Regan v. Lervold
| Decision Date | 03 April 2014 |
| Docket Number | No. 20130200.,20130200. |
| Citation | 2014 ND 56,844 N.W.2d 576 |
| Court | North Dakota Supreme Court |
| Parties | Simone REGAN, Plaintiff and Appellee v. John LERVOLD, Defendant and Appellant. |
OPINION TEXT STARTS HERE
Robert G. Ackre, Cando, N.D., for plaintiff and appellee; submitted on brief.
Timothy P. Hill, Fargo, N.D., for defendant and appellant; submitted on brief.
[¶ 1] John Lervold appeals from a district court order denying his motion to modify primary residential responsibility from Simone Regan to himself. We conclude the district court erred as a matter of law in ruling that a material change in circumstances did not exist and in denying Lervold's request for a change of primary residential responsibility. We reverse and remand for further proceedings.
[¶ 2] Simone Regan and John Lervold were married in 2003 in Maryland and subsequently lived in Georgia and California. They have one son, who was nine years of age at the time of the May 2013 hearing in this case. The parties divorced in California after a “lengthy litigious process,” and they agreed to shared parenting time for their minor son, culminating in a May 13, 2010, stipulation and order for custody and visitation, which was entered in the Superior Court of California for the County of Sacramento. By the time the order was entered, Lervold was living in Arizona, and Regan was residing in Rolla, North Dakota. Both parties have remarried.
[¶ 3] Under the May 2010 California court order, Lervold was entitled to parenting time during the school year and primary physical custody in the summer. Each party was entitled to reasonable telephone communication with the minor child and were mandated to purchase a webcam for alternative communication. The parties were awarded joint legal custody, and, as the parent with primary residential responsibility during the school year, Regan was responsible for providing Lervold with school records, meeting notices, and school conference information. The order also required Regan to complete an assessment and medical evaluation by a board-certified psychiatrist within 90 days of the May 2010 order.
[¶ 4] In April 2011, the venue of this case was changed from Sacramento County, California, to Rolette County. In June 2012, in the district court Lervold moved to modify primary residential responsibility. The district court appointed a custody investigator in August 2012, who subsequently completed a report and recommendation in December 2012. The custody investigator's report, in part, concluded the co-parenting arrangement agreed upon by the parties was not working well and the child had suffered from the conflict between the parties.
[¶ 5] In May 2013, Lervold moved the district court for leave to permit telephonic testimony at the evidentiary hearing on his motion. The court denied his request in a May 2013 order and again denied his oral request at the hearing to present witness testimony by telephone. The district court held an evidentiary hearing on May 29 and 30, 2013, and subsequently issued its memorandum opinion and order, denying Lervold's motion to modify primary residential responsibility.
[¶ 6] The district court had jurisdiction under N.D. Const. art. VI, § 8, and N.D.C.C. § 27–05–06. The 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.
[¶ 7] Lervold argues that the district court erred in refusing to consider all evidence, including telephonic testimony. Regarding the form and admissibility of evidence in civil proceedings, N.D.R.Civ.P. 43(a) states:
At trial, the witnesses' testimony must be taken in open court unless a statute, the Rules of Evidence, these rules, or other court rules provide otherwise. For good cause, or on agreement of the parties, and with appropriate safeguards, the court may permit testimony in open court by contemporaneous transmission from a different location. A party must give notice if a witness is unable to testify orally or if testimony by contemporaneous transmission may be necessary.
(Emphasis added.)
[¶ 8] We have explained that the district court has broad discretion in deciding evidentiary matters. Lawrence v. Delkamp, 2008 ND 111, ¶ 7, 750 N.W.2d 452. “This Court will overturn the district court's admission or exclusion of evidence only if the district court has abused its discretion.” Id. A district court abuses its discretion when it acts arbitrarily, unconscionably, or unreasonably, or when its decision is not based on a rational mental process. Id.
[¶ 9] Here the district court denied a request before trial and at trial to permit testimony to be provided telephonically. Lervold apparently sought admission of telephonic testimony from Regan's brothers, who reside in California and Arizona. Although Lervold points out that counsel had previously appeared telephonically for legal argument, the district court declined telephonic testimony, in part, because of a lack of technology in the courtroom. We have said mere convenience of witnesses may not be sufficient to establish “good cause” under the rule and have acknowledged the shortcomings of telephonic testimony. See Lawrence, 2008 ND 111, ¶¶ 9–10, 750 N.W.2d 452 (); see also Gust v. Gust, 345 N.W.2d 42, 45 (N.D.1984) ( ).
[¶ 10] On the basis of our review, we cannot conclude the district court acted arbitrarily, unconscionably, or unreasonably, or that its decision was not based on a rational mental process. We therefore conclude the court did not abuse its discretion in denying Lervold's request to present telephonic testimony at the evidentiary hearing.
[¶ 11] Lervold argues the district court erred by concluding a “material change in circumstances” did not exist in denying his request for a change of primary residential responsibility.
[¶ 12] “A parent may move to modify primary residential responsibility under the framework provided in N.D.C.C. § 14–09–06.6.” Hageman v. Hageman, 2013 ND 29, ¶ 5, 827 N.W.2d 23.Section 14–09–06.6(6), N.D.C.C., requires a two-step process for post-judgment modification of residential responsibility when a motion is filed more than two years after a prior order establishing residential responsibility:
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.
[¶ 13] The party moving for modification has the burden of proving a material change in circumstances has occurred. Seibold v. Leverington, 2013 ND 173, ¶ 10, 837 N.W.2d 342. A “material change in circumstances” is an important new fact not known at the time of the prior custody decree, but not every change will be sufficient to warrant a change of primary residential responsibility. Id. “A party's conduct before the prior residential responsibility decision may be relevant if the prior decision was based on the parties' stipulation and the district court was unaware of the facts at the time of the stipulation.” Krueger v. Tran, 2012 ND 227, ¶ 13, 822 N.W.2d 44.
[¶ 14] “A material change of circumstances can occur if a child's present environment may endanger the child's physical or emotional health or impair the child's emotional development.” Seibold, 2013 ND 173, ¶ 10, 837 N.W.2d 342 (quotations omitted). A “material change in circumstances” may also exist “when one parent attempts to alienate a child's affection for the other parent, when parents are openly hostile towards each other and that hostility negatively affects the child, or when the noncustodial parent's situation improves accompanied by a general decline in the child's condition with the other parent over the same time period.” Krueger, 2012 ND 227, ¶ 14, 822 N.W.2d 44.
[¶ 15] The district court's decision whether to modify residential responsibility is a finding of fact, subject to the clearly erroneous standard of review. Krueger, 2012 ND 227, ¶ 11, 822 N.W.2d 44. A finding is clearly erroneous if it is induced by an erroneous view of the law, there is no evidence to support it, or this Court is convinced, on the basis of the entire record, that a mistake has been made. Id.
[¶ 16] Lervold argues the district court erred in concluding no material change in circumstances had occurred because “numerous events” had transpired since the May 2010 judgment that constitute a material change in circumstances and warrant further evaluation into the best interest factors. Lervold points to four separate child welfare reports to social services made between July 2011 and February 2013. The allegations included the physical grabbing of the minor child by the step-parent in the child's home. Lervold contends that the social worker assigned to investigate the reports acknowledged concerns of inappropriate discipline and asserts that Regan had admitted use of corporal punishment by forcing consumption of tabasco sauce.
[¶ 17] Lervold also says the police had been called to Regan's residence by Regan in January 2013 and the minor child witnessed the event. Lervold argues Regan acknowledged one domestic altercation during which there was yelling and the minor child was in the house. Lervold...
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