Stanhope v. Phillips-Stanhope, No. 20070137.

• Court: United States State Supreme Court of North Dakota
• Writing for the Court: Maring
• Citation: 2008 ND 61,747 N.W.2d 79
• Parties: Edwin L. STANHOPE, Plaintiff and Appellant v. Heather J. PHILLIPS-STANHOPE, Defendant and Appellee.
• Decision Date: 27 March 2008
• Docket Number: No. 20070137.

747 N.W.2d 79 2008 ND 61 Edwin L. STANHOPE, Plaintiff and Appellant
v.
Heather J. PHILLIPS-STANHOPE, Defendant and Appellee. No. 20070137. Supreme Court of North Dakota. March 27, 2008.

[747 N.W.2d 80]

Monte L. Rogneby, Vogel Law Firm, Bismarck, N.D., for plaintiff and appellant.

[747 N.W.2d 81]

Paul M. Probst, Probst Law Firm, Minot, N.D., for defendant and appellee.

MARING, Justice.

[¶ 1] Edwin L. Stanhope appeals from an order denying his motion to change custody of his two minor sons from their mother, Heather J. Phillips-Stanhope, to himself. We conclude the district court's finding that there has not been a material change of circumstances for a change of custody is not clearly erroneous. We affirm.

I.

[¶ 2] The parties, who had been living in Minot, were divorced in February 2004. Phillips-Stanhope was granted physical custody of the six and seven year-old children and Stanhope was granted reasonable and liberal visitation. Phillips-Stanhope continues to reside in Minot with the children. Stanhope moved to Bismarck after the parties separated. Stanhope remarried in September 2005 and currently resides in Lincoln. He adopted his wife's adult daughter who does not live with the couple.

[¶ 3] In June 2006, Stanhope moved to change custody of the children. Stanhope alleged the children were not receiving proper "medical and health care" while in Phillips-Stanhope's care. He contended the children have "many behavior problems in school" and were seeing licensed clinical social workers in Bismarck, one of whom believed the older child had Asperger's syndrome. He contended Phillips-Stanhope is unable to manage her household finances, and the children lack adult supervision while in her care because she works at Minot State University during the day and waitresses at a bar several nights a week. He also expressed concern "about the type of nutrition being provided to the boys." Phillips-Stanhope responded with an affidavit disputing Stanhope's allegations. The district court determined Stanhope had established a prima facie case for change of custody, entitling him to a hearing under N.D.C.C. § 14-09-06.6. The court also ordered the parties to select an agreed upon mental health professional to test the oldest child for Asperger's syndrome.

[¶ 4] Following an evidentiary hearing, the district court denied Stanhope's motion to change custody, finding that a material change of circumstances had not occurred since the initial divorce decree had been entered. The court accepted the opinion of the expert agreed upon by the parties that the oldest son did not have Asperger's syndrome. The court further found that although Stanhope's circumstances may have improved in Lincoln, he had failed to establish that there was a significant deterioration in the circumstances of Phillips-Stanhope and the children in Minot.

II

[¶ 5] Stanhope argues the district court erred in finding there had not been a material change in circumstances since the parties' divorce.

[¶ 6] "Before custody may be modified after a two-year period following a prior custody order, the district court must consider whether a material change in circumstances has occurred and, if the court finds a material change in circumstances, the court must decide whether custody modification is necessary to serve the best interests of the child." Dietz v. Dietz, 2007 ND 84, ¶ 9, 733 N.W.2d 225; see also N.D.C.C. § 14-09-06.6(6). Not every change in circumstances is sufficiently significant to rise to the level required under N.D.C.C. § 14-09-06.6. Seibel v. Seibel, 2004 ND 41, ¶ 5, 675 N.W.2d 182. We have defined a material change in circumstances as "important new facts

747 N.W.2d 82

that were unknown at the time of the initial custody decree." In re Thompson, 2003 ND 61, ¶ 7, 659 N.W.2d 864; see also N.D.C.C. § 14-09-06.6(6)(a). "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." Selzler v. Selzler, 2001 ND 138, ¶ 21, 631 N.W.2d 564. "Improvements in a noncustodial parent's situation `accompanied by a general decline in the condition of the children with the custodial parent over the same period' may constitute a significant change in circumstances." Kelly v. Kelly, 2002 ND 37, ¶ 20, 640 N.W.2d 38 (quoting Hagel v. Hagel, 512 N.W.2d 465, 468 (N.D. 1994)).

[¶ 7] A district court's decision whether to change custody is a finding of fact subject to the clearly erroneous standard of review. Clark v. Clark, 2006 ND 182, ¶ 18, 721 N.W.2d 6. 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. Id.

A

[¶ 8] Stanhope contends the court erred in finding that the oldest son did not suffer from Asperger's syndrome or any other form of autism. He claims Phillips-Stanhope's refusal to accept that the oldest son has Asperger's syndrome results in her being unable to properly care for his needs. Stanhope presented the deposition testimony of Dean Beck, a licensed clinical social worker who observed the children when they were in Bismarck. Beck did not know if the oldest son had Asperger's syndrome, Stanhope also presented the testimony of Tim Gienger, a licensed clinical social worker who graduated with a master's degree in 2004. Gienger had not performed any diagnostic testing but diagnosed the oldest son with Asperger's syndrome.

[¶ 9] The district court found the opinion of the licensed psychologist the parties selected to examine the oldest son to be the most persuasive:

The parties selected Dr. Dion Darveaux, Minot, North Dakota. Dr. Darveaux has a Ph.D. in psychology, and has been in private practice in Minot for many years. Darveaux...