Valeu v. Strube

• Decision Date: 22 January 2018
• Docket Number: No. 20170247,20170247
• Citation: 905 N.W.2d 728
• Parties: Tina R. VALEU, Plaintiff and Appellant v. Ernest STRUBE, Defendant and Appellee
• Court: North Dakota Supreme Court

905 N.W.2d 728

Tina R. VALEU, Plaintiff and Appellant

v.Ernest STRUBE, Defendant and Appellee

No. 20170247

Supreme Court of North Dakota.

Filed January 22, 2018

Jackie M. Stebbins, Bismarck, N.D., for plaintiff and appellant.

Sherry Mills Moore (argued) and Stacy M. Moldenhauer, Bismarck, N.D., for defendant and appellee.

Tufte, Justice.

[¶ 1] Tina Valeu appeals from a second amended judgment denying her motion to modify primary residential responsibility. Valeu argues the district court erred by failing to make an original determination of primary residential responsibility or, alternatively, by failing to find a material change of circumstances exists. We affirm, concluding the district court properly applied the law and its decision is not clearly erroneous.

I

[¶ 2] Valeu and Ernest Strube were married in 2009 and have one minor child together. The parties divorced in 2013. Before the divorce trial, the parties presented a stipulated parenting plan in which the parties agreed Strube would have primary residential responsibility for the child but they would have equal parenting time until the child started kindergarten in fall 2016, at which time Valeu's parenting time would be reduced to every other weekend during the school year and extended parenting time in the summer. The district court adopted the parties' stipulation and incorporated it into the final judgment.

[¶ 3] In January 2016, Valeu moved to modify the judgment, requesting the court award her primary residential responsibility for the child. She argued the court was required to make an original determination about primary residential responsibility because the parties agreed to a parenting plan in which they would exercise joint residential responsibility. She also argued there were numerous material changes in the parties' circumstances, including that Strube denied the child medical care, her health and well-being increased while the child's condition declined, and the child resided with her significantly more days than he resided with Strube.

[¶ 4] The district court found Valeu established a prima facie case for modification of primary residential responsibility and granted an evidentiary hearing. A parenting investigator was appointed, and the investigator filed a report.

[¶ 5] A three-day evidentiary hearing was held, and numerous witnesses testified. Valeu argued that it is in the child's best interests for her to have primary residential responsibility and that she proved a material change of circumstances, including that she is a victim of domestic violence from Strube, he continues to be verbally abusive to her, he berates her if she disagrees with him, and he refuses to respect her concerns and her parenting time.

[¶ 6] The district court denied Valeu's motion. The court found Strube had been emotionally abusive in the past but his behavior did not meet the statutory definition of domestic violence. The court also found this was a "high conflict divorce" and the parties do not communicate ideally, but the parties' behavior did not rise to the level of a material change. The court found Valeu failed to meet her burden to prove there had been a material change of circumstances. The court amended the terms of the parenting plan to clarify its terms and address the conflict between the parties. A second amended judgment was entered.

II

[¶ 7] Valeu argues the district court erred by failing to make an original determination about which parent should be awarded primary residential responsibility. She contends the court was not required to find there was a material change in circumstances to grant her motion, because the parties stipulated to the prior parenting plan and the court had never made a decision based on the child's best interests.

She alternatively asserts the court erred by denying her motion, because there was a material change in circumstances and the best interest factors favored awarding her primary residential responsibility.

[¶ 8] The district court's ultimate decision whether to modify primary residential responsibility is a finding of fact, which will not be reversed on appeal unless it is clearly erroneous. Haag v. Haag , 2016 ND 34, ¶ 7, 875 N.W.2d 539. A finding of fact is clearly erroneous if there is no evidence to support it, if it is induced by an erroneous view of the law, or if we are convinced, on the basis of the entire record, that a mistake has been made. Id. "Under the clearly erroneous standard, we do not reweigh the evidence nor reassess the credibility of witnesses, and we will not retry a [residential responsibility] case or substitute our judgment for a district court's ... decision merely because we might have reached a different result." Mowan v. Berg , 2015 ND 95, ¶ 5, 862 N.W.2d 523 (quoting Wolt v. Wolt , 2010 ND 26, ¶ 7, 778 N.W.2d 786 ).

