Schurmann v. Schurmann

• Decision Date: 15 March 2016
• Docket Number: No. 20150206.,20150206.
• Citation: 877 N.W.2d 20
• Parties: Patricia Lynn SCHURMANN, n/k/a Patricia Lynn Heidt, Plaintiff and Appellant v. Ralf Stefan SCHURMANN, Defendant and Appellee.
• Court: North Dakota Supreme Court

877 N.W.2d 20

Patricia Lynn SCHURMANN, n/k/a Patricia Lynn Heidt, Plaintiff and Appellant

v.Ralf Stefan SCHURMANN, Defendant and Appellee.

No. 20150206.

Supreme Court of North Dakota.

March 15, 2016.

Jacey L. Johnston (argued), DeWayne A. Johnston (appeared), and Shay O'Brien (on brief), third-year law student, under the Rule on Limited Practice of Law by Law Students, Grand Forks, N.D., for plaintiff and appellant.

Ward K. Johnson III, Grand Forks, N.D., for defendant and appellee.

SANDSTROM

, Justice.

[¶ 1] Patricia Schurmann, now known as Patricia Heidt, appeals after the district court modified parenting time and child support. She argues the district court failed to properly weigh evidence of domestic violence in increasing Ralf Schurmann's parenting time. She also argues the court should not have reduced child support. We affirm the district court's order regarding parenting time, and reverse and remand the order regarding child support.

I

[¶ 2] In January 2013, Schurmann and Heidt were divorced. The couple has three children. The parties stipulated to the terms of the divorce, and the district court awarded primary residential responsibility and child support to Heidt and parenting time to Schurmann. Under the original divorce judgment, Schurmann was allowed to spend time with the children one time per month for up to seven days in Grand Forks. He was also allowed to spend time with the children two times per year in Arizona, where he resided. His parenting time was to increase incrementally as the children grew older. During his parenting time in Arizona, Heidt was entitled to daily visitation. The judgment required both parents to accompany the children on all flights between North Dakota and Arizona until the youngest child reached the age of 7. This required Schurmann to fly to North Dakota to meet Heidt and the children, fly back to Arizona to exercise parenting time, and then fly again to North Dakota with Heidt and the children at the end of his parenting time in Arizona. Both parties were responsible for their own travel and accommodation expenses and were to split the costs of two trips for the children. Any additional trips were Schurmann's financial responsibility. He was also required to pay $1,600 per month in child support.

[¶ 3] After the divorce, Schurmann moved between cities but continued to reside in Arizona. Heidt and the children moved from Grand Forks to Grafton. Both parties remarried following the divorce.

[¶ 4] In January 2015, Schurmann moved to modify his parenting time and child support obligation. He said there had been a material change in circumstances warranting modification. In a supporting affidavit, he alleged the original parenting plan was impractical, given the parties' different locations; he was being alienated from the children in multiple ways; Heidt interfered during his parenting time; and the children were not being adequately supervised and cared for while in her home.

[¶ 5] The district court, finding there had been a material change in circumstances warranting modification, increased Schurmann's parenting time and decreased his child support obligation. Heidt appealed.

[¶ 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, § 6, and N.D.C.C. § 28–27–01.

II

[¶ 7] On appeal, Heidt argues the district court erred by increasing Schurmann's parenting time.

[¶ 8] A district court's decision regarding parenting time is a finding of fact and is subject to the clearly erroneous standard of review. Capes v. Capes, 2015 ND 254, ¶ 6, 870 N.W.2d 448

. "A finding of fact is clearly erroneous if it is induced by an erroneous view of the law, if no evidence exists to support it, or if, upon review of the entire record, this Court is left with a definite and firm conviction a mistake has been made." Id. After an initial award of primary residential responsibility, awards of parenting time are governed by N.D.C.C. § 14–05–22(2). Simburger v. Simburger, 2005 ND 139, ¶ 13, 701 N.W.2d 880. The district court "shall grant such rights of parenting time as will enable the child to maintain a parent-child relationship that will be beneficial to the child, unless the court finds, after a hearing, that such rights of parenting time are likely to endanger the child's physical or emotional health." N.D.C.C. § 14–05–22(2). "A restriction on visitation must be based on a preponderance of the evidence and accompanied by a detailed demonstration of the physical or emotional harm likely to result from visitation." Wigginton v. Wigginton, 2005 ND 31, ¶ 9, 692 N.W.2d 108.

