, and community records of the child and the potential effect of any change.

i. If the court finds by clear and convincing evidence that a child is of sufficient maturity to make a sound judgment, the court may give substantial weight to the preference of the mature child....

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....

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 parental rights and responsibilities dispute.

N.D.C.C. § 14–09–06.2(1)(a)–(m).

[¶ 8] The district court's decision to modify primary residential responsibility is a finding of fact, subject to the clearly erroneous standard of review. Vining v. Renton, 2012 ND 86, ¶ 15, 816 N.W.2d 63. 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. “In applying the clearly erroneous standard, we will not reweigh evidence, reassess witness credibility, retry a custody case, or substitute our judgment for the trial court's decision merely because this Court may have reached a different result.” Hammeren v. Hammeren, 2012 ND 225, ¶ 8, 823 N.W.2d 482. “A choice between two permissible views of the weight of the evidence is not clearly erroneous.” Id. “[O]ur deferential review is especially applicable for a difficult primary residential responsibility decision involving two fit parents.” Id. (quotations omitted).

[¶ 9] Here, in awarding Hageman primary residential responsibility, the district court considered each of the statutory factors in N.D.C.C. § 14–09–06.2 and found factors (a), (b), (c), (d), (e), (h), and (k) favored neither party. The court further found factors (f), (g), (i), (j), and ( l ) were not relevant. The court, however, found factor (m) favored Hageman, stating the parties had previously agreed in the stipulated judgment that the interests of the child would be met by continuing to reside in the immediate Grand Forks area.

III

[¶ 10] Sagert argues the district court erred in deciding she had not provided sufficient evidence to grant her primary residential responsibility because the court failed to adequately consider the evidence presented. She asserts the evidence in the record shows she has been K.N.H.'s primary caregiver since birth, she would provide a stable and loving home environment conducive to K.N.H.'s development, K.N.H. would not need daycare on a regular basis, and K.N.H. would grow and develop a strong, loving relationship with a new sibling. Sagert argues the court clearly erred in its findings under factors (a), (b), (c), (d), (k), and (m), which she contends should favor her.

A

[¶ 11] Under factor (a), the love, affection, and other emotional ties between the parents and child, Sagert argues the district court clearly erred in finding this factor favored neither party because the court failed to make sufficient findings based on the evidence in the record.

[¶ 12] Sagert contends, even though the parties had joint primary residential responsibility, most of her parenting time was spent exclusively with K.N.H. when the child...