Sweeney v. Kirby

• Decision Date: 11 June 2015
• Docket Number: No. 20140309.,20140309.
• Citation: 864 N.W.2d 464
• Parties: Brian L. SWEENEY, Plaintiff v. Dawn M. KIRBY, Defendant and Appellant.
• Court: North Dakota Supreme Court

864 N.W.2d 464

Brian L. SWEENEY, Plaintiff

v.Dawn M. KIRBY, Defendant and Appellant.

No. 20140309.

Supreme Court of North Dakota.

June 11, 2015.

Brian L. Sweeney, plaintiff; no appearance.

Vanessa R. Berge, Fargo, N.D., for defendant and appellant.

Opinion

KAPSNER, Justice.

[¶ 1] Dawn Kirby appeals from a district court order denying her motion to modify primary residential responsibility of the parties' minor child from Brian Sweeney to her. We affirm, concluding the court's denial of Kirby's motion is not clearly erroneous.

I

[¶ 2] Kirby and Sweeney have one minor child together who was born in 2004. Kirby raised the child until 2011, when Sweeney was granted primary residential responsibility, and Kirby was granted supervised parenting time. In 2012, Kirby moved to modify primary residential responsibility. The district court's order denying the motion without an evidentiary hearing was reversed in Sweeney v. Kirby, 2013 ND 9, 826 N.W.2d 330. After an evidentiary hearing in April 2013, the district court denied Kirby's motion, and the order denying the motion was affirmed in Sweeney v. Kirby, 2013 ND 179, 841 N.W.2d 2.

[¶ 3] In May 2014, Kirby again moved to modify primary residential responsibility, alleging Sweeney's repeated incarcerations created an unsafe environment for the child, and Sweeney's continued interference with her supervised parenting time was not in the best interests of the child. After an evidentiary hearing in July 2014, the district court denied Kirby's motion, concluding she had not proven a material change of circumstances sufficient to modify primary residential responsibility of the child. The court also concluded Kirby failed to prove modification was necessary to serve the best interests of the child.

[¶ 4] Sweeney was incarcerated at the time of both evidentiary hearings, but appeared by telephone. Before the April 2013 hearing, Sweeney was arrested and incarcerated on felony drug and weapons charges. In October 2013, Sweeney was again arrested and incarcerated on felony drug and weapons charges. Those charges were dismissed in state court, and Sweeney was indicted and convicted in federal court for being a felon in possession of a firearm. He was awaiting sentencing at the time of the July 2014 hearing. Sweeney's former wife Naomi Sweeney, who lives with Sweeney and the child, took care of the child while Sweeney was incarcerated.

[¶ 5] Kirby also has a criminal history. She has a conviction for felony theft and a conviction for having sexual relations with a 16–year–old minor. At the time of the July 2014 hearing, she had completed her probation for the sexual offense, and her sexual offender registration level was “low” risk.

II

[¶ 6] Kirby argues the district court erred in denying her motion to modify primary residential responsibility of the parties' minor child. She argues Sweeney's criminal behavior and incarceration create a dangerous environment for the child, she has been denied parenting time and contact with the child, and the court erred in finding the best interest factors weighed in favor of Sweeney retaining primary residential responsibility of the child. She also argues the court applied the incorrect legal standard in its analysis of her motion to modify primary residential responsibility.

[¶ 7] We review a district court's decision on a motion to modify primary residential responsibility as a finding of fact subject to the clearly erroneous standard of review. Krueger v. Tran, 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 we are convinced, based on the entire record, that a mistake has been made.” Id. We do not reweigh the evidence or reassess the credibility of witnesses, and we will not substitute our judgment for a district court's decision on a motion to modify primary residential responsibility merely because we might have reached a different result. Heinle v. Heinle, 2010 ND 5, ¶ 6, 777 N.W.2d 590.

A

[¶ 8] Kirby argues the court applied the incorrect legal standard in its analysis of her motion.

[¶ 9] A party may move to modify primary residential responsibility under N.D.C.C. § 14–09–06.6(5) or N.D.C.C. § 14–09–06.6(6). Section 14–09–06.6(5), N.D.C.C., applies when a motion to modify primary residential responsibility is made within a two-year period following the date of entry of an order establishing primary residential responsibility. Kartes v. Kartes, 2013 ND 106, ¶ 19, 831 N.W.2d 731. Section 14–09–06.6(6), N.D.C.C., applies when a motion to modify primary residential responsibility is made after a two-year period following the date of entry of an order establishing primary residential responsibility. Krueger, 2012 ND 227, ¶ 12, 822 N.W.2d 44.