[¶ 9] The district court may modify primary residential responsibility more than two years after entry of a prior 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.

N.D.C.C. § 14–09–06.6(6). The court must first decide whether there has been a material change of circumstances, and if the court finds there has been a material change, it must then decide whether modification is necessary to serve the child's best interests. Vining v. Renton , 2012 ND 86, ¶ 14, 816 N.W.2d 63. The moving party has the burden to prove that a material change in circumstances exists and that modification is necessary to serve the child's best interests. Haag , 2016 ND 34, ¶ 8, 875 N.W.2d 539.

[¶ 10] The parties stipulated Strube would have primary residential responsibility of the child, and the district court adopted the stipulation and incorporated it in the judgment. The 2013 judgment, incorporating the parties' stipulation, was an order establishing primary residential responsibility. We reject the argument that when a court enters an initial order based on stipulated facts, the first motion to modify triggers an automatic requirement that residential responsibility be determined on contested facts without regard to whether there has been a material change. Under N.D.C.C. § 14–09–06.6(6), Valeu was required to prove both that a material change in circumstances had occurred since that order and that modification was necessary to serve the child's best interests for the district court to grant her motion and modify primary residential responsibility. The court did not err by requiring that Valeu prove a material change in circumstances.

[¶ 11] "A material change in circumstances is ‘an important new fact that was not known at the time of the prior custody decree.’ " Haag , 2016 ND 34, ¶ 9, 875 N.W.2d 539 (quoting Lechler v. Lechler , 2010 ND 158, ¶ 9, 786 N.W.2d 733 ). Whether an alleged change in circumstances is material depends on the circumstances of the case. Forster v. Flaagan , 2016 ND 12, ¶ 11, 873 N.W.2d 904. "[I]f the previous order establishing residential responsibility was based upon the parties' stipulation and not consideration of the evidence and court-made findings, the court must consider all relevant evidence in deciding whether to modify primary residential responsibility, including pre-divorce conduct and activities the court was not aware of at the time of the prior order." Haag , at ¶ 9.

[¶ 12] The district court found Valeu did not meet her burden to prove a material change. The court considered evidence about the parties' pre-divorce conduct and said it did not make findings in the prior order about the parties' mental health or how that would impact the determination of the best interest factors because the parties reached a stipulation on residential responsibility, but it was aware of those allegations at the time the parenting agreement was filed and it was aware of Valeu's allegations that Strube perpetrated domestic violence. The court made specific findings about one instance of emotional abuse that occurred in April 2011 before the divorce. The court found Strube's behavior during that incident did not meet the statutory definition of domestic violence or trigger the presumption under N.D.C.C. § 14–09–06.2(1)(j) because Valeu did not allege a resulting serious bodily injury or the use of a dangerous weapon, and no incident occurred within a time reasonably proximate to the current proceedings. The court also found the parties have been arguing about each other's mental health since the beginning of the divorce and that was not an issue that presented a material change in circumstances. The court found the parties did not have equal parenting time and Valeu had the child for more nights than Strube did between May 2013 and January 2016, but it was not a material change in circumstances that would justify modifying residential responsibility. The court also found the parties' communication with each other was not ideal, but their behavior did not rise to the level of a material change.

[¶ 13] Valeu argues the court erred by failing to find a material change in circumstances. She alleges there were numerous material changes, including that she had the child more than fifty percent of the time and that Strube committed domestic violence.

[¶ 14] An act of domestic violence may constitute a material change in circumstances. See O'Hara v. Schneider , 2017 ND 53, ¶ 8, 890 N.W.2d 831 (stating an act of domestic violence committed after the initial order is always a material change in circumstances). The best interest factors include a rebuttable presumption that a parent who has committed domestic violence may not be awarded residential responsibility for the child, stating:

If the court finds credible evidence that domestic violence has occurred, and there exists

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