Mosbrucker v. Mosbrucker, No. 960329
| Court | United States State Supreme Court of North Dakota |
| Writing for the Court | VANDE WALLE; NEUMANN |
| Citation | 562 N.W.2d 390,1997 ND 72 |
| Decision Date | 22 April 1997 |
| Docket Number | No. 960329 |
| Parties | Ronald A. MOSBRUCKER, Plaintiff and Appellee, v. Debra J. MOSBRUCKER, Defendant and Appellant. Civil |
Page 390
v.
Debra J. MOSBRUCKER, Defendant and Appellant.
Page 392
Maury C. Thompson, Christensen & Thompson, Bismarck, for plaintiff and appellee.
Leslie Bakken Oliver (argued) & Monte L. Rogneby (on brief), Kapsner and Kapsner, Bismarck, for defendant and appellant.
VANDE WALLE, Chief Justice.
¶1 Debra Mosbrucker appealed from the trial court's order denying her motion to amend the divorce judgment. Debra contends the trial court erred when it found no significant change of circumstances. We reverse and remand.
¶2 Ronald and Debra Mosbrucker were married in 1976. Following 18 years of marriage the couple decided to terminate the marriage and Ronald brought this action for divorce in September of 1994. The parties stipulated to a decree of divorce. The stipulation divided the couple's assets and determined the issue of custody for their, then, 14 year old daughter, Amanda. Under the stipulation of custody, the parties agreed to share joint legal and physical custody. It also provided Amanda was free to choose to live at either parent's residence. Because of Amanda's ability to choose her residence, and after taking account of their financial situations, Ronald and Debra agreed neither party would be obligated to pay child support to the other party.
¶3 Amanda lived with Ronald for a little over a year. Tension arose when Ronald remarried and his new wife's family moved into his house. Amanda testified this arrangement made her uncomfortable and decided to move to Debra's home. Amanda then asked her mother to seek a custody modification so she could live there permanently.
¶4 Debra made a motion to amend the divorce judgment based on the change of circumstances surrounding Amanda's custody. Debra also sought to establish a child support obligation for Ronald, including enforcement of an alleged oral promise, from Ronald, to pay for all of Amanda's college expenses in exchange for Debra's waiver of any right she may have to his pension. 1 The trial court found there was not a significant change of circumstances and denied the motion.
¶5 A trial court's decision to modify custody is a finding of fact subject to the "clearly erroneous" standard of review. Johnson v. Schlotman, 502 N.W.2d 831, 833 (N.D.1993). A finding of fact is clearly erroneous if there is no evidence to support it, if it is clear to the reviewing court that a mistake has been made, or if the finding is induced by an erroneous view of the law. In re Estate of Dittus, 497 N.W.2d 415, 418 (N.D.1993); Rule 52(a), N.D.R.Civ.P.
¶6 A court's analysis in considering whether to modify custody differs from its analysis when awarding original custody. Delzer v. Winn, 491 N.W.2d 741, 743 (N.D.1992). For a determination of an original custody award, only the best interests of the child are considered. N.D.C.C. § 14-09-06.1; Ternes v. Ternes, 555 N.W.2d 355, 357 (N.D.1996). But, when a party is seeking to modify a custody arrangement, a court applies a two step process. Hagel v. Hagel, 512 N.W.2d 465, 467 (N.D.1994). A trial court must determine: 1) Whether there has been a significant change of circumstances following the divorce and custody determination, and; 2) whether the changes of circumstances effect the child in such an adverse way that it compels or requires a change in the existing custody arrangement to further the best interests of the child. Id. at 467; Schlotman, 502 N.W.2d at 834; Delzer, 491 N.W.2d at 743; Blotske v. Leidholm, 487
Page 393
N.W.2d 607, 609 (N.D.1992). The burden of proving these two elements is on the moving party. Hagel, 512 N.W.2d at 467. Not every change in circumstances will amount to a "significant change" warranting a change or modification of custody. Ludwig v. Burchill, 481 N.W.2d 464, 469 (N.D.1992) (Levine, J., concurring specially).¶7 Initially, the parties agreed to the custody arrangement for Amanda. Their stipulation, as to custody, provided, in part:
"The parties agree that they are both fit and proper parents to have custody of their minor child, Amanda, and that it is in the best interest of their child that the parent shall have joint legal custody. By 'joint legal custody' is meant shared responsibility for all major decisions...
