Kunz v. Slappy

• Decision Date: 14 October 2021
• Docket Number: No. 20200352,20200352
• Citation: 965 N.W.2d 408
• Parties: Nicole M. KUNZ f/k/a Nicole M. Slappy, Plaintiff, Appellant, and Cross-Appellee v. Jermece SLAPPY, Defendant, Appellee, and Cross-Appellant and State of North Dakota, Real Party in Interest
• Court: North Dakota Supreme Court

965 N.W.2d 408

Nicole M. KUNZ f/k/a Nicole M. Slappy, Plaintiff, Appellant, and Cross-Appellee

v. Jermece SLAPPY, Defendant, Appellee, and Cross-AppellantandState of North Dakota, Real Party in Interest

No. 20200352

Supreme Court of North Dakota.

FILED OCTOBER 14, 2021

Rodney E. Pagel, Bismarck, ND, for plaintiff, appellant, and cross-appellee.

Aaron D. Pulanco (argued) and Joshua L. Weatherspoon (on brief), Bismarck, ND, for defendant, appellee, and cross-appellant.

Jensen, Chief Justice.

[¶1] Nicole Slappy, now known as Nicole Kunz, appeals from a third amended judgment modifying her primary residential responsibility for the parties’ minor child, M.S., and granting Jermece Slappy equal residential responsibility. Kunz argues the district court erred in finding a material change in circumstances, erred in modifying the existing residential responsibility in the absence of a general decline in the child's condition, and erred in its analysis of the best interest factors. Slappy cross-appeals, arguing the district court improperly calculated his child support obligation. We reverse.

I

[¶2] Kunz and Slappy were divorced in 2013 and are the parents of one child. At the time of their divorce, the parties agreed Kunz would have primary residential responsibility of the parties’ child. The initial residential responsibility arrangement has not previously been amended and the pending proceedings are the first request to modify the existing arrangement.

[¶3] In May 2020, Slappy moved to modify the existing residential responsibility seeking a change in primary residential responsibility to establish equal parenting time. Kunz did not respond and the district court found Slappy had established a prima facie case for modification of primary residential responsibility. An evidentiary hearing on the motion for modification of parenting responsibility was held in September 2020.

[¶4] Following the evidentiary hearing, the district court found changes to Slappy's work schedule allowing him to spend more parenting time with M.S. was a material change of circumstances. Although the court did not decide whether the parties had been exercising equal parenting time as asserted by Slappy, the court did find Slappy's exercise of "substantially more parenting time" than included within the existing parenting time schedule supported a finding of a material change in circumstances. The court did not make any findings indicating the change in circumstances had adversely affected the child or indicating there had been a general decline in the child's condition.

[¶5] Having determined a material change in circumstances had occurred, the district court weighed the best interest factors provided by N.D.C.C. § 14-09-06.2, finding two factors favored Kunz and two factors favored Slappy. The remaining factors were found not to apply or were weighed evenly by the court. Based on its findings on the individual factors, the court found "the factors balance in favor of awarding the parties equal residential responsibility." The court granted Slappy's motion to modify the existing arrangement, and ordered equal residential responsibility for the child.

[¶6] The district court's order granting the modification of the existing residential responsibility left open the issue of child support. The court requested the parties attempt to agree upon the appropriate amount of child support and, if unable to agree, submit calculations consistent with equal residential responsibility.

[¶7] The parties were unable to agree on the appropriate amount of child support. After the submission of proposed child support calculations which included financial information not previously offered during the evidentiary hearing, the district court entered an order for child support. The court's computation of the child support obligation included references to financial information provided to the court after the evidentiary hearing, did not include other potentially relevant financial information provided after the evidentiary hearing, and relied in part on Slappy's testimony about his self-employment income provided during the evidentiary hearing.

II

[¶8] A district court's decision to grant or deny a motion for a change of residential responsibility is subject to a clearly erroneous standard of review.

