Lechler v. Lechler

• Decision Date: 17 August 2010
• Docket Number: No. 20090370.,20090370.
• Citation: 786 N.W.2d 733,2010 N.D. 158
• Parties: Barbara A. LECHLER, Plaintiff and Appelleev.Paul LECHLER, Defendant and Appellant.
• Court: North Dakota Supreme Court

786 N.W.2d 733

2010 ND 158

Barbara A. LECHLER, Plaintiff and Appelleev.Paul LECHLER, Defendant and Appellant.

No. 20090370.

Supreme Court of North Dakota.

Aug. 17, 2010.

Dann Edward Greenwood, Dickinson, N.D., for plaintiff and appellee.

Camille O'Kara Hann, Dickinson, N.D., for defendant and appellant.

SANDSTROM, Justice.

[¶ 1]Paul Lechler appeals from district court orders denying his motion to change the primary residential responsibility for his son and daughter to himself and granting Barbara A. Lechler's motion to have the children returned to her.We conclude the district court did not err in refusing to interview the children in chambers to learn their preferences for primary residential responsibility, and the court's finding that there had been no material change of circumstances to support a change of primary residential responsibility is not clearly erroneous.We affirm.

I

[¶ 2] In September 2003, the parties were divorced under the terms of a settlement agreement that awarded Barbara Lechler primary residential responsibility for the couple's two children subject to reasonable visitation by Paul Lechler.In May 2006, the district court granted her motion to permit her to change the residence of the children from Beach to Baker, Montana.The order also modified the visitation provisions of the divorce decree.Paul Lechler opposed the motion, but did not appeal the court's final decision.

[¶ 3] In August 2009, Paul Lechler moved to change the primary residential responsibility for the children from Barbara Lechler to himself, and she responded with a motion to hold him in contempt for failing to return the children to her after summer visitation and for enrolling them in the Beach school system.He alleged in an affidavit that his son, age 16 at the time, and daughter, age 12 at the time, preferred to live with him at his farm near Beach, that Barbara Lechler had committed domestic violence during an altercation with the son when she took away his cell phone, and that the best interests of the children would be better served if they resided with him.

[¶ 4] Before the hearing on the motions, the court notified the parties that “[u]nless the Court otherwise orders, evidence either in support of or in opposition to the motion must be presented by affidavit,” and that the affidavits would not be considered “unless, at the time of the evidentiary hearing, the party offering the affidavit makes the affiant available for cross [-]examination.”The parties did not object to this condition, but Paul Lechler told the court in a supplemental affidavit:

I am not comfortable with submitting affidavits of our children subjecting them to a court appearance.However, since the Court has more experience in this area than me, if the Court wishes to visit with our children and instructs me to make the children available to the Court, I will do so.

[¶ 5] During the evidentiary hearing, Barbara Lechler objected to the district court's interviewing the children in chambers.The parties were cross-examined regarding the claims made in their affidavits, but the court did not interview the children in chambers about their residential preferences because the parties would not “stipulate that I meet with them in chambers separately and just have a talk with them.”The court denied Paul Lechler's motion, finding that he failed to establish a material change of circumstances to justify changing primary residential responsibility for the children.The court also denied Barbara Lechler's motion for contempt and ordered the parties“to immediately work on the custody getting back to Ms. Lechler.”After Paul Lechler failed to return the children to Barbara Lechler, the court issued an order for the return of the children to her care by 4 p.m. on October 20, 2009.

[¶ 6]The district court had jurisdiction under N.D. Const. art. VI, § 8, andN.D.C.C. § 27-05-06.Paul Lechler's appeal is timely under N.D.R.App.P. 4(a).This Court has jurisdiction under N.D. Const. art. VI, §§ 2and6, andN.D.C.C. § 28-27-01.

II

[¶ 7]Paul Lechler argues the district court erred in failing to grant his motion to change the primary residential responsibility for the children.

[¶ 8]Motions to modify primary residential responsibility after two years from entry of a previous order are governed by 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.

