Kelly v. Kelly, 20010165.

• Citation: 640 N.W.2d 38,2002 ND 37
• Decision Date: 21 February 2002
• Docket Number: No. 20010165.,20010165.
• Parties: Delmer T. KELLY, Plaintiff and Appellee, v. Susan C. KELLY, Defendant and Appellant.
• Court: United States State Supreme Court of North Dakota

640 N.W.2d 38

2002 ND 37

Delmer T. KELLY, Plaintiff and Appellee, v. Susan C. KELLY, Defendant and Appellant.

No. 20010165.

Supreme Court of North Dakota.

February 21, 2002.

Todd L. Cresap of Kenner Sturdevant Peterson & Cresap, PC, Minot, for plaintiff and appellee.

Jeff L. Nehring of Nilles, Hansen & Davies, Ltd., Williston, for defendant and appellant.

SANDSTROM, Justice.

[¶ 1] Susan Kelly appealed from a Northwest Judicial District Court order granting Delmer Kelly's motion for a change of custody of their two daughters. We affirm, concluding the district court did not err in changing custody.

I

[¶ 2] Delmer and Susan Kelly were divorced in November of 1997. They resolved all matters in the divorce by a stipulation. At the time of the divorce, Susan Kelly was awarded sole custody of the couple's two daughters. No child support was ordered. In late 2000, the Ward County Regional Child Support Enforcement Unit sought to establish a child support order. In January 2001, Delmer Kelly filed a motion for change of custody, alleging a substantial change of circumstances had occurred and a change of custody was necessary to serve the best interests of the children.

[¶ 3] At the custody hearing, Susan Kelly testified she had suffered a total of five strokes between 1996 and 1998. She testified a friend and co-worker had cared for her daughters during the times she had been unable to care for them. She also testified she had asked Delmer Kelly to take the children while she was ill, but he declined. She further testified her friend had cared for the girls for a total of twelve months throughout the period of her health problems.

[¶ 4] Susan Kelly testified she and the children had moved several times since the separation and divorce. She had moved to Minot, North Dakota, to pursue a masters degree in music. She then moved to Colorado for a job opportunity. She then moved back to Minot and then to Bowman, North Dakota. She left Bowman and moved to Westhope, North Dakota. Next, she moved to Fargo, North Dakota. While living in Fargo, she moved twice. She testified she has resided in Lignite, North Dakota, since 1999 with a man to whom she is not married. She testified the two children accompanied her in each of the moves, which took place between 1996 and 2000.

[¶ 5] The girls testified their mother had entered into several transitional relationships prior to her current relationship. The girls testified their mother would bring her male companions home for overnight visits. The younger daughter testified she and her sister had personally observed their mother in bed with an overnight guest. The younger daughter also testified to the names and physical descriptions of her mother's overnight guests.

[¶ 6] Delmer Kelly testified he completed his education after the divorce, moved to Fargo, and went to work for the Veteran's Administration. In July of 1999, he married Lori Kelly, who has four children from a previous marriage. Lori Kelly testified her children live with their father and she has visitation every other weekend and for extended periods during summer vacations and school holidays.

[¶ 7] He also testified that for approximately five months during the time Susan Kelly lived in Fargo, the girls stayed with him and his wife. He testified the girls were enrolled and attended school in Fargo during this period. Susan Kelly testified a member of Lori Kelly's family was accused of inappropriate sexual conduct toward the girls while they were staying with their father. Lori Kelly testified a police investigation took place, but it revealed insufficient evidence and no further action was taken by the police. She also testified that since this incident, her family member is no longer allowed to visit their home.

[¶ 8] Delmer Kelly testified he has had sporadic contact with his daughters since the separation and divorce. He testified the girls informed him of their moves after the fact. Susan Kelly testified her former husband had come to visit the children only once and had never exercised his summer visitation privileges. Delmer Kelly testified he had contact with the children when they were living in Westhope and Minot, and the older daughter testified he exercised two-and-a-half weeks of visitation with her in the summer of 2000. Delmer Kelly also testified he kept in contact with his daughters through e-mail and telephone calls.

[¶ 9] After the incident with Lori Kelly's family member, Donna Norrie, an employee of Burke County Social Services, was assigned to contact Susan Kelly and the girls. Norrie testified the man Susan Kelly is living with is a stabilizing factor in the children's home. Norrie also testified the children were well-dressed and active in extracurricular activities at school. She also testified the children wanted to continue living with their mother.

