Klose v. Klose, 940112

• Decision Date: 16 November 1994
• Docket Number: No. 940112,940112
• Citation: 524 N.W.2d 94
• Parties: Susan KLOSE, Plaintiff and Appellee, v. Richard KLOSE, Defendant and Appellant. Civ.
• Court: North Dakota Supreme Court

Page 94

524 N.W.2d 94

Susan KLOSE, Plaintiff and Appellee, v. Richard KLOSE, Defendant and Appellant.

Civ. No. 940112.

Supreme Court of North Dakota.

Nov. 16, 1994.

Randall L. Hoffman (argued), of Paulson and Merrick, Jamestown, for plaintiff and appellee.

James A. Reisnour (argued), of Mackenzie, Jungroth, Mackenzie & Reisnour, Jamestown, for defendant and appellant.

NEUMANN, Justice.

Richard Klose appeals from an amended judgment denying his motion for a change of custody. We affirm.

During their marriage, Richard and Susan Klose lived with their two children, Nolan and Ashley, on a farm south of Jamestown. In October 1989 Susan moved with the children to Jamestown. Richard remained on the farmstead, where he earns his living as a farmer/rancher.

Richard and Susan were divorced in December 1992, in uncontested proceedings based upon a stipulated agreement. Under the original decree the parties retained joint legal custody of the children, but Susan received primary physical custody with liberal visitation privileges for Richard. The decree contained a provision dealing with the future possibility of Susan wanting to move with the children from Jamestown:

"At a time 45 days prior to [Susan's] intent to have the children reside outside of Stutsman County, North Dakota on a permanent basis, [Susan] shall advise [Richard] of her intention so that [Richard] may seek a judicial determination to decide whether the children should be allowed to reside outside of Stutsman County, North Dakota."

On November 15, 1993, Susan advised Richard that she intended to move with the children to Bismarck, which is located in Burleigh County approximately 100 miles from Jamestown. Susan accepted a job with the Workers Compensation Bureau to begin in January 1994, and she completed her move to Bismarck on December 18, 1993. Nolan remained in Jamestown to reside with his father for the remainder of the 1993 school year. On December 13, 1993, Richard filed a motion asking the court to amend the divorce judgment "relative to child support, income tax dependents, primary physical custody and visitation." The trial court concluded Richard did not show there had been a significant change of circumstances since the original decree and denied Richard's request for a change of custody. Richard appealed, raising as an issue only the denial of a custody change.

In Gould v. Miller, 488 N.W.2d 42, 43 (N.D.1992), we summarized the procedure a trial court must use in deciding a request for a change of custody:

"For an original placement of the custody of a child, when parents divorce, the trial court needs to determine only the best interests and welfare of the child.... For a motion to modify an original custodial placement, the trial court needs to make a two-step analysis. First, the court must determine whether there has been any significant change in circumstance since the original placement.... If the court finds a significant change in circumstance, it must then consider whether the change compels a custodial change for the best interests of the child.... The parent seeking to modify custody has the burden of showing both that a circumstance changed significantly and that this change so adversely affected the child that custody should be changed." (Citations omitted.)

The trial court's decision on a request to change custody is a finding of fact which will not be set aside on appeal unless it is clearly erroneous under Rule 52(a), N.D.R.Civ.P. Mertz v. Mertz, 439 N.W.2d 94 (N.D.1989). A finding of fact is clearly erroneous if it is induced by an erroneous view of the law, if there is no evidence to support it, or if, although there is some evidence to support it, the reviewing court is left with a definite and firm conviction that a mistake has been made. Barstad v. Barstad, 499 N.W.2d 584 (N.D.1993).

Richard asserts that the provision in the original decree requiring Susan to notify him of an intended move outside Stutsman County should be construed as "waiving" the need for Richard to establish a significant change in circumstances for a change of custody. Richard did not argue this issue to the trial court. Furthermore, Richard's motion to amend the judgment expressly alleged that there was a significant change of circumstances requiring a change of custody. The change of circumstances question was litigated throughout the proceedings, without objection by Richard. Issues not raised before the trial court cannot be raised for the first time on appeal. DeVore v. DeVore, 393 N.W.2d 739 (N.D.1986). The purpose of this rule is to prevent a party from inviting error upon the trial court and then seeking to prevail upon appellate review of the invited error. Carlson v. Farmers Ins., 492 N.W.2d 579 (N.D.1992). Richard has waived this issue, and we will not further address it in this appeal.

Richard asserts the trial court erred in refusing to consider Nolan's preference to reside with Richard in determining whether there had been a significant change of circumstances. During the original proceedings, Nolan did not state a preference regarding his custody. At the proceedings on Richard's motion for a change of custody Nolan, age 14, and Ashley, age 8, discussed the custody issue with the court in...