[¶ 9]The party seeking to change primary residential responsibility has the burden of proving there has been a material change in circumstances and a change in primary residential responsibility is necessary to serve the child's best interests.Frueh v. Frueh,2009 ND 155, ¶ 8, 771 N.W.2d 593.We have defined a “material change in circumstances” as “an important new fact that was not known at the time of the prior custody decree.”Siewert v. Siewert,2008 ND 221, ¶ 17, 758 N.W.2d 691.If a district court determines no material change in circumstances has occurred, it is unnecessary for the court to consider whether a change in primary residential responsibility is necessary to serve the children's best interests.SeeMachart v. Machart,2009 ND 208, ¶ 11, 776 N.W.2d 795.A district court's decision whether to modify primary residential responsibility is a finding of fact which will not be reversed on appeal unless clearly erroneous.Dunn v. Dunn,2009 ND 193, ¶ 6, 775 N.W.2d 486.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.

A

[¶ 10]Paul Lechler argues the district court erred in refusing to allow the children to state their residential preferences to the judge in chambers and out of the presence of the parties.

[¶ 11]We review a district court's decision to allow children to testify about their residential preferences under the abuse of discretion standard.Clark v. Clark,2006 ND 182, ¶ 12, 721 N.W.2d 6.A district court abuses its discretion if it acts in an arbitrary, unreasonable, or unconscionable manner, if its decision is not the product of a rational mental process leading to a reasoned determination, or if it misinterprets or misapplies the law.Woodward v. Woodward,2009 ND 214, ¶ 6, 776 N.W.2d 567.A child's preference to live with one parent can constitute a material change in circumstances to justify a change in primary residential responsibility if there are persuasive reasons for that preference see, e.g.Machart,2009 ND 208, ¶ 12, 776 N.W.2d 795;Mosbrucker v. Mosbrucker,1997 ND 72, ¶ 10, 562 N.W.2d 390.Here, although the parties agree the children want to live with their father, they disagree as to the reasons.No affidavits were submitted from the children.The children were not called to testify.The district court could properly find that persuasive reasons for the preference were not established.

[¶ 12]The district court's amended notice of hearing informed the parties that evidence “must be presented by affidavit.”

District courts“exercise great latitude and discretion in conducting a trial and in controlling the presentation of evidence.”Isaacson v. Isaacson,2010 ND 18, ¶ 9, 777 N.W.2d 886.Paul Lechler did not object to this requirement and did not submit affidavits from the children expressing their residential preferences or the reasons for them.Instead, Paul Lechler was reluctant to have the children involved in the proceedings and merely offered to make the children “available” to the court if the court“wishes to visit with” them.The court decided not to visit with the children.

[¶ 13]Rule 43(a), N.D.R.Civ.P., provides that “[i]n every trial, the testimony of witnesses must be taken orally or by non-oral means in open court, unless otherwise provided by statute or these rules.”(Emphasis added.)There are no statutes or rules addressing in chamber interviews of children by district court judges for purposes of learning their residential preferences.Nevertheless, the practice is sanctioned by this Court's caselaw, at least in situations in which the parties do not object to the procedure.See, e.g.Frueh,2009 ND 155, ¶ 19, 771 N.W.2d 593(complaining party failed to object to in chamber interview during which parties' attorneys were not allowed to question the child);Ryan v. Flemming,533 N.W.2d 920, 923(N.D.1995)(complaining party failed to object to in chamber interview of child during which parties' attorneys were present but parties were not present);Guldeman v. Heller,151 N.W.2d 436, 439(N.D.1967)(in chamber interview of child “was consented to and agreed upon by respective counsel”);see alsoWolt v. Wolt,2010 ND 26, ¶ 19, 778 N.W.2d 786(no objections mentioned);Klose v. Klose,524 N.W.2d 94, 96(N.D.1994)(same);Miller v. Miller,305 N.W.2d 666, 670(N.D.1981)(same);Bergstrom v. Bergstrom,296 N.W.2d 490, 493(N.D.1980)(same);Starke v. Starke,458 N.W.2d 758, 761(N.D.Ct.App.1990)(same).

[¶ 14] In Muraskin v. Muraskin,336 N.W.2d 332, 334(N.D.1983), the district court, over the objection of one of the parties and in the absence of counsel, conducted an in chamber interview of two children and ruled the transcript of the interview would be made available to the Supreme Court, but not to the parties, because the court assured the children their statements would be confidential.This Court affirmed the district court's order on the basis of “comity and in order to continue the regard and...