Larson v. Larson

• Decision Date: 12 April 2016
• Docket Number: No. 20150178.,20150178.
• Citation: 878 N.W.2d 54
• Parties: Gregory C. LARSON, Plaintiff, Appellant and Cross–Appellee v. Ana Cristina Dos Santos Conceicao LARSON n/k/a, Ana Cristina Dos Santos Conceicao, Defendant, Appellee and Cross–Appellant and State of North Dakota, Statutory Real Party In Interest.
• Court: North Dakota Supreme Court

878 N.W.2d 54

Gregory C. LARSON, Plaintiff, Appellant and Cross–Appellee

v. Ana Cristina Dos Santos Conceicao LARSON n/k/a, Ana Cristina Dos Santos Conceicao, Defendant, Appellee and Cross–AppellantandState of North Dakota, Statutory Real Party In Interest.

No. 20150178.

Supreme Court of North Dakota.

April 12, 2016.

Carey A. Goetz, Bismarck, N.D., for plaintiff, appellant and cross-appellee.

Justin D. Hager, Bismarck, N.D., for defendant, appellee and cross-appellant.

VANDE WALLE, Chief Justice.

[¶ 1] Gregory C. Larson appealed from a district court order denying his motion to modify primary residential responsibility of their minor children from Ana Cristina Conceicao to him. Conceicao cross-appeals from an order denying her motions to relocate and for attorney fees. We affirm, concluding the district court's findings of fact on each party's motion are not clearly erroneous and the court did not abuse its discretion in denying Conceicao attorney fees.

I

[¶ 2] The parties divorced in 2006, have two minor children together, and currently reside in Mandan. Conceicao was awarded primary residential responsibility with liberal parenting time granted to Larson. In 2014, Larson moved to modify primary residential responsibility, alleging Conceicao was willfully interfering with his parenting time and relationship with the children. The district court found Larson established a prima facie case for modification and granted an evidentiary hearing on his motion.

[¶ 3] A few weeks before the hearing on Larson's motion, Conceicao filed a motion to relocate to Florida with the children. As a native of Brazil, Conceicao claimed a move to Florida would be in her and the children's best interests. Conceicao claimed Florida is more racially diverse and offers easier travel to Brazil. Conceicao stated in the motion and in her supporting affidavit that her motion was contingent on the denial of Larson's motion to modify primary residential responsibility. She stated she would not move if the district court awarded Larson primary residential responsibility of the children.

[¶ 4] At the hearing on Larson's motion, the district court asked the parties whether Conceicao's motion to relocate would also be heard. Conceicao's attorney stated they preferred to hear both motions at the same time, but reiterated her motion was dependent on the court denying Larson's motion and retaining primary residential responsibility with Conceicao. Larson's attorney stated they wished to proceed at a later date because they were not completely prepared to argue Conceicao's relocation motion. The court decided to hear Conceicao's motion to relocate at a later date if it denied Larson's motion to modify primary residential responsibility.

[¶ 5] The district court denied Larson's motion to modify primary residential responsibility. The court found Larson established a material change in circumstances. The court found Conceicao made unfounded reports to the police, interfered with Larson's parenting time, and in other instances displayed poor judgment and acted divisively in front of the children. Although the court found a material change in circumstances had occurred, it found changing primary residential responsibility to Larson would not be in the children's best interests. The court also ordered Larson to pay Conceicao $3,000 in attorney fees.

[¶ 6] After the subsequent hearing on Conceicao's motion to relocate, she moved for attorney fees, claiming she had a need for attorney fees and Larson had the ability to pay. The district court denied Conceicao's motions to relocate and for attorney fees. The court found Conceicao failed to establish a move to Florida would be in the children's best interests.

II

[¶ 7] Larson argues the district court erred in denying his motion to modify primary residential responsibility.

[¶ 8] A district court's decision on a motion to modify primary residential responsibility is a finding of fact, subject to the clearly erroneous standard of review. Seibold v. Leverington, 2013 ND 173, ¶ 12, 837 N.W.2d 342. "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." Id. We view the evidence in the light most favorable to the findings and we will not reweigh the evidence. Hentz v. Hentz, 2001 ND 69, ¶ 12, 624 N.W.2d 694.

