Lechler v. Lechler, No. 20090370.

CourtUnited States State Supreme Court of North Dakota
Writing for the CourtSANDSTROM
Citation2010 ND 158,786 N.W.2d 733
PartiesBarbara A. LECHLER, Plaintiff and Appelleev.Paul LECHLER, Defendant and Appellant.
Decision Date17 August 2010
Docket NumberNo. 20090370.

786 N.W.2d 733
2010 ND 158

Barbara A. LECHLER, Plaintiff and Appellee
v.
Paul LECHLER, Defendant and Appellant.

No. 20090370.

Supreme Court of North Dakota.

Aug. 17, 2010.


786 N.W.2d 734
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

786 N.W.2d 735
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, and N.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, §§ 2 and 6, and N.D.C.C. § 28-27-01.

786 N.W.2d 736
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. See Machart 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...

To continue reading

Request your trial
16 practice notes
  • Rath v. Rath, No. 20170239
    • United States
    • United States State Supreme Court of North Dakota
    • June 5, 2018
    ...was not known at the time of the prior custody decree." Hankey v. Hankey , 2015 ND 70, ¶ 6, 861 N.W.2d 479 (quoting Lechler v. Lechler , 2010 ND 158, ¶ 9, 786 N.W.2d 733 (citation omitted) ). The party seeking to modify primary residential responsibility [911 N.W.2d 924bears the burden of p......
  • Jensen v. Jensen, No. 20120450.
    • United States
    • United States State Supreme Court of North Dakota
    • August 29, 2013
    ...if there are persuasive reasons for that preference. E.g., Frison v. Ohlhauser, 2012 ND 35, ¶ 7, 812 N.W.2d 445;Lechler v. Lechler, 2010 ND 158, ¶ 11, 786 N.W.2d 733. The district court in this case concluded, however, that R.J.'s preference did not constitute a material change in circumsta......
  • State Of N.D. v. Neustel, No. 20100086.
    • United States
    • United States State Supreme Court of North Dakota
    • November 9, 2010
    ...of the child or the parties; and b. The modification is necessary to serve the best interest of the child. [¶ 6] In Lechler v. Lechler, 2010 ND 158, ¶ 9, 786 N.W.2d 733, this Court recently explained: The party seeking to change primary residential responsibility has the burden of proving t......
  • Simons v. State , No. 20110012.
    • United States
    • North Dakota Supreme Court
    • September 15, 2011
    ...Court has held N.D.C.C. § 12.1–05–05(1) gives parents the right to use reasonable force to discipline their children. Lechler v. Lechler, 2010 ND 158, ¶ 19, 786 N.W.2d 733; Dinius v. Dinius, 1997 ND 115, ¶¶ 15–16, 564 N.W.2d 300. By its terms, the statute provides that a [803 N.W.2d 594] pa......
  • Request a trial to view additional results
16 cases
  • Rath v. Rath, No. 20170239
    • United States
    • United States State Supreme Court of North Dakota
    • June 5, 2018
    ...was not known at the time of the prior custody decree." Hankey v. Hankey , 2015 ND 70, ¶ 6, 861 N.W.2d 479 (quoting Lechler v. Lechler , 2010 ND 158, ¶ 9, 786 N.W.2d 733 (citation omitted) ). The party seeking to modify primary residential responsibility [911 N.W.2d 924bears the burden of p......
  • Jensen v. Jensen, No. 20120450.
    • United States
    • United States State Supreme Court of North Dakota
    • August 29, 2013
    ...if there are persuasive reasons for that preference. E.g., Frison v. Ohlhauser, 2012 ND 35, ¶ 7, 812 N.W.2d 445;Lechler v. Lechler, 2010 ND 158, ¶ 11, 786 N.W.2d 733. The district court in this case concluded, however, that R.J.'s preference did not constitute a material change in circumsta......
  • State Of N.D. v. Neustel, No. 20100086.
    • United States
    • United States State Supreme Court of North Dakota
    • November 9, 2010
    ...of the child or the parties; and b. The modification is necessary to serve the best interest of the child. [¶ 6] In Lechler v. Lechler, 2010 ND 158, ¶ 9, 786 N.W.2d 733, this Court recently explained: The party seeking to change primary residential responsibility has the burden of proving t......
  • Simons v. State , No. 20110012.
    • United States
    • North Dakota Supreme Court
    • September 15, 2011
    ...Court has held N.D.C.C. § 12.1–05–05(1) gives parents the right to use reasonable force to discipline their children. Lechler v. Lechler, 2010 ND 158, ¶ 19, 786 N.W.2d 733; Dinius v. Dinius, 1997 ND 115, ¶¶ 15–16, 564 N.W.2d 300. By its terms, the statute provides that a [803 N.W.2d 594] pa......
  • Request a trial to view additional results

VLEX uses login cookies to provide you with a better browsing experience. If you click on 'Accept' or continue browsing this site we consider that you accept our cookie policy. ACCEPT