[¶ 9] Heidt argues the district court failed to properly weigh evidence of domestic violence in increasing Schurmann's parenting time. She argues the original parenting plan included restrictions because of his propensity to act violently, and the district court misapplied the law by expanding his parenting time without clear and convincing evidence that the domestic violence presumption had been rebutted or that increasing his parenting time was in the children's best interests.

[¶ 10] Heidt relies on this Court's reasoning in

Berg v. Berg, 2000 ND 36, ¶ 8, 606 N.W.2d 895

, stating that under N.D.C.C. § 14–05–22, when the trial court finds domestic violence has occurred, there is a presumption that only supervised visitation will be allowed for the parent who committed the domestic violence. Our decision in Berg, however, was made prior to the 2009 amendment of N.D.C.C. § 14–05–22.

[¶ 11] Under the prior law, a finding of domestic violence triggered a presumption that only supervised visitation should be allowed unless there was a showing by clear and convincing evidence that unsupervised visitation would not endanger the child's physical or emotional health. Berg, 2000 ND 36, ¶ 8, 606 N.W.2d 895

. In 2009, the law was amended and subsection three was removed, thereby also removing the domestic violence presumption as applied to visitation. The current law, as amended, simply states the court "shall grant such rights of parenting time as will enable the child to maintain a parent-child relationship that will be beneficial to the child, unless the court finds, after a hearing, that such rights of parenting time are likely to endanger the child's physical or emotional health." N.D.C.C. § 14–05–22(2). Any prior opinions that fail to recognize this amendment no longer apply in the context of parenting time. The domestic violence presumption that Heidt relies on is created when determining primary residential responsibility under N.D.C.C. § 14–09–06.2(1)(j), but after an initial award of primary residential responsibility has been made, awards of parenting time are governed by N.D.C.C. § 14–05–22(2). Simburger v. Simburger, 2005 ND 139, ¶ 13, 701 N.W.2d 880. This is not to say that domestic violence should not be considered in deciding whether modification of parenting time is in a child's best interests. It is clearly a best interests factor under N.D.C.C. § 14–09–06.2(1)(j). Under the plain language of the statute, however, the presumption is created only in the context of determining primary residential responsibility. N.D.C.C. § 14–09–06.2(1)(j) ("If the court finds credible evidence that domestic violence has occurred ... this combination creates a rebuttable presumption that a parent who has perpetrated domestic violence may not be awarded residential responsibility for the child.") (emphasis added). The statute makes no mention regarding the presumption and parenting time.

[¶ 12] Here Schurmann was not seeking residential responsibility of his children but rather was seeking a modification of his current parenting time. "Visitation should be restricted only upon a showing by a preponderance of the evidence that unrestricted visitation is likely to endanger the child's physical or emotional health." Paulson v. Paulson, 2005 ND 72, ¶ 21, 694 N.W.2d 681

(citing Wigginton v. Wigginton, 2005 ND 31, ¶ 11, 692 N.W.2d 108 ). After the initial determination of residential responsibility, the standard is similar to that for a modification of residential responsibility. Simburger, 2005 ND 139, ¶ 13, 701 N.W.2d 880. "The moving party bears the burden of establishing that a significant change of circumstances has occurred since the prior visitation order and that it is in the best interests of the child to modify the order." Id. A material change of circumstances means important new facts that were unknown at the time of a prior parenting time order. Capes v. Capes, 2015 ND 254, ¶ 7, 870 N.W.2d 448.

[¶ 13] In this case, the district court found a material change in circumstances had occurred. Specifically, the court found both parties had remarried since the initial divorce and Heidt had moved with the children from Grand Forks to Grafton. The court also noted both parties had acknowledged the original parenting provisions were not working in the children's best interests. This Court has recognized that a move by a parent may constitute a material change in circumstances. Jensen v. Jensen, 2013 ND 144, ¶ 15, 835 N.W.2d 819

. An environment that endangers the child's physical or emotional health is considered a material change in circumstances. Glass v. Glass, 2011 ND 145, ¶ 13, 800 N.W.2d 691. Conflict and lack of agreement between parents regarding the initial parenting plan may also constitute a material change in circumstances warranting modification of parenting time. Hoverson v. Hoverson, 2015 ND 38, ¶ 22, 859 N.W.2d 390. Here the district court held:

Both parties recognize limitations in the current parenting time schedules, although for different reasons. The court finds that the current practices are not working for either of them, leaving the children with less than optimal time with Ralf. It also exposes the children to controversies between the parties about parenting time. In addition, the Judgment

...