Krueger v. Hau Tran

Decision Date23 October 2012
Docket NumberNo. 20120152.,20120152.
Citation822 N.W.2d 44,2012 ND 227
PartiesShannon (Fried) KRUEGER, Plaintiff and Appellee v. HAU TRAN, Defendant and Appellant.
CourtNorth Dakota Supreme Court

822 N.W.2d 44
2012 ND 227

Shannon (Fried) KRUEGER, Plaintiff and Appellee
v.
HAU TRAN, Defendant and Appellant.

No. 20120152.

Supreme Court of North Dakota.

Oct. 23, 2012.


[822 N.W.2d 46]


Irvin B. Nodland, Bismarck, N.D., for plaintiff and appellee.

Carl L. Martineck, Valley City, N.D., for defendant and appellant.


KAPSNER, Justice.

[¶ 1] Hau Tran appeals from a district court order granting Shannon Krueger's motion to modify primary residential responsibility of their child. We affirm, concluding the court's decision to modify primary residential responsibility is not clearly erroneous.

I

[¶ 2] Tran and Krueger have one minor child together, who was born in 2001. Both parties allege the other abused drugs in the past. Both parties have drug convictions, and Krueger was incarcerated twice.

[¶ 3] In 2005, the district court entered a judgment giving Krueger physical custody of the child based on the parties' stipulation. In 2007, the parties agreed to modify custody of the child. The court entered an amended judgment based on the parties' stipulation, ordering Tran have physical custody of the child and Krueger have visitation. The amended judgment also ordered both parties to provide the other party with any change in residence, address, or telephone number within five days of the change. There was evidence that Krueger was facing possible incarceration when the amended judgment was entered, but she completed a long-term, in-patient drug treatment program instead.

[¶ 4] In 2008, Krueger moved to hold Tran in contempt, alleging he failed to comply with the amended judgment, he denied her visitation, he sent a text message to her cell phone advising her he was moving to Oregon with the child, and she was unable to locate Tran or the child. After a hearing, the district court entered an order finding Tran in contempt for failing to comply with the amended judgment by denying Krueger visitation and failing to give notice of his change of residence and telephone numbers. The court ordered Tran to serve sixty days in jail, with all of it conditionally suspended.

[¶ 5] On October 18, 2010, Krueger moved to modify primary residential responsibility. Krueger alleged her life had improved and she had not used drugs since she started drug treatment, the conditions in Tran's home were highly detrimental to the child's physical and emotional health, Tran was not taking proper care of the child, Tran was abusing drugs, Tran denied

[822 N.W.2d 47]

her access to the child, and Tran was very hostile toward her and made disparaging statements about her. A custody investigator was appointed.

[¶ 6] In December 2010, Tran petitioned for a disorderly conduct restraining order against Krueger. In a January 10, 2011, order, the district court denied Tran's petition and ordered the parties to:

not contact each other for any reason except as may be necessary to confirm exchange times and places for the child[ ] or to provide information to the other about matters related to the child's schooling, counseling, medical needs, or involvement with law enforcement other than as stated above. There shall be no contact between the two parties by any method for any other reason directly or indirectly through 3rd parties except through their respective counsel.

[¶ 7] On January 13, 2011, Krueger moved for an order to show cause and for contempt, alleging Tran failed to comply with ordered visitation. Krueger also requested the court temporarily grant her primary residential responsibility of the child. On February 25, 2011, Krueger filed an affidavit in support of her motions, alleging Tran was not complying with the January 10, 2011, order and was sending her harassing and inappropriate text messages. On August 22, 2011, Krueger renewed her motion for temporary primary residential responsibility. On September 14, 2011, the court entered an order denying Krueger's motion for an interim order, finding Krueger did not show that exceptional circumstances existed to justify an interim order for a change of residential responsibility. However, the court found:

2. Based on [Krueger's] affidavits, there are reasonable grounds to believe that Defendant Hau Tran is in contempt of previous court orders directing him to refrain from making abusive and/or derogatory communications to [Krueger].

3. Continuation of these abusive and derogatory communications by Defendant Hau Tran will constitute exceptional circumstances as defined by Rule 8.2(a)(1), in that they pose an imminent threat of psychological and emotional harm to the parties' minor child, and would necessitate an interim order to protect the child from further harm.