[¶ 10] Under N.D.C.C. § 14–09–06.6(5), a district court may modify the primary residential responsibility within two years of entry of an order establishing primary residential responsibility if the court finds the modification is necessary to serve the best interests of the child and:

a. The persistent and willful denial or interference with parenting time;

b. The child's present environment may endanger the child's physical or emotional health or impair the child's emotional development; or

c. The residential responsibility for the child has changed to the other parent for longer than six months.

[¶ 11] Under N.D.C.C. § 14–09–06.6(6), a district court may modify the primary residential responsibility after two years 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 interests of the child.

[¶ 12] Under N.D.C.C. § 14–09–06.6(2), “if a motion for modification has been disposed of upon its merits, no subsequent motion may be filed within two years of disposition of the prior motion, except in accordance with subsection 5.” Kirby filed her first motion to modify primary residential responsibility in June 2012, and the order denying her motion was entered in April 2013. Kirby again moved to modify primary residential responsibility in May 2014. Because Kirby's current motion was filed within two years of disposition of her first motion, she was required to file the current motion under N.D.C.C. § 14–09–06.6(5).

[¶ 13] The district court considered Kirby's current motion under N.D.C.C. § 14–09–06.6(6), addressing whether there had been a material change in circumstances since the April 2013 order and whether modification was necessary to serve the best interests of the child. The court concluded Kirby had not proven a material change of circumstances since the April 2013 order, stating “[t]he only new information ... since the prior Order is her completion of probation, and lowering her sexual offender rating.” The court also concluded Kirby failed to prove modification was necessary to serve the best interests of the child.

[¶ 14] In ruling on Kirby's motion, the district court applied the less stringent standard under N.D.C.C. § 14–09–06.6(6), rather than the stricter requirements of N.D.C.C. § 14–09–06.6(5). See Graner v. Graner, 2007 ND 139, ¶¶ 22, 24, 738 N.W.2d 9. Kirby filed her current motion within two years of the April 2013 disposition of her first motion; therefore, under N.D.C.C. § 14–09–06.6(2), an analysis of the motion under N.D.C.C. § 14–09–06.6(5) was required. Although the court erroneously applied the less stringent requirements of N.D.C.C. § 14–09–06.6(6) to Kirby's current motion, this Court “will not set aside a correct result merely because an incorrect, more relaxed standard was applied, if the result is the same under the correct law and reasoning.” State ex rel. D.D. v. G.K., 2000 ND 101, ¶ 6, 611 N.W.2d 179. For reasons discussed below, we conclude the district court's decision was correct under our standard of review. The court's discussion of the best interest factors addressed Kirby's allegations regarding interference with parenting time and the child's present environment.

B

[¶ 15] Kirby argues Sweeney's repeated arrests and incarceration promote an environment dangerous to the child's physical and emotional health. Under N.D.C.C. § 14–09–06.6(5)(b), Kirby must show “[t]he child's present environment may endanger the child's physical or emotional health or impair the child's emotional development.”

[¶ 16] In support of her argument, Kirby cites to three cases discussing incarceration, Interest of N.C.M., D.C.M., and J.J.M., 2013 ND 132, 834 N.W.2d 270; Interest of G.R., 2014 ND 32, 842 N.W.2d 882; and Interest of C.N., 2013 ND 205, 839 N.W.2d 841. In N.C.M., primary residential responsibility was modified after the custodial parent attempted suicide and required services for drug use and psychological issues. 2013 ND 132, ¶¶ 5–7, 834 N.W.2d 270. In G.R., a parent's rights were terminated after the district court found the child was deprived and the deprivation was likely to continue, the parent could not provide stable housing and care for the child, the parent had a lengthy criminal history with multiple periods of incarceration, and the parent consistently showed a disregard for rules. 2014 ND 32, ¶ 4, 842 N.W.2d 882. In C.N., a parent's rights were terminated after the parent was convicted of continuous sexual abuse of a child. 2013 ND 205, ¶ 3, 839 N.W.2d 841.

[¶ 17] Sweeney was convicted in federal court for being a felon in possession of a firearm and was incarcerated while awaiting sentencing at the July 2014 evidentiary hearing on Kirby's motion to modify primary residential responsibility. The district court said Sweeney was also incarcerated at the time of the April 2013 hearing and found Sweeney had not been in the child's life as much as he had before he was incarcerated. The court...