Topolski v. Topolski

• Decision Date: 03 April 2014
• Docket Number: No. 20130276.,20130276.
• Citation: 844 N.W.2d 875,2014 ND 68
• Parties: Thomas Francis TOPOLSKI, Plaintiff and Appellee v. Jean Evonne TOPOLSKI, Defendant and Appellant.
• Court: North Dakota Supreme Court

844 N.W.2d 875

2014 ND 68

Thomas Francis TOPOLSKI, Plaintiff and Appellee

v.Jean Evonne TOPOLSKI, Defendant and Appellant.

No. 20130276.

Supreme Court of North Dakota.

April 3, 2014.

Theresa L. Kellington, Bismarck, ND, for plaintiff and appellee.

Thomas M. Jackson, Bismarck, ND, for defendant and appellant.

KAPSNER, Justice.

[¶ 1] Jean Evonne Topolski appeals from an amended judgment granting Thomas Francis Topolski primary residential responsibility over the couple's minor child. We affirm the district court judgment.

I

[¶ 2] Jean and Thomas Topolski entered into a stipulated divorce agreement. On March 18, 2010, judgment was entered based on their stipulation. The divorce judgment gave primary residential responsibility of the couple's minor child, K.T., born in 2008, to Jean Topolski and gave Thomas Topolski parenting time. On December 7, 2012, Thomas Topolski moved to amend the judgment requesting that primary residential responsibility for the child be changed from Jean Topolski to Thomas Topolski, that a parenting schedule be established for Jean Topolski, that a child support obligation be established for Jean Topolski, and that Thomas Topolski's child support obligation be terminated.

[¶ 3] The district court found that Thomas Topolski had established a prima facie case, and an evidentiary hearing was held. On July 8, 2013, the district court filed its findings of fact, conclusions of law, and order for amended judgment. On July 30, 2013, the district court filed an amended judgment transferring primary residential responsibility over the child to Thomas Topolski, setting a parenting time schedule for Jean Topolski, terminating Thomas Topolski's child support obligation, and ordering the parties to submit applicable child support calculations to determine Jean Topolski's child support obligation. Jean Topolski filed a request for reconsideration, which was denied by the district court.

[¶ 4] On August 23, 2013, a second amended judgment was filed, which adopted Thomas Topolski's proposed child support calculations and established the child support obligation for Jean Topolski. Jean Topolski appeals only the July 8, 2013 findings of fact, conclusions of law, and order for amended judgment and July 30, 2013 amended judgment modifying primary residential responsibility.

II

[¶ 5] Under N.D.C.C. § 14–09–06.6(6), when a party seeks modification of a primary residential responsibility order more than two years after the original order was entered, a district court may modify the 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.

When evaluating the best interests of the child, the court must consider, when applicable, the factors listed at N.D.C.C. § 14–09–06.2(1).

[¶ 6] On appeal, Jean Topolski argues the district court erred in failing to articulate the best interest factors in its decision. “A district court's decision whether to modify primary residential responsibility is a finding of fact which will not be reversed on appeal unless clearly erroneous.” Glass v. Glass, 2011 ND 145, ¶ 11, 800 N.W.2d 691 (citation omitted). However, Jean Topolski is not challenging the district court's findings; she is arguing that the district court failed to meet the standard, established by this Court in prior cases, for articulating those findings in its findings of fact, conclusions of law, and order for amended judgment. She also argues that the district court misapplied the law regarding consideration of the parties' pre-divorce conduct. Jean Topolski does not challenge the district court's finding that a material change in circumstances occurred.

III

[¶ 7] Jean Topolski argues the district court erred in failing to articulate the best interest factors in its decision. A district court has substantial discretion in making a determination concerning primary residential responsibility, but the court must consider all of the applicable best interest factors in reaching that determination. Wolt v. Wolt, 2010 ND 26, ¶ 9, 778 N.W.2d 786. This Court has previously concluded a district court need not make separate findings for each best interest factor or consider irrelevant factors, and a court's findings regarding one best interest factor may be applicable to other factors. See Interest of S.R.L., 2013 ND 32, ¶ 7, 827 N.W.2d 324. However, “the court's findings must contain sufficient specificity to show the factual basis for the [primary residential responsibility] decision.” Wolt, 2010 ND 26, ¶ 9, 778 N.W.2d 786 (citation omitted). “A court's findings of fact are sufficient if they afford a clear understanding of the court's decision and assist the appellate court in conducting its review.” Dieterle v. Dieterle, 2013 ND 71, ¶ 7, 830 N.W.2d 571 (citation omitted).

