Holtz v. Holtz

• Decision Date: 18 June 1999
• Docket Number: No. 980261,980261
• Citation: 595 N.W.2d 1
• Parties: April Jeanne HOLTZ, Plaintiff and Appellant, v. James Floyd HOLTZ, Defendant and Appellee.
• Court: North Dakota Supreme Court

Page 1

595 N.W.2d 1

1999 ND 105

April Jeanne HOLTZ, Plaintiff and Appellant, v. James Floyd HOLTZ, Defendant and Appellee.

No. 980261.

Supreme Court of North Dakota.

June 18, 1999.

Paul C. Murphy (argued) and Marina Spahr (appearance), Murphy & Spahr Law Office, PC, Carrington, for plaintiff and appellant.

Neil Thompson, Thompson & Thompson, Devils Lake, for defendant and appellee.

VANDE WALLE, Chief Justice.

¶1 April Jeanne Holtz appealed from a judgment changing the custody of her daughter, Jessica, to the child's father, James Floyd Holtz. We conclude the trial court's findings there was a material change of circumstances since the parties' divorce which required, in the best interests of Jessica, a change of custody, and James rebutted the presumption against custody arising from past acts of domestic violence, are not clearly erroneous. We affirm.

I

¶2 April and James married in 1988 at Reno, Nevada. Jessica was born November 12, 1990. The parties lived in California and Texas during their somewhat tumultuous and abusive marriage. When the parties separated in the fall of 1993, April and Jessica moved to Harvey, North Dakota, where April's mother lived. The couple was divorced by a North Dakota court in July 1994. James was served with the divorce papers while living in California, but made no appearance, claiming he could not afford to travel to North Dakota to contest the divorce. The court awarded April "sole and exclusive custody" of Jessica and reserved ruling on James's visitation rights until James applied to the court for visitation privileges. James was also ordered to pay child support.

¶3 April, age 29 at the time of trial, is a high school graduate, but has a learning disability, is developmentally disabled, and was described as having below normal intelligence. A parent aide from Wells County Social Services spends about three or four hours per week with April to help her keep her two-bedroom apartment in Harvey in an orderly condition. April is not employed, but receives Supplemental Security Income payments for her disability, Aid to Families with Dependent Children payments, food stamps, medical assistance and rent subsidy payments. Jessica is a first grade student.

¶4 James, age 31 at the time of trial, was described as being of average intelligence. He has been employed as an over-the-road trucker, but at the time of trial was working as a cab driver in Fresno, California. He has lived for two years in a three-bedroom apartment in Fresno with a married couple and their two minor children. James has had very little contact with Jessica since the divorce. He occasionally contacted the Wells County Social Services office expressing his desire to relinquish his parental rights because he was frustrated over continually being denied contact with the child. James's only visitation with Jessica occurred at the Social Services office. James, however, sent numerous letters to Jessica through the Social Services office because he was concerned Jessica would not see them if he sent them to her home address.

¶5 In April 1997, James made a motion to establish a visitation schedule, or in the alternative, to change custody of Jessica. James alleged April had previously frustrated his attempts at visitation with Jessica, and April "is not mentally capable of growing with the child so she could be far enough ahead of the child to be able to handle the child's mental needs as far as growing up and progressing without substantial assistance."

¶6 A court-appointed guardian ad litem (GAL) evaluated the situation and recommended that custody of Jessica be changed from April to James. The GAL reported she did not find April "credible" during their conversations, that April relied on Jessica to assist her in dealing with unknown persons and unfamiliar circumstances, and that "Jessica frequently speaks up for her mother and explains things to her." Noting April's "ineffectiveness in parenting," the GAL said she could not "condone leaving a seven year old child in a home to care for her developmentally disabled mother." The GAL also noted James's "unique living arrangements," but said she was "convinced that if James[ ] were awarded custody of Jessica that she would be warmly absorbed into this less than conventional family unit." The GAL recommended a schedule for transfer of custody, that April be awarded reasonable visitation and be required to pay child support, that James be required to enroll in and complete parenting and anger management classes, that April be encouraged to continue to work on her parenting skills, and that James have Jessica evaluated for possible learning disabilities.

