Roberson v. Roberson, 20040125.
| Court | United States State Supreme Court of North Dakota |
| Citation | 688 N.W.2d 380,2004 ND 203 |
| Docket Number | No. 20040125.,20040125. |
| Parties | Trinh Thi (Leelee) ROBERSON, Plaintiff and Appellee v. Rowdy T. ROBERSON, Defendant and Appellant. |
| Decision Date | 02 November 2004 |
688 N.W.2d 380
2004 ND 203
v.
Rowdy T. ROBERSON, Defendant and Appellant
No. 20040125.
Supreme Court of North Dakota.
November 2, 2004.
Charles R. Isakson (on brief), Chapman and Chapman, P.C., Bismarck, N.D., for plaintiff and appellee.
MARING, Justice.
[¶ 1] Rowdy Roberson ("Roberson") appeals from a trial court amended judgment granting custody of his and Leelee Rath's1 ("Rath"), two minor children to Rath. We affirm.
I
[¶ 2] Roberson and Rath's five-year marriage ended in 2001. The couple has two children, Taylor, age 7, and Lily Anne, age 3. The terms of their divorce stipulated a joint custody arrangement, with the couple alternating custody of the children each week and holiday. In July 2003, Roberson filed a motion for a change of custody, requesting that he be granted full custody of the children. Roberson claimed that Rath was not properly caring for the children and that she was not exhibiting proper concern for their well-being and safety. In December 2003, Rath responded with a counter-motion requesting that a change of custody be granted in her favor. An evidentiary hearing was held where affidavits and testimony in support of both parties were received. The trial court granted full custody to Rath, finding a material change in circumstances necessitating a change of custody had occurred. Specifically, the court found Roberson had failed to comply with the terms of the original custody arrangement, attempted to willfully alienate the minor children from Rath, and a change in custody in favor of Rath was necessary to promote
II
[¶ 3] Roberson argues on appeal that the trial court erred in finding that the best interests of the children were served by granting Rath full custody. Roberson contends that had the trial court applied his version of the facts to the best interests and welfare factors contained in N.D.C.C. § 14-09-06.2, custody would have been awarded to him.
III
[¶ 4] A party seeking modification of a custody order bears the burden of showing a change in custody is required, and the trial court's decision on the issue is a finding of fact subject to the clearly erroneous standard of review. See Seibel v. Seibel, 2004 ND 41, ¶ 5, 675 N.W.2d 182; Damron v. Damron, 2003 ND 166, ¶ 5, 670 N.W.2d 871; Lanners v. Johnson, 2003 ND 61, ¶ 4, 659 N.W.2d 864; Kelly v. Kelly, 2002 ND 37, ¶ 13, 640 N.W.2d 38 (citing Anderson v. Resler, 2000 ND 183, ¶ 8, 618 N.W.2d 480). A finding of fact is clearly erroneous if there is no evidence to support it, if the finding is induced by an erroneous view of the law, or 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 390.
IV
[¶ 5] Section 14-09-06.6(6), N.D.C.C., provides:
The court may modify a prior custody order after the two-year period following the date of entry of an order establishing custody 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.
[¶ 6] Once a motion for change of custody has been made, the trial court must decide if a prima facie case warranting an evidentiary hearing has been established. Section 14-09-06.6(4), N.D.C.C., outlines the methodology a court should utilize in considering a motion for change of custody. It reads as follows:
A party seeking modification of a custody order shall serve and file moving papers and...
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