[¶ 8] In this case, the district court's findings of fact, conclusions of law, and order for amended judgment included a five and a half page findings of fact section analyzing the testimony and exhibits offered at the evidentiary hearing. The district court concluded, “In reviewing all the factors set out in § 14–09–06.2 of the North Dakota Century Code, as those factors relate to the facts in this case, the best interest of [the child] mandates a change in residential responsibility from Defendant, Jean [Topolski], to Plaintiff, Thomas Topolski.” While the district court did not specifically reference each of the best interest factors as they related to its factual findings, the findings were sufficiently detailed to allow this Court to understand the basis for the district court's primary residential responsibility decision:

[¶ 9] The district court found:

The minor child, K.T., fell sometime in the summer of 2010 resulting in a cracked tooth. One of K.T.'s teeth was turning black. K.T. was experiencing serious ear aches as a result of her deteriorating dental status. Pictures of the condition of K.T.'s teeth were admitted into evidence at time of trial as Plaintiff's Exhibit Number 1. As the pictures clearly depict, the child's teeth have been severely neglected. Jean has not taken the child to see a dentist for annual checkups and/or preventative dental care.

At the time of the hearing on Thomas's Motion for Interim Order in January of 2013, Jean testified that she had taken K.T. to see a dentist. She testified at said hearing that she took K.T. to Garrison Dental. Plaintiff's Exhibit Number 3 proves directly to the contrary. Garrison Dental specifically indicated that K.T. had not been seen in their office for any dental reason.

Plaintiff's Exhibit Number 2 is a letter from Dakota Kids Dentistry which indicates that K.T. was scheduled to see someone at Dakota Kids Dentistry on April 12, 2011. Jean called and rescheduled it until August 2, 2011. Jean called again and rescheduled until August 17, 2011. Jean cancelled that appointment without notice and without rescheduling.

Plaintiff's Exhibit Number 6 is an Assessment from MCH/Health Tracks to Jean, where they specifically recommended “initiating annual dental exams.” This assessment was dated February 2, 2011.

At the hearing, when Jean was cross examined about her previous testimony at the interim hearing, in January, Jean again indicated that she did, in fact, take K.T. to see a dentist, but clarified that it was during a scheduled dental appointment for Jean and not the child. While they were at Jean's dental appointment, she asked the dentist to look at K.T.'s teeth. No dental records were produced to support this.

Thomas took K.T. to a dental specialist to exam[ine] and treat K.T.'s teeth. K.T. had three cavities. The cavities were filled. Defendant's Exhibit Number B shows that Jean took K.T. to a dentist on February 20, 2013. Jean has not, however, taken measures to prevent any further dental problems, to address K.T.'s ongoing cleaning or other preventative measures. Additionally, it would not have cost Jean anything to take K.T. in for most dental work. Thomas has dental insurance that covers expenses such as cleaning, x-rays, and cavities. This is as set forth in Plaintiff's Exhibit Number 4.

K.T. experienced a rash commencing at approximately the beginning of the year 2012. Plaintiff's Exhibit Numbers 5 and 6, recent pictures of K.T., show the condition and severity of this rash. Jean took K.T. to the doctor on February 1, 2012, for the rash. The recommended plan was “dry skin care, avoidance of nonspecific irritants, 1% hydrocortisone. If that is ineffective, mom has prescription for 2.5% hydrocortisone and if that is ineffective, she is going to call and get a prescription for mometasone.” The next doctor visit was June 4, 2012. The child was diagnosed with molluscum contagiosum. The doctor recommended a recheck in next 3 weeks if not better as well as close monitoring on an outpatient basis. The next visit to the doctor was not until November 29, 2012, five months later. There were lesions of molluscum contagiosum over the buttocks and upper thighs.

Andrea Topolski, wife of Thomas, then took K.T. to Dr. Peterson on January 4, 2013. K.T. had molluscum all over both buttocks, behind both knees, more behind the right thigh than the left and couple in her left inguinal area, one on her mons and one lesion on her left inner thigh and a couple on her feet. The doctor treated 12–15 of these lesions with cantharidin plus. The doctor reflected in his notes, Plaintiff's Exhibit Number 7, that “we see a lot of this in the winter because of dry skin, skin being not intact so virus can set up shop. Recommended moisturizing and keeping skin as hydrated as possible to prevent this was reoccurring.”

Dr. Peterson's treatment of chemically cauterizing 12–15 of the lesions using cantharidin was to force...