[¶ 10] During the custody hearing, the district court heard from both the girls, ages fifteen and twelve, in chambers, out of the presence of their parents. The district court found the older daughter was a "bright, articulate, 15-year old who did not hide her strong desire to live with her father." The district court also stated it found her "to be a particularly credible witness."

[¶ 11] The district court found a material change in circumstances, and found a change in custody was necessary to serve the best interests of the children. [¶ 12] The district court has 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

[¶ 13] A district court's decision whether to change custody is a finding of fact subject to the clearly erroneous standard of review. 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. N.D.R.Civ.P. 52(a); Mosbrucker v. Mosbrucker, 1997 ND 72, ¶ 5, 562 N.W.2d 390.

[¶ 14] The test for changing the custody of a child is set forth in 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 circumstances of the child or the parties; and

b. The modification is necessary to serve the best interest of the child.

[¶ 15] First, in deciding whether to change custody, a court must consider whether there has been a material change of circumstances since the original custody decree. N.D.C.C. § 14-09-06.6(6)(a). Second, if the court decides there has been a material change in circumstances, it must decide whether a change in custody is necessary to serve the best interests of the child. N.D.C.C. § 14-09-06.6(6)(b).

[¶ 16] As we have stated, the use of "necessary" in the codification of the second step of the two-step test did not signal a departure from the standard embodied in our case law. Holtz v. Holtz, 1999 ND 105, ¶ 10, 595 N.W.2d 1 ("This part of the statutory formulation essentially tracks the two-step approach previously used by this Court for deciding a change of custody case.") Since N.D.C.C. § 14-09-06.6(6) became effective, we have continued to reference our prior case law, and we have sometimes substituted "require" or "compel" for the statutory language of "necessary" when reciting the second step of the test. See, e.g., Selzler v. Selzler, 2001 ND 138, ¶ 21, 631 N.W.2d 564

; Mayo v. Mayo, 2000 ND 204, ¶ 14, 619 N.W.2d 631; O'Neill v. O'Neill, 2000 ND 200, ¶ 4, 619 N.W.2d 855; Anderson v. Resler, 2000 ND 183, ¶ 8, 618 N.W.2d 480; In re K.M.G., 2000 ND 50, ¶ 4, 607 N.W.2d 248; Hendrickson v. Hendrickson, 2000 ND 1, ¶ 16, 603 N.W.2d 896; Myers v. Myers, 1999 ND 194, ¶ 6, 601 N.W.2d 264; Holtz v. Holtz, 1999 ND 105, ¶¶ 9-10, 595 N.W.2d 1; Ramstad v. Biewer, 1999 ND 23, ¶ 11, 589 N.W.2d 905; Gietzen v. Gietzen, 1998 ND 70, ¶ 8, 575 N.W.2d 924.

A

[¶ 17] A material change of circumstances would be important new facts that were unknown at the time of the prior custodial decree.¹Selzler, 2001 ND 138, ¶ 21,631 N.W.2d 564; Mayo, 2000 ND 204, ¶ 16, 619 N.W.2d 631; In re N.C.C., 2000 ND 129, ¶ 18, 612 N.W.2d 561. "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." Selzler, at ¶ 21. The party seeking a modification of the custody order bears the burden of proof. N.D.C.C. § 14-09-06.6(8).

[¶ 18] The district court found the following material changes in circumstances:

That since the time of the granting of the divorce judgment in this matter, numerous changes constituting a significant change in circumstances has occurred. Those changes include, but are not limited to the following:

A. The Plaintiff, Delmer T. Kelly, has changed residence to Fargo, North Dakota and has remarried.

B. The Plaintiff, Delmer T. Kelly, is no longer a student, is no longer on disability, and has full-time employment with the Veterans Administration.

C. The residence of the minor children... has changed on a number of occasions.

D. The children have gotten to an age where they are able to articulate their preference concerning custody issues to the Court.

[¶ 19] The relocation of a parent and a change of a child's preference may constitute a significant change of circumstances. Gietzen v. Gietzen, 1998 ND 70, ¶ 10, 575 N.W.2d 924 (a custodial parent's decision to move may be viewed as a significant change of circumstances and a mature child's preference may be particularly significant in determining whether there has been a significant change of circumstances); Mosbrucker v. Mosbrucker, 1997 ND 72, ¶ 10, 562 N.W.2d 390 (a...