The court ordered Tran to comply with all previous court orders and limit communications with Krueger to matters reasonably necessary to accomplish visitation or to promote the child's welfare.


[¶ 8] On September 30, 2011, Krueger filed a motion for contempt, alleging Tran continued to send her harassing and derogatory text messages after the court's September 14, 2011, order. A hearing was held on October 31, 2011. On December 2, 2011, Krueger filed a motion for contempt, alleging Tran continued to send her derogatory text messages after the October hearing.

[¶ 9] On January 13, 2012, the district court granted Krueger's motion to modify primary residential responsibility after holding an evidentiary hearing. The court found there was a material change of circumstances, including a significant improvement in Krueger's life circumstances, accompanied by a general decline in the child's condition. The court also found Tran's lack of interaction with the child and his open hostility and contempt toward Krueger were detrimental to the child's emotional health. The court found modification was necessary to serve the child's best interests.

II

[¶ 10] Tran argues the district court's findings that there was a material change

[822 N.W.2d 48]

in circumstances and that a modification of residential responsibility was in the child's best interests are clearly erroneous.

[¶ 11] A district court's decision to modify residential responsibility is a finding of fact subject to the clearly erroneous standard of review. Stanhope v. Phillips–Stanhope, 2008 ND 61, ¶ 7, 747 N.W.2d 79. A finding is clearly erroneous if it is induced by an erroneous view of the law, there is no evidence to support it, or we are convinced, based on the entire record, that a mistake has been made. Id.

[¶ 12] Under N.D.C.C. § 14–09–06.6(6), a court may modify primary residential responsibility more than two years after a prior decision establishing primary residential responsibility, 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.

The party seeking modification has the burden of proving a change in residential responsibility is required. Vining v. Renton, 2012 ND 86, ¶ 14, 816 N.W.2d 63.


A

[¶ 13] A material change in circumstances is an important new fact that was not known at the time of the prior residential responsibility decision. Siewert v. Siewert, 2008 ND 221, ¶ 17, 758 N.W.2d 691. A party's conduct before the prior residential responsibility decision may be relevant if the prior decision was based on the parties' stipulation and the district court was unaware of the facts at the time of the stipulation. Schumacker v. Schumacker, 2011 ND 75, ¶ 11, 796 N.W.2d 636. Here, all of the prior residential responsibility decisions were based on the parties' stipulations. This is the first time the district court has decided a contested residential responsibility issue based on statutory requirements.

[¶ 14] “ ‘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.’ ” Siewert, 2008 ND 221, ¶ 17, 758 N.W.2d 691 (quoting Stanhope, 2008 ND 61, ¶ 6, 747 N.W.2d 79). A material change in circumstances can exist when one parent attempts to alienate a child's affection for the other parent, when parents are openly hostile towards each other and that hostility negatively affects the child, or when the noncustodial parent's situation improves accompanied by a general decline in the child's condition with the other parent over the same time period. Ehli v. Joyce, 2010 ND 199, ¶ 8, 789 N.W.2d 560;see also In re N.C.C., 2000 ND 129, ¶¶ 19–23, 612 N.W.2d 561.

[¶ 15] The district court found a material change in circumstances had occurred:

The Court finds [Krueger] has shown that a material change of circumstances has occurred, because the significant improvements in Ms. Krueger's life circumstances have been accompanied by a general decline in the child's condition. Specifically, based on [the child's] statements to the parenting investigator, Ms. Krueger's testimony, and Mr. Tran's text messages ... the Court finds that Mr. Tran often leaves [the child] alone, that she feels lonely, and that [the child] prefers to be with her mother because they spend lots of time doing things together. [The child] is a preadolescent girl who wants parental interaction and guidance; Mr. Tran appears preoccupied with his own needs, and indifferent

[822 N.W.2d 49]

to or perhaps unable to respond to [the child's] needs.

The Court finds that this lack of interaction, alongwith Mr. Tran's open hostility and contempt toward Ms. Krueger, is detrimental to [the child's] emotional health. A material change of circumstances can be found if the child's emotional health or development may be endangered in the present environment. Selzler v. Selzler, 2001 ND 138, ¶ 21, 631 N.W.2d 564. Mr. Tran's text messages alternate between unrequited love and unmitigated hatred of Ms. Krueger; based on his text messages, interviews with the parenting...

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