In re Thompson, 20020255.

• Court: United States State Supreme Court of North Dakota
• Writing for the Court: SANDSTROM, Justice.
• Citation: 2003 ND 61,659 N.W.2d 864
• Parties: In the Interest of the Minor Child, Cheyanne THOMPSON. James Dennis Lanners, a/k/a Jim Lanners, individually, Plaintiff and Appellant, and Cheyanne Thompson, a minor child, by and through her Guardian Ad Litem, Plaintiff, v. Diana Johnson, f/k/a Diana Thompson, Douglas Thompson, and Debra Thompson, Defendants and Appellees.
• Docket Number: No. 20020255.,20020255.
• Decision Date: 15 April 2003

659 N.W.2d 864
2003 ND 61

In the Interest of the Minor Child, Cheyanne THOMPSON.
James Dennis Lanners, a/k/a Jim Lanners, individually, Plaintiff and Appellant, and
Cheyanne Thompson, a minor child, by and through her Guardian Ad Litem, Plaintiff,
v.
Diana Johnson, f/k/a Diana Thompson, Douglas Thompson, and Debra Thompson, Defendants and Appellees

No. 20020255.

Supreme Court of North Dakota.

April 15, 2003.

659 N.W.2d 865

Kelly Ann Dillon, Minot, for plaintiff and appellant

Frederick J. Hofman, Hofman Law Office, Wolf Point, MT, for defendants and appellees.

SANDSTROM, Justice.

[¶ 1] James Dennis Lanners appeals from a Northwest Judicial District Court order denying his motion to amend a child custody judgment. Lanners argues he established a prima facie case under N.D.C.C. § 14-09-06.6(4) and the district court erred in denying him his right to an evidentiary hearing. We reverse and remand the district court's denial of his motion to amend.

I

[¶ 2] James Lanners and Diana Johnson are the parents of a minor child born in February 1990. Douglas and Debra Thompson are the child's maternal grandparents and present legal custodians. The maternal grandparents have cared for their granddaughter all of her life and were granted legal custody of the child on August 27, 1998, under a court-approved agreement between the parents and grandparents. On June 28, 2001, Lanners, the father, seeking custody of the child, moved for an amended judgment of the original custody order, a temporary order for custody in his immediate favor, and a contempt order on the grandparents for failing to abide by the visitation order. On August 22, 2001, the district court denied the father's requested interim relief for temporary custody, finding no existing change of circumstance or danger to the child that would require an immediate transfer of custody. In the same order, the district court held the grandparents in

659 N.W.2d 866

contempt of court for a violation of the original visitation order after they failed to deliver the child to the father on his scheduled weekend. The district court did not impose any penalties on the grandparents for the contempt citation. In their response to the father's motions, the grandparents argued that North Dakota Century Code section 14-09-06.6, establishing the prima facie case required before a court can modify custody, applies to this case and the father had not met his burden of establishing the material change in circumstances required under the statute. On April 1, 2002, the district court asked the parties to research whether North Dakota Century Code section 14-09-06.6 applies to a case such as this, in which the parent is seeking a modification of custody from a non-parent. On September 7, 2001, Johnson, the mother, filed a cross-motion for custody. On July 15, 2002, the district court, without holding a hearing, concluded that section 14-09-06.6, N.D.C.C., applies to this case, and denied the father's motion for amended judgment, finding he had not demonstrated a material change in circumstances that compelled a modification of custody

[¶ 3] The district court had jurisdiction under N.D.C.C. § 27-05-06. This Court has jurisdiction under N.D. Const. art. VI, § 6, and N.D.C.C. § 28-27-01.

II

[¶ 4] Lanners, the father, argues the district court erred in denying his motion to amend the custody order. "A district court's decision whether to change custody is a finding of fact subject to the clearly erroneous standard of review." Kelly v. Kelly, 2002 ND 37, ¶ 13, 640 N.W.2d 38 (citing Anderson v. Resler, 2000 ND 183, ¶ 8, 618 N.W.2d 480). "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. (citing N.D.R. Civ.P. 52(a)).

A

[¶ 5] The factors that must be met before the court may modify an existing child custody order are set forth under N.D.C.C. § 14-09-06.6(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

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