Mertz v. Mertz, 880360
| Decision Date | 19 April 1989 |
| Docket Number | No. 880360,880360 |
| Parties | Denis Dean MERTZ, Plaintiff and Appellee, v. Melody Ann MERTZ, Defendant and Appellant. Civ. |
| Court | North Dakota Supreme Court |
C. Charles Chinquist, Fargo, for plaintiff and appellee.
Leslie Johnson-Soetebier, of Legal Assistance of North Dakota, Fargo, for defendant and appellant.
Melody Ann Mertz appealed from an amended judgment changing the physical custody of the parties' oldest son, Scott Mertz, from Melody to Denis Dean Mertz. We affirm.
Melody and Denis were divorced in 1983. A stipulated agreement was incorporated into the divorce judgment wherein custody of the couple's three children was placed with Melody. At that time, Scott was approximately nine years old.
In January 1988, Melody and Scott had a confrontation which resulted in Melody's allowing Scott to live with his father for the remainder of the school year. She later agreed to let him stay with his father until June 1988.
On June 23, 1988, prior to Scott's moving back with his mother, Denis moved that, inter alia, the judgment awarding Melody custody of Scott be modified to transfer custody of Scott to Denis. The matter was heard before a judicial referee 1 who found that there had been a significant change in circumstances and recommended that, in the best interests of Scott, his custody should be transferred to Denis. Melody sought review of the referee's decision by the district court. See Rule 13, section 11, N.D.Supreme Court Admin.Rules. The district court confirmed the referee's decision and Melody appealed to this court.
On appeal, Melody argues that Denis failed to show there was a significant change in circumstances and that it was in the best interests of Scott that his custody be transferred to Denis. The only possible change in circumstances, she suggests, is that Melody allowed Scott to live with Denis for a short period of time; moreover, even if this court were to hold that there had been a significant change in circumstances, the best interests of Scott warrant that Melody retain custody of him. To support her argument, Melody points to her affidavit in which she states that since Scott moved in with his father, his grades have dropped, he has been absent from school more often, and he has little or no supervision while living with his father.
The judicial referee did not specifically state what he relied on in concluding that there had been a significant change in circumstances. Denis suggests the referee's findings indicated that there were many significant changed circumstances. Specifically he points out, the referee found that Scott had been living with his father since January 1988; Scott was unable to get along with his two brothers while living with his mother, creating an "openly hostile" environment; Melody had disciplinary trouble with Scott; and Scott wished to live with his father.
We have set forth many times the two-step analysis involved when a party seeks to modify a custody award. E.g., Miller v. Miller, 305 N.W.2d 666 (N.D.1981). First, there must have been a significant change in circumstances. If there has been, then the court must further determine whether those changes are such that the best interests of the child warrant a change in custody. The burden of showing a significant change in circumstances and that the best interests of the child warrant a change in custody rests with the party seeking modification. Koller v. Koller, 377 N.W.2d 130 (N.D.1985). The decision of the trier of fact will not be set aside unless it is clearly erroneous under Rule 52(a), N.D.R.Civ.P. Id. A finding of fact is clearly erroneous if the reviewing court is left with a definite and firm conviction that a mistake has been made [e.g., Sorum v. Schwartz, 411 N.W.2d 652 (N.D.1987) ], or if the finding was induced by an erroneous view of the law [e.g., Manz v. Bohara, 367 N.W.2d 743 (N.D.1985)].
"Changed circumstances" has been defined by this court as "new facts which were unknown to the moving party at the time the decree was entered." Wright v. Wright, 431 N.W.2d 301, 303 (N.D.1988). Although the preference of the child is relevant in determining the best interests of the child [Section 14-09-06.2(9), N.D.C.C.], it may not be as important in determining whether there has been a significant change in circumstances. Cf. Miller v. Miller, supra.
Melody stated in her affidavit that the reason she allowed Scott to live with his father was so that Scott "could see what living with his father was like, so he would not cause anymore trouble at home (he had been picking a lot of fights with his brothers), and because I could no longer trust Scott to stay alone with the children for any amount of time because he has a terrible temper and might go off and leave them alone."
The referee found that Scott was unable to get along with his brothers while living with his mother, creating an "openly hostile" environment. Although the phrase he used may have been too forceful to describe the state of affairs, the evidence does support the referee's finding that problems existed between Scott and his two brothers. This, along with the fact that Melody had disciplinary trouble with Scott and the fact that Scott had been living with his father for over six months at the time of the hearing on the motion to modify custody, leads us to conclude that the finding that there was a significant change in circumstances was not clearly erroneous. We therefore proceed to consider whether the recommendation that it is in Scott's best interests that his custody be placed with his father was clearly erroneous.
Section 14-09-06.2, N.D.C.C., lists several factors to be considered in...
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