State v. Leverington

• Decision Date: 25 September 2013
• Docket Number: No. 20130026.,20130026.
• Citation: 2013 ND 173,837 N.W.2d 342
• Parties: STATE of North Dakota, COUNTY OF CASS, ex rel., Maria Janelle SEIBOLD, and K.C.S., n/k/a K.S.L. a minor child, Plaintiffs Maria Janelle Seibold, Appellant v. Paul Ronald LEVERINGTON, Defendant and Appellee.
• Court: North Dakota Supreme Court

837 N.W.2d 342

2013 ND 173

STATE of North Dakota, COUNTY OF CASS, ex rel., Maria Janelle SEIBOLD, and K.C.S., n/k/a K.S.L. a minor child, Plaintiffs

Maria Janelle Seibold, Appellant

v.Paul Ronald LEVERINGTON, Defendant and Appellee.

No. 20130026.

Supreme Court of North Dakota.

Sept. 25, 2013.

Julie A. Oster, Fargo, N.D., for appellant.

Donavin L. Grenz, Linton, N.D., for defendant and appellee.

VANDE WALLE, Chief Justice.

[¶ 1] Maria Seibold appealed from a second amended judgment entered after the district court denied her motion to change primary residential responsibility of their minor child from Paul Leverington to her. We conclude that the district court did not clearly err in denying Seibold's motion to modify primary residential responsibility and did not clearly err in its award of parenting time. We affirm.

I

[¶ 2] Seibold and Leverington were never married and have one child together, K.S.L., born in 2004. In 2006, a judgment was entered finding Leverington is K.S.L.'s natural father, awarding Seibold sole decisionmaking responsibility and primary residential responsibility for the child, and awarding Leverington parenting time. In 2009, Leverington moved to modify primary residential responsibility. After a hearing, the district court found there had been a material change in circumstances and that it was in the child's best interests to modify primary residential responsibility. The court awarded Leverington sole decisionmaking responsibility and primary residential responsibility for the child and awarded Seibold parenting time, concluding the statutory best interest factors favored Leverington. In reaching its conclusions, the court found that K.S.L. had primarily resided with Seibold's parents, that Seibold had used child support payments for her own benefit, and that Seibold's contact and visitation with K.S.L. had been “sporadic,” seeing the child as little as four times in 2008. The court also found that Seibold had restricted and limited Leverington's parenting time with K.S.L. and “secreted the fact” the child was being substantially raised and supported by her parents. The court found the best interest factors concerning the ability to provide for the child's needs and stability of the child's environment favored Leverington. An amended judgment was entered in September 2009, which was not appealed.

[¶ 3] In March 2011, Seibold moved for a second amended judgment and to hold Leverington in contempt. Seibold also requested the court award her additional parenting time, award the parties' joint decisionmaking responsibility for the child, and order the parties to use a parenting time coordinator to settle disputes. Seibold requested the court find Leverington in contempt for not allowing her access to information about the child and reasonable access to the child by telephone. She also requested the court award her compensatory parenting time and attorney's fees for bringing the contempt motion. Seibold filed an affidavit in support of her motions and requested the court to set a date for an evidentiary hearing on her motions.

[¶ 4] The district court subsequently denied Seibold's motions without holding an evidentiary hearing, denying both her motion for a second amended judgment and to hold Leverington in contempt. Seibold appealed, and in State ex rel. Seibold v. Leverington, 2012 ND 25, ¶ 21, 812 N.W.2d 460, a majority of this Court reversed the district court's summary denial of Seibold's motions and remanded. This Court held that Seibold was entitled to a hearing on her motions to hold Leverington in contempt and to modify parenting time and that the district court had erred in denying Seibold's motions without waiting for expiration of the time for her to schedule and notice a hearing. Id. We remanded this case for further proceedings in the district court. Id.