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Dunn v. Dunn, No. 20090127.
...change of circumstances." 2002 ND 37, ¶ 19, 640 N.W.2d 38 (citing Gietzen, 1998 ND 70, ¶ 10, 575 N.W.2d 924; Mosbrucker v. Mosbrucker, 1997 ND 72, ¶ 10, 562 N.W.2d 390; Alvarez v. Carlson, 524 N.W.2d 584, 590 (N.D. 1994)) (emphasis added). In Gietzen, the Court considered the custodial pare......
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Kelly v. Kelly, No. 20010165.
...if the reviewing court is left with a definite and firm conviction a mistake has been made. N.D.R.Civ.P. 52(a); Mosbrucker v. Mosbrucker, 1997 ND 72, ¶ 5, 562 N.W.2d [¶ 14] The test for changing the custody of a child is set forth in N.D.C.C. § 14-09-06.6(6): The court may modify a prior cu......
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Tank v. Tank, No. 20030111.
...§ 14-09-06.6. Volz, at ¶ 11 (citing Kelly, at ¶ 19; Gietzen v. Gietzen, 1998 ND 70, ¶ 10, 575 N.W.2d 924; Mosbrucker v. Mosbrucker, 1997 ND 72, ¶ 10, 562 N.W.2d 390; Alvarez v. Carlson, 524 N.W.2d 584, 590 (N.D.1994)). Generally, frustration of visitation does not alone constitute a signifi......
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Clark v. Clark, No. 20050436.
...if there are persuasive reasons for that preference, persuasive enough to result in a change in custody." Mosbrucker v. Mosbrucker, 1997 ND 72, ¶ 10, 562 N.W.2d 390; see also Volz v. Peterson, 2003 ND 139, ¶ 11, 667 N.W.2d 637. We review a district court's decision whether to allow children......
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Dunn v. Dunn, 20090127.
...change of circumstances." 2002 ND 37, ¶ 19, 640 N.W.2d 38 (citing Gietzen, 1998 ND 70, ¶ 10, 575 N.W.2d 924; Mosbrucker v. Mosbrucker, 1997 ND 72, ¶ 10, 562 N.W.2d 390; Alvarez v. Carlson, 524 N.W.2d 584, 590 (N.D. 1994)) (emphasis added). In Gietzen, the Court considered the custodial pare......
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Kelly v. Kelly, 20010165.
...if the reviewing court is left with a definite and firm conviction a mistake has been made. N.D.R.Civ.P. 52(a); Mosbrucker v. Mosbrucker, 1997 ND 72, ¶ 5, 562 N.W.2d [¶ 14] The test for changing the custody of a child is set forth in N.D.C.C. § 14-09-06.6(6): The court may modify a prior cu......
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Tank v. Tank, 20030111.
...§ 14-09-06.6. Volz, at ¶ 11 (citing Kelly, at ¶ 19; Gietzen v. Gietzen, 1998 ND 70, ¶ 10, 575 N.W.2d 924; Mosbrucker v. Mosbrucker, 1997 ND 72, ¶ 10, 562 N.W.2d 390; Alvarez v. Carlson, 524 N.W.2d 584, 590 (N.D.1994)). Generally, frustration of visitation does not alone constitute a signifi......
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Clark v. Clark, 20050436.
...if there are persuasive reasons for that preference, persuasive enough to result in a change in custody." Mosbrucker v. Mosbrucker, 1997 ND 72, ¶ 10, 562 N.W.2d 390; see also Volz v. Peterson, 2003 ND 139, ¶ 11, 667 N.W.2d 637. We review a district court's decision whether to allow children......