Lovett v. Lovett, 20210198

• Court: United States State Supreme Court of North Dakota
• Writing for the Court: VANDEWALLE, JUSTICE
• Citation: 2022 ND 37
• Parties: Viviana J. Lovett, Plaintiff and Appellant v. Antonio R. Lovett, Defendant and Appellee and State of North Dakota, Statutory Real Party in Interest
• Docket Number: 20210198
• Decision Date: 18 February 2022

2022 ND 37

Viviana J. Lovett, Plaintiff and Appellant
v.
Antonio R. Lovett, Defendant and Appellee

and State of North Dakota, Statutory Real Party in Interest

No. 20210198

Supreme Court of North Dakota

February 18, 2022

Appeal from the District Court of Ward County, North Central Judicial District, the Honorable Stacy J. Louser, Judge.

Christene A. Reierson, Minot, ND, for plaintiff and appellant; submitted on brief.

Kyle R. Craig, Minot, ND, for defendant and appellee; submitted on brief.

VANDEWALLE, JUSTICE

[¶1] Viviana Lovett appealed from an order denying her motion to modify primary residential responsibility for the children she has with Antonio Lovett. Viviana Lovett argues the district court erred by finding she failed to establish a prima facie case for modification because the divorce judgment stated the parties would revisit the parenting plan if either parent intends to move and Antonio Lovett filed a motion to relocate the children. We do not reach the merits of Viviana Lovett's argument because we conclude the issue on appeal is now moot. We dismiss the appeal.

I

[¶2] Viviana Lovett and Antonio Lovett divorced in 2018 and have two minor children together. The divorce judgment, which adopted the parties' stipulation, awarded the parties equal residential responsibility for the children and included a parenting plan. The judgment included a provision stating the parenting plan would be reviewed upon the oldest child reaching the age of ten or if either parent intends to move more than 50 miles from their current residence.

[¶3] In 2019, Antonio Lovett moved to modify primary residential responsibility for the children. In January 2020, the district court granted the father's motion and awarded him primary residential responsibility for the children. The parties agreed to modify certain sections of the parenting plan, the court adopted the parties' stipulation, and judgment was entered. The judgment indicated which paragraphs of the prior judgment were modified and stated all other provisions of the parenting plan incorporated in the 2018 judgment "that do not conflict with the terms agreed upon shall remain unchanged."

1

[¶4] In April 2021, Antonio Lovett moved to relocate with the children to Japan. Viviana Lovett moved to modify residential responsibility, arguing the judgment allows a motion to modify residential responsibility in less than two years from the prior order if either party intends to move more than 50 miles and Antonio Lovett's motion to relocate triggers that provision.

[¶5] In June 2021, the district court denied Viviana Lovett's motion to modify primary residential responsibility, finding she failed to establish a prima facie case for modification because she did not allege any of the statutory exceptions to the two-year time limitation on modification motions applied. In August 2021, the court denied Antonio Lovett's motion to relocate.

II

[¶6] Viviana Lovett argues the district court erred by finding she failed to establish a prima facie case for modification. She asserts the parties stipulated and the parenting plan provided that they would review the parenting plan upon the oldest child reaching the age of ten or if either parent intends to move more than 50 miles from their current residence. She claims this provision from the 2018 judgment was incorporated by reference in the 2020 judgment, both of those conditions have been met, and...