Lagro v. Lagro

• Decision Date: 18 August 2005
• Docket Number: No. 20050094.,20050094.
• Citation: 703 N.W.2d 322,2005 ND 151
• Parties: Leah M. LAGRO, Plaintiff and Appellant v. James A. LAGRO, Defendant and Appellee.
• Court: North Dakota Supreme Court

703 N.W.2d 322

2005 ND 151

Leah M. LAGRO, Plaintiff and Appellant v. James A. LAGRO, Defendant and Appellee.

No. 20050094.

Supreme Court of North Dakota.

August 18, 2005.

Loren C. McCray, Bismarck, N.D., for plaintiff and appellant.

Brenda A. Neubauer, Neubauer & Oster, Bismarck, N.D., for defendant and appellee.

SANDSTROM, Justice.

[¶ 1] Less than ten months after the district court awarded primary physical custody of the child to the father, the mother moved to amend the judgment to change custody. After the district court denied the motion, she appealed the order. Concluding the district court did not err in denying an evidentiary hearing, we affirm.

I

[¶ 2] Leah and James Lagro were divorced on March 3, 2004. From their marriage, they have one child, who was five years old at the time of the divorce. The mother was given primary physical custody while the divorce was pending. After the divorce trial, the court wrote in its memorandum opinion:

[T]his Court ordered the [mother] to give the [father] notice whenever [the] minor child was in need of child care and to allow the [father] the first opportunity to provide the same. Notwithstanding the Court's explicit admonition to the [mother] to allow the [father] first opportunity to provide child care, [the mother] has failed to grant the defendant this opportunity and has employed third-party child care providers. Additionally, [the mother] represents to the Court her extraordinary flexible work schedule, yet when the defendant attempted to exercise summertime week long visitation, it required multiple efforts on the part of the [father] to achieve the same.

The divorce judgment ordered "joint custody" of the minor child with physical custody going to James Lagro during the school year and to Leah Lagro during the summer months, beginning one week after school lets out until one week before the start of the next school year. The judgment also gave Leah Lagro visitation after school until 5:30 p.m. on Mondays, Wednesdays, and Fridays and until 8:00 p.m. on Tuesdays and Thursdays. The parties alternate holidays and weekends, and each is entitled to one week of summer vacation with the child. The court specifically found the "previous reluctance on the part of the mother to grant the father first opportunity to provide child care when the same is needed," and ordered that "[e]ach of the parties... are granted the exclusive first opportunity to provide child care for the minor child when the same is needed for more than two hours in length."

[¶ 3] On December 30, 2004, Leah Lagro moved for an evidentiary hearing to modify the divorce judgment to give her exclusive care, custody, and control of the child. She filed affidavits alleging that James Lagro was neglecting his parental duties and that she had been acting as the primary physical custodian since the divorce. She alleged that when the child was with his father, there were problems that could endanger the child's physical or emotional health as well as impair his emotional development.

[¶ 4] The district court denied the motion to amend the divorce judgment, stating there had not been a material change of circumstances since the original divorce judgment.

[¶ 5] Leah Lagro appeals the order. [¶ 6] The district court had jurisdiction under N.D. Const. art VI, § 8, and N.D.C.C. § 27-05-06. The appeal was timely under N.D.R.App.P. 4(a). This Court has jurisdiction under N.D. Const. art. VI, § 6, and N.D.C.C. § 28-27-01.

II

[¶ 7] Leah Lagro argues the district court erred in denying an evidentiary hearing on her motion for custody modification. She claims her affidavits establish sufficient evidence to prove that a material change of circumstances has occurred. She argues her affidavits demonstrate the child's present environment may endanger his physical or emotional health or impair his emotional development. She also claims the child is already in her care, custody, and control because she has been the primary caregiver for more than six months.

[¶ 8] James Lagro argues, on appeal, that Leah Lagro is rearguing the same issues presented during the original divorce hearing and that all of her new allegations were contradicted and discredited by his affidavits. He asserts the new allegations were not supported by teachers, qualified mental health experts, social service workers, or any other unbiased individuals. He argues these new allegations do not meet the more stringent burden placed on change-of-custody motions that occur within two years of the original divorce decree.

[¶ 9] The test for changing the custody of a child after a divorce decree is set out in N.D.C.C. § 14-09-06.6, which provides:

Limitations on postjudgment custody modifications.

. . . .

4. A party seeking modification of a custody order shall serve and file moving papers and supporting affidavits and shall give notice to the other party to the proceeding who may serve and file a response and opposing affidavits. The court shall consider the motion on briefs and without oral argument or evidentiary hearing and shall deny the motion unless the court finds the moving party has established a prima facie case justifying a modification. If a prima facie case is established, the court shall set a date for an evidentiary hearing.

