Lucas v. Lucas

• Decision Date: 14 January 2014
• Docket Number: No. 20130070.,20130070.
• Citation: 2014 ND 2,841 N.W.2d 697
• Parties: Melissa L. Horacek LUCAS, Plaintiff and Appellant v. Richard LUCAS, Defendant and Appellee.
• Court: North Dakota Supreme Court

841 N.W.2d 697

2014 ND 2

Melissa L. Horacek LUCAS, Plaintiff and Appellant

v.Richard LUCAS, Defendant and Appellee.

No. 20130070.

Supreme Court of North Dakota.

Jan. 14, 2014.

Melissa L. Horacek, self-represented, Goodrich, N.D., plaintiff and appellant.

Gregory I. Runge, Bismarck, N.D., for defendant and appellee.

KAPSNER, Justice.

[¶ 1] Melissa Horacek appeals from a judgment granting Richard Lucas's motion to change primary residential responsibility for their minor child from Horacek to Lucas. Because we conclude the district court failed to make sufficient findings of fact to explain its decision to change primary residential responsibility to Lucas, we reverse and remand for further findings.

I

[¶ 2] Horacek and Lucas were married in 2005 and divorced in a judgment entered in 2011. The divorce judgment granted primary residential responsibility of their minor child, K.J.L., to Horacek with parenting time awarded to Lucas.

[¶ 3] On May 26, 2012, on arriving at home after picking up K.J.L. for weekend parenting time, Lucas noticed bruising on K.J.L.'s legs and asked K.J.L. what had happened. According to Lucas, K.J.L. stated that her mother and half-brother had hit her. Lucas immediately called the Burleigh County Sheriff's Department, and Officer Ray Dingeman came to Lucas's home and inspected K.J.L.'s bruises. The court found the officer observed bruising just below the buttocks on the back of the leg that was consistent with marks from fingers, and there was a long thin bruise lower on the same side of the leg. The court found that when the officer asked K.J.L. what happened, she told him that her half-brother hit her with a stick and that her mother had spanked her with her hand. Officer Dingeman also photographed the marks on K.J.L.

[¶ 4] In July 2012, Horacek moved the district court for an order to show cause, requesting Lucas be held in contempt for not returning their child to her. The court referred the matter to a judicial referee. In August 2012, Lucas responded to Horacek's motion and also moved the court to modify the judgment to change primary residential responsibility from Horacek to him.

[¶ 5] The order to show cause was subsequently dismissed, and in September 2012, the district court entered an order, holding Horacek had not filed a brief or affidavits in response to Lucas's motion and Lucas had established a prima facie case to proceed with an evidentiary hearing on his motion. Horacek responded to oppose Lucas's motion. After a November 2012 evidentiary hearing, the district court changed primary residential responsibility of the child to Lucas, and a judgment was subsequently entered.

II

[¶ 6] Horacek argues the district court erred in finding a prima facie case to proceed with an evidentiary hearing on Lucas's motion to change primary residential responsibility.

[¶ 7] Section 14–09–06.6, N.D.C.C., governs post-judgment primary residential responsibility modification, and when a party moves to modify residential responsibility within two years after an order establishing residential responsibility, the court applies a stricter or more rigorous modification standard. SeeN.D.C.C. § 14–09–06.6(5); In re N.C.M., 2013 ND 132, ¶ 9, 834 N.W.2d 270;Laib v. Laib, 2008 ND 129, ¶ 8, 751 N.W.2d 228. To obtain an evidentiary hearing on a motion for modification, the party seeking the modification must first establish a prima facie case under N.D.C.C. § 14–09–06.6(4). However, we have explained that “any issue regarding the evidentiary basis for a court's decision that a prima facie case has been established under N.D.C.C. § 14–09–06.6(4) is rendered moot once the evidentiary hearing is held.” Kartes v. Kartes, 2013 ND 106, ¶ 18, 831 N.W.2d 731;see also In re N.C.M., at ¶ 10.

[¶ 8] Here, the district court held a November 2012 evidentiary hearing on Lucas's motion to change primary residential responsibility. Because the court held a full evidentiary hearing on Lucas's motion, the issue regarding whether the court erred in granting the hearing under N.D.C.C. § 14–09–06.6(4) is moot. We therefore do not address whether the court erred in concluding Lucas established a prima facie case.

III

[¶ 9] Horacek argues the district court erred in finding “exceptional circumstances” existed to change primary residential responsibility of their minor child, erred in finding Lucas's allegations of abuse constituted a material change in circumstances, and erred in modifying the original custody order.

A

[¶ 10] Because Lucas's motion to modify primary residential responsibility was made within two years of entry of the divorce judgment granting Horacek primary residential responsibility, the motion is governed by N.D.C.C. § 14–09–06.6(5):

The court may not modify the primary residential responsibility within the two-year period following the date of entry of an order establishing primary residential responsibility 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 parenting time;

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 residential responsibility for the child has changed to the other parent for longer than six months.

See alsoN.D.C.C. § 14–09–06.6(3).

[¶ 11] A district court must award primary residential responsibility to the party who will best promote the child's best interests and welfare. See Rustad v. Rustad, 2013 ND 185, ¶ 6, 838 N.W.2d 421;In re N.C.M., 2013 ND 132, ¶ 13, 834 N.W.2d 270. In addressing the child's best interests, the court must consider all relevant factors under N.D.C.C. § 14–09–06.2(1)(a) through (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. In determining parental rights and responsibilities, the court shall consider evidence of domestic violence. If the court finds credible evidence that domestic violence has occurred, and there exists one incident of domestic violence which resulted in serious bodily injury or involved the use of a dangerous weapon or there exists a pattern of domestic violence within a reasonable time proximate to the proceeding, this combination creates a rebuttable presumption that a parent who has perpetrated domestic violence may not be awarded residential responsibility for the child. This presumption may be overcome only by clear and convincing evidence that the best interests of the child require that parent have residential responsibility. The court shall cite specific findings of fact to show that the residential responsibility best protects the child and the parent or other family or household member who is the victim of domestic violence. If necessary to protect the welfare of the child, residential responsibility for a child may be awarded to a suitable third person, provided that the person would not allow access to a violent parent except as ordered by the court. If the court awards residential responsibility to a third person, the court shall give priority to the child's nearest suitable adult relative. The fact that the abused parent suffers from the effects of the abuse may not be grounds for denying that parent residential responsibility. As used in this subdivision, “domestic violence” means domestic violence as defined in section 14–07.1–01. A court may consider, but is not bound by, a finding of domestic violence in another proceeding under chapter 14–07.1.

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.

[¶ 12] A district court has broad discretion in making a primary residential responsibility decision, but the court must consider all of the relevant best interest factors under N.D.C.C. § 14–09–06.2(1). Rustad, 2013 ND 185, ¶ 6, 838 N.W.2d 421. “Although a separate finding is not required for each statutory...