Krueger v. Tran , 2012 ND 227, ¶ 11, 822 N.W.2d 44 (citing 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." Krueger , at ¶ 11 (citing Stanhope , at ¶ 7 ).

[¶9] The district court may modify the primary residential responsibility after the two-year period following the date of entry of an order 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 interests of the child.

N.D.C.C. § 14-09-06.6(6).

III

[¶10] Section 14-09-06.6(6)(a) requires the district court to find a material change in circumstances prior to modifying primary residential responsibility. Kunz argues the court erred in finding that a material change in circumstances had occurred as a result of changes to the parties’ work schedules and the increase in the amount of parenting time being exercised by Slappy. Kunz argues that although Slappy's work schedule was now more favorable to exercising parenting time than it was at the time of divorce, her own schedule changes were even more favorable to establishing a stable parenting schedule for M.S. She also argues Slappy "had the duty to prove that he had parenting time on 50% of more of the overnights." Kunz urges this Court to adopt a standard "that in the context of motions to change residential responsibility, the change in the parenting time schedule must be such that equal or primary residential responsibility has also changed."

[¶11] This Court has recognized a change in a work schedule increasing the time the parent without primary residential responsibility has available to exercise parenting time can be a material change in circumstances. Ritter v. Ritter , 2016 ND 16, ¶¶ 9-10, 873 N.W.2d 899. In Ritter , we recognized a moving party could establish a material change in circumstances where their new employment results in a significant increase in their ability to care for a child. Id.

[¶12] While a minor variance from an existing parenting schedule is insufficient to establish a material change in circumstances, substantial variances can support a finding of a material change in circumstances. Ehli v. Joyce , 2010 ND 199, ¶¶ 9-10, 789 N.W.2d 560. In the context of remanding a case for the purpose of calculating an appropriate child support obligation where the existing judgment established equal residential responsibility, this Court noted the following: "If the trial court finds a significant change in circumstances, for example, that the parties’ current custodial arrangements are substantially different than contemplated in the divorce decree, then the divorce judgment's custody provision must be amended ...." Boumont v. Boumont , 2005 ND 20, ¶ 17, 691 N.W.2d 278.

[¶13] When the parties originally stipulated to Kunz having primary residential responsibility, Slappy was working in the oil industry in western North Dakota and was often unavailable to provide parenting time. At the time of the evidentiary hearing, Slappy had changed his employment and increased the time he was available to parent the parties’ child. Slappy has taken advantage of the increase in available time and exercised more parenting time with M.S. The district court specifically found Slappy "has exercised substantially more parenting time than provided by the Judgment."

[¶14] The district court referenced both Slappy's increased available time and the increase in his actual parenting time. The court recognized the change in Slappy's work schedule "coupled with not only his ability but his actual exercise of substantially more parenting time, constitutes a material change in circumstances warranting consideration of a change in residential responsibility." The court did not err in recognizing the combination of increased available time to parent coupled with an actual increase in parenting time could be a material change in circumstances as required by N.D.C.C. § 14-09-06.6(6)(a). We decline the request to adopt the standard "that in the context of motions to change residential responsibility, the change in the parenting time schedule must be such that equal or primary residential responsibility has also changed." However, as discussed in section IV, the ultimate finding there had been a change necessitating a modification of the existing primary residential responsibility for the best interests of the child was made under an erroneous view of the law and is clearly erroneous.

IV

[¶15] Section 14-09-06.6(6)(b) requires the district court to find the material change in circumstances necessitates modification of primary residential responsibility for the best interests of the children. Kunz argues the court erred in modifying the existing residential responsibility in the absence of a finding there has been a general decline in the condition of the child. On appeal, Slappy does not argue the general condition of the child has declined, and he has not challenged the court's finding the child "is a healthy eight (8) year old succeeding in school, sports and other extra-curricular activities and interests."

A

[¶16] This Court has previously recognized that a motion to modify primary residential responsibility requires a different analysis than an original custody proceeding. Hill v. Weber , 1999 ND 74, ¶ 8, 592...