[¶ 5] On remand, Leverington moved the district court in June 2012 for supervised parenting time for Seibold, which the court denied on an ex parte interim basis but considered during the subsequent hearings. Leverington also moved the court to modify the amended judgment to prohibit Seibold and her parents from visiting K.S.L. at school, except during extracurricular activities open to the general public. Leverington also moved to modify the amended judgment to require all exchanges of K.S.L. be supervised and for Seibold to pay her share of costs for supervised parenting time and exchanges. Leverington also moved the court to hold Seibold in contempt for failing to reimburse him for medical expenses, to order Seibold to submit to a parental capacity evaluation, to not allow Seibold's mother to have unsupervised visitation with K.S.L. unless she completed a parental capacity evaluation, and to award him attorney's fees and costs.

[¶ 6] In July 2012, Seibold moved the district court to award primary residential responsibility to her and to impose sanctions against Leverington for bringing the ex parte motion and for failing to cooperate in discovery. In July and August 2012, the district court held evidentiary hearings on the parties' pending motions. The court heard testimony from a number of witnesses, including Seibold, Leverington, licensed psychologists, K.S.L.'s daycare providers, a school counselor, in addition to friends and family. The parties also stipulated that affidavits and exhibits filed with the court before the hearing would be part of the record. Additionally, at the close of evidence, Leverington withdrew his motion for supervised parenting time for Seibold with K.S.L., and the court deemed his motion for supervised parenting time for Seibold's mother withdrawn because no evidence had been introduced regarding the motion.

[¶ 7] In November 2012, the district court issued its memorandum opinion and order, deciding the various pending motions and directing entry of a second amended judgment. The court ultimately denied Seibold's motion for primary residential responsibility, but granted the parties joint decisionmaking responsibility, appointed a parenting coordinator, and awarded Seibold additional parenting time. The court also found Leverington in contempt for denying Seibold reasonable access to K.S.L. via telephone, for withholding certain information regarding K.S.L., and for refusing to pay costs imposed in the prior appeal. The court also found Seibold in contempt for failing to reimburse K.S.L.'s medical expenses in a timely manner. Both parties' requests for attorney's fees as a sanction were denied.

II

A

[¶ 8] Seibold argues the district court's findings of fact are inconsistent with its conclusions of law and the court erred in not granting her motion to change primary residential responsibility of K.S.L. from Leverington to her.

[¶ 9] “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., provides a two-step process for post-judgment modifications 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.

[¶ 10] The moving party bears the burden of proving a material change in circumstances has occurred. Frison v. Ohlhauser, 2012 ND 35, ¶ 5, 812 N.W.2d 445. “ ‘A material change in circumstances is an important new fact that was not known at the time of the prior custody decree; however, not every change will be sufficient to warrant a change of custody.’ ” Id. at ¶ 6 (quoting Siewert v. Siewert, 2008 ND 221, ¶ 17, 758 N.W.2d 691). “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.” Siewert, at ¶ 17 (quotations omitted).

[¶ 11] If the district court finds there is a material change in circumstances, the court “must [also] find a modification is necessary to serve the child's best interests.” Hageman, 2013 ND 29, ¶ 7, 827 N.W.2d 23. “The court must decide which parent will ‘better promote the [child's] best interests and welfare.’ ” Id. (quoting Marsden v. Koop, 2010 ND 196, ¶ 9, 789 N.W.2d 531). The court must consider the best interest factors under N.D.C.C. § 14–09–06.2(1)(a)–(m):

a. The love, affection, and other emotional ties existing between the parents and child and the ability of each parent to provide the child with nurture, love, affection, and guidance.

b. The ability of each parent to assure that the child receives adequate food, clothing, shelter, medical care, and a safe environment.

c. The child's developmental needs and the ability of each parent to meet those needs, both in the present and in the future.

d. The sufficiency and stability of each parent's home environment, the impact of extended family, the length of time the child has lived in each parent's home, and the desirability of maintaining continuity in the child's home and community.

e. The willingness and ability of each parent to facilitate and encourage a close and continuing relationship between the other parent and the child.

f. The moral fitness of the parents, as that fitness impacts the child.

g. The mental and physical health of the parents, as that health impacts the child.

h. The home, school, and community records of the child and the potential effect of any change.

i. If the court finds by clear and convincing evidence that a child is of sufficient maturity to make a sound...