[¶ 9] A motion for modification of primary residential responsibility filed more than two years after an earlier order establishing residential responsibility is governed under N.D.C.C. § 14–09–06.6(6), which provides:

The 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 interest of the child.

[¶ 10] Under N.D.C.C. § 14–09–06.6(6), a district court may modify primary residential responsibility if it finds: (1) a material change in circumstances has occurred; and (2) a modification is necessary to serve the child's best interests. Seibold, 2013 ND 173, ¶¶ 10–11, 837 N.W.2d 342. To find a modification is in the child's best interests, the court must consider the best interest factors under N.D.C.C. § 14–09–06.2(1)(a)–(m) :

a. The love, affection, and other emotional ties existing between the parents and child and the ability of each parent to provide the child with nurture, love, affection, and guidance.

b. The ability of each parent to assure that the child receives adequate food, clothing, shelter, medical care, and a safe environment.

c. The child's developmental needs and the ability of each parent to meet those needs, both in the present and in the future.

d. The sufficiency and stability of each parent's home environment, the impact of extended family, the length of time the child has lived in each parent's home, and the desirability of maintaining continuity in the child's home and community.

e. The willingness and ability of each parent to facilitate and encourage a close and continuing relationship between the other parent and the child.

f. The moral fitness of the parents, as that fitness impacts the child.

g. The mental and physical health of the parents, as that health impacts the child.

h. The home, school, and community records of the child and the potential effect of any change.

i. If the court finds by clear and convincing evidence that a child is of sufficient maturity to make a sound judgment, the court may give substantial weight to the preference of the mature child. The court also shall give due consideration to other factors that may have affected the child's preference, including whether the child's preference was based on undesirable or improper influences.

j. Evidence of domestic violence....

k. The interaction and interrelationship, or the potential for interaction and interrelationship, of the child with any person who resides in, is present, or frequents the household of a parent and who may significantly affect the child's best interests. The court shall consider that person's history of inflicting, or tendency to inflict, physical harm, bodily injury, assault, or the fear of physical harm, bodily injury, or assault, on other persons.

l. The making of false allegations not made in good faith, by one parent against the other, of harm to a child as defined in section 50–25.1–02.

m. Any other factors considered by the court to be relevant to a particular parental rights and responsibilities dispute.

The best interest factors must be analyzed in light of two additional considerations:

First, the best interests of the child factors must be gauged against the backdrop of the stability of the child's relationship with the custodial parent, because that stability is the primary concern in a change of custody proceeding. Second, after balancing the child's best interests and stability with the custodial parent, the trial court must conclude that a change in the status quo is required. A child is presumed to be better off with the custodial parent, and close calls should be resolved in favor of continuing custody. A change should only be made when the reasons for transferring custody substantially outweigh the child's stability with the custodial parent.

Seibold, at ¶ 11 (quoting Vining v. Renton, 2012 ND 86, ¶ 17, 816 N.W.2d 63 ).

[¶ 11] Here, the district court found a material change in circumstances occurred and neither party challenges that finding. In its analysis of the best interest factors, the court found factor (d) favored Conceicao, factor (e) slightly favored Larson, and the 11 remaining factors favored neither party. The court stated that "close calls are presumed to favor the custodial parent, and this case involves a close call. Accordingly, [Larson's] motion for change of custody fails."

[¶ 12] Larson argues the district court erred in denying his motion because the court did not consider Conceicao's intention to relocate with the children in its analysis of the best-interest factors. Larson argues Conceicao's motion to relocate should have been considered under factor (d), which promotes the maintenance of continuity in the children's home and community, and factor (h), concerning the home, school and community record of the children and the potential effect of any change.

[¶ 13] The district court addressed factors (d) and (h) as follows:

As to factor "d", the Court finds [Conceicao's] assertion compelling that she "has remained in the same house with a neighbor whom the children love and consider to be a Grandma." In deciding that this factor favors [Conceicao], the Court continues its practice of giving no weight to arguments

...