5. The court may not modify a prior custody order within the two-year period following the date of entry of an order establishing custody unless the court finds the modification is necessary to serve the best interest of the child and:

a. The persistent and willful denial or interference with visitation;

b. The child's present environment may endanger the child's physical or emotional health or impair the child's emotional development; or

c. The primary physical care of the child has changed to the other parent for longer than six months.

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.

. . . .

8. Upon a motion to modify custody under this section, the burden of proof is on the moving party.

N.D.C.C. § 14-09-06.6.

[¶ 10] The district court analyzed the child custody modification motion under the more lenient N.D.C.C. § 14-09-06.6(6) standard, which applies if a modification is sought after two years following the date of an order establishing custody. "We will not set aside a correct result merely because an incorrect, more relaxed standard was applied, if the result is the same under the correct law and reasoning." State ex rel. D.D. v. G.K., 2000 ND 101, ¶ 6, 611 N.W.2d 179; Interest of K.M.G., 2000 ND 50, ¶ 7, 607 N.W.2d 248.

[¶ 11] The legislature enacted N.D.C.C. § 14-09-06.6 to address the frequency of child custody disputes. 1997 N.D. Sess. Laws ch. 149, § 1. We have held:

The purpose of the legislation was to curtail repeat custody litigation. It is the product of the 1995 Joint Family Law Task Force formed by order of this Court at the request of the State Bar Association. Testifying on the legislation before the Senate Judiciary Committee, Chair Sherry Mills Moore explained the object of the proposed legislation:

With SB 2167 we are trying to put more stability in the lives of children who are the object of a custody dispute by slowing the revolving door to the courthouse....

.... The decision about custody, and the process attendant to making that decision are of their very nature painful, disruptive, and destabilizing....

....

Under SB 2167, for a period of two years following a custody determination there is something of a moratorium for the family. The custody-changing process cannot be initiated except in some specific and necessary situations.

Hearing on SB 2167 before the Senate Judiciary Committee, 55th N.D. Leg. Sess. (Jan. 21, 1997).

Quarne v. Quarne, 1999 ND 188, ¶ 9, 601 N.W.2d 256.

[¶ 12] Leah Lagro argues the district court erred by not ordering an evidentiary hearing. A party seeking modification of a custody order has to file moving papers and supporting affidavits with the court. N.D.C.C. § 14-09-06.6(4).

[¶ 13] This Court generally applies a clearly erroneous standard when reviewing child custody modifications. See Frieze v. Frieze, 2005 ND 53, ¶ 3, 692 N.W.2d 912; Roberson v. Roberson, 2004 ND 203, ¶¶ 4, 10, 688 N.W.2d 380; Lawrence v. Delkamp, 2003 ND 53, ¶ 7, 658 N.W.2d 758; Seibel v. Seibel, 2004 ND 41, ¶ 5, 675 N.W.2d 182; Damron v. Damron, 2003 ND 166, ¶ 5, 670 N.W.2d 871; Lanners v. Johnson, 2003 ND 61, ¶ 4, 659 N.W.2d 864; Kelly v. Kelly, 2002 ND 37, ¶ 13, 640 N.W.2d 38; Interest of K.M.G., 2000 ND 50, ¶ 4, 607 N.W.2d 248. A majority of this Court, however, has established a de novo standard of review when deciding whether a prima facie case is established requiring an evidentiary hearing. See Hawley v. LaRocque, 2004 ND 215, ¶ 4, 689 N.W.2d 386; Tank v. Tank, 2004 ND 15, ¶ 46, 673 N.W.2d 622 (Maring, J., dissenting). North Dakota patterned its affidavit procedure to modify custody within two years of a prior consideration on Minnesota's statute. Joint Task Force on Family Law, Summary Report (June 17, 1996). Minnesota employs an abuse-of-discretion standard in reviewing the denial of an evidentiary hearing on change of custody. In re Weber, 653 N.W.2d 804, 809 (Minn.Ct.App.2002); Valentine v. Lutz, 512 N.W.2d 868, 872 (Minn.1994); see also Smith v. Smith, 508 N.W.2d 222, 226-27 (Minn.Ct.App.1993); Nice-Petersen v. Nice-Petersen, 310 N.W.2d 471, 472 (Minn.1981).

[¶ 14] Our North Dakota statute requires not only a prima facie case but also provides the opposing party may file affidavits, and it requires the court to "deny the motion unless the court finds the moving party...