¶7 Both parties, the GAL, and several other persons testified at the hearing. However, April either refused to respond to, or gave inaudible responses to, the vast majority of the questions posed to her by the court and the attorneys. The trial court found "a material change in circumstances based upon [April's] mental incapacity to develop as ... Jessica ... grows older and develops in her own right. Therefore, [April] would not be capable or competent to raise the minor child...." The court also found the best interests of Jessica would be served by changing custody to James. April appealed.

II

¶8 April contends the trial court erred in granting James's motion for change of custody.

¶9 For cases decided after August 1, 1997, motions to modify custody are governed by statute. See Hill v. Weber, 1999 ND 74, p 9, 592 N.W.2d 585. N.D.C.C. § 14-09-06.6 provides in pertinent part:

6. The court may modify a prior custody order after the two-year period following the date of entry of an order establishing custody 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.

....

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

¶10 This part of the statutory formulation essentially tracks the two-step approach previously used by this Court for deciding a change of custody case. While the best interests and welfare of the child are the sole concerns in an original custodial placement, e.g., Dinius v. Dinius, 1997 ND 115, p 11, 564 N.W.2d 300, to modify child custody a court must consider whether there is a significant change of circumstances since the original custody decree, and if so, whether this change compels or requires the court to change custody to serve the best interests of the child. E.g., State ex rel. Melling v. Ness, 1999 ND 73, p 27, 592 N.W.2d 565. A district court's decision to modify custody is a finding of fact subject to the clearly erroneous standard of review under N.D.R.Civ.P. 52(a). Gietzen v. Gietzen, 1998 ND 70, p 8, 575 N.W.2d 924. A finding of fact is clearly erroneous only if it is induced by an erroneous view of the law, if no evidence exists to support it, or if, upon review of the entire evidence, we are left with a definite and firm conviction that a mistake has been made. Sumra v. Sumra, 1997 ND 62, p 8, 561 N.W.2d 290.

A

¶11 The trial court found a "material change in circumstances based upon [April's] mental incapacity to develop as ... Jessica ... grows older and develops in her own right." We conclude the trial court's finding of a material change in circumstances is not clearly erroneous.

¶12 Although there is no expert medical evidence in the record establishing the parameters of April's developmental disability at the time of the divorce or at the time of the custody hearing, there is abundant evidence showing that April was simply no longer able to effectively care for Jessica because of April's mental limitations. April has dyslexia, a learning disability, a low IQ, and is developmentally disabled. April's parent aide helps her "with many of the basic tasks that she needs to do from day to day." The parent aide helps with home management, writes most of April's checks, helps her balance the checkbook, and informs her "about the developmental stages of children at certain levels and what behaviors are normal." April's parent aide had worked with April for more than three years and testified that, without the assistance given to April, she and Jessica could not function as a family unit because April is not mentally capable of doing things by herself.

¶13 The parent aide testified April is very withdrawn and needs help with socializing, but has refused to go to group therapy sessions to try and remedy the situation. When Jessica interacts with her mother, according to the parent aide, Jessica acts "childish" and "whiny," a lower level of maturity she exhibits while interacting with other children as well. Jessica is also hyperactive at school, and because of her immaturity and extreme difficulty with some subjects, the school planned to have her repeat the first grade. The parent aide also testified she sometimes worries about Jessica eventually having to take care of April. When the GAL asked a social worker how long the parent aide would be available to assist April, "he stated that a decision had not been made on when to terminate the assistance but that the 'team' had commented that at some point the child would start to take care of the mother and they could then pull the parent aide out of the home at that time."

¶14 The GAL testified she found "[v]ery little" credibility with April, and believed April gave answers April thought she wanted to hear. The GAL was also concerned Jessica may have a learning disability. The GAL discussed her concerns with April, but April said Jessica did well in school and did not think there was a problem. Administrators at Jessica's school informed the GAL they also thought Jessica may have a learning disability, and the GAL made...