Vining v. Renton, 20110233.

Citation816 N.W.2d 63,2012 ND 86
Decision Date03 May 2012
Docket NumberNo. 20110233.,20110233.
PartiesAshley VINING, Plaintiff and Appellant, v. Michael RENTON, Defendant and Appellee.
CourtUnited States State Supreme Court of North Dakota

OPINION TEXT STARTS HERE

James R. Brothers (argued), Fargo, ND, for plaintiff and appellant.

Stacy Mae Moldenhauer (argued) and Suzanne Marie Schweigert (appeared), Bismarck, ND, for defendant and appellee.

CROTHERS, Justice.

[¶ 1] Ashley Vining appeals a district court amended judgment granting Michael Renton's motion to modify primary residential responsibility for their child. Vining argues the district court's decision was clearly erroneous. We affirm.

I

[¶ 2] Vining and Renton are the parents of a 4–year–old child. They never married and have not lived together since the child was born. On April 24, 2008, Vining and Renton filed with the district court a stipulated child custody agreement giving Vining primary residential responsibility subject to Renton's right to exercise parenting time as agreed to by the parties. The agreement provided Renton's parenting time would be supervised by Vining with no overnight parenting time unless the parties otherwise agreed. When the agreement was filed, both Vining and Renton resided in Bismarck, North Dakota. On April 29, 2008, the district court entered a judgment incorporating the stipulated agreement.

[¶ 3] In May 2009, Vining met Matthew Corcione while vacationing in Las Vegas. After returning to North Dakota, Vining began dating Corcione, who lived in Georgia. During the summer of 2009, Corcione made a number of trips to North Dakota to visit Vining and the child. Vining also visited Corcione in Georgia, making some trips with the child and others without the child. Vining and Corcione became engaged in October 2009, and Vining started planning to move to Georgia.

[¶ 4] In January 2010, without informing Renton, Vining took the child to Georgia for several weeks. During that time, Vining and Corcione planned a June wedding, looked at houses and decided Vining and the child would move to Georgia before Vining and Corcione were married. While the child was in Georgia, Vining allowed Renton periodic phone contact with the child but would not tell Renton when she planned to return the child to North Dakota.

[¶ 5] Vining and the child returned to North Dakota in February 2010. While in North Dakota, Vining allowed Renton to visit the child. On March 2, 2010, Vining left North Dakota with the child, intending to move to Georgia to live with Corcione. Vining did not obtain a court order or receive Renton's consent to relocate the child. After leaving North Dakota, Vining notified Renton of the move by leaving a message on his cell phone. When Renton received the message, he contacted Vining and requested she return the child to North Dakota. Vining refused to return the child and refused to give Renton her Georgia address.

[¶ 6] On March 19, 2010, Renton moved the district court to find Vining in contempt for moving the child to another state without permission and for refusing to give Renton the child's current address. That same day, the district court ordered Vining to appear with the child on April 8, 2010, to show cause why she should not be held in contempt. After Vining received the show cause order, Vining and Corcione accelerated their wedding date and were married on April 1, 2010. On April 8, 2010, Vining and the child appeared at the show cause hearing in North Dakota. On April 30, 2010, the district court found Vining in contempt. The district court prohibited Vining from leaving North Dakota with the child more than once per month for no more than five days at a time and ordered Vining and Renton to arrange a parenting schedule, stating Renton was entitled to substantial parenting time, including overnights.

[¶ 7] On April 26, 2010, Vining, who lived with her parents in Jamestown, North Dakota, moved for permission to relocate the child to Georgia. On May 7, 2010, Renton resisted Vining's motion to relocate the child and moved to modify the April 29, 2008 judgment incorporating the stipulated parenting plan. Renton argued the district court should grant him primary residential responsibility and grant parenting time to Vining. Renton stated he currently lived in Fessenden, North Dakota where he was employed as a deputy sheriff and he hoped to get a job with the Bismarck Police Department and move to Bismarck. Renton also requested that the court establish a parenting schedule because he and Vining had been unable to reach an agreement. On May 27, 2010, the district court issued an interim order for parenting time.

[¶ 8] On September 14, 2010, the district court held a hearing on Vining's motion for permission to relocate the child and on Renton's motion to modify primary residential responsibility. On October 5, 2010, Vining moved to withdraw her motion to relocate the child, stating she no longer intended to leave North Dakota but providing no explanation for the change. The interim order for parenting time expired at the end of 2010. On January 7, 2011, the parties informed the district court they could not agree on a continued parenting schedule and submitted proposed parenting schedules. On January 21, 2011, Renton requested the district court adopt a parenting schedule because Vining was not allowing him to exercise parenting time. On January 28, 2011, the district court issued an order implementing Renton's proposed parenting schedule.

[¶ 9] On February 28, 2011, the district court ordered Vining and Renton to submit affidavits addressing Vining's changes in address, employment and marital status. On March 11, 2011, Vining and Renton filed affidavits. Vining stated she lived in Bismarck, was employed full-time as a data specialist at Medcenter One and was no longer married. Vining also stated Renton had introduced the child to his girlfriend and Renton and his girlfriend had purchased a house. Renton agreed with Vining's assertions that she lived in Bismarck and was no longer married but stated he believed Vining had been terminated from Medcenter One. Renton also stated he was employed by the Wells County Sheriff's Office, had applied to be transferred to Bismarck and had purchased a house in Lincoln, North Dakota. On March 18, 2011, Renton and Vining filed response affidavits. Renton stated he was certain Vining was terminated from Medcenter One and believed Vining may be living in Jamestown. Renton included a letter from Medcenter One stating Vining was terminated on February 10, 2011. Vining stated she lived in Bismarck, had opened a daycare in her home and worked on-call for Medcenter One. Regarding Vining's employment at Medcenter One, her affidavit stated:

“I have not been terminated from Medcenter and have no idea why [Renton] would say such a thing. I should have more carefully read my last affidavit. I did not see that my attorney had included hours I worked for Medcenter. Those hours are no longer accurate since I am only working on-call when I don't have [the child].”

[¶ 10] On April 7, 2011, the district court held a hearing to address the affidavits. At the hearing, Vining testified she believed she was on-call for Medcenter One at the time her affidavits were filed and did not know she had been terminated until Renton produced the letter from Medcenter One. Medcenter One's director of business services contradicted Vining's testimony, testifying she believed Vining knew she was terminated. The director testified Vining signed a document stating she was terminated. The director further testified Vining attempted to contest her termination and was told by the director that she was ineligible for rehire.

[¶ 11] On April 18, 2011, the district court issued a memorandum opinion and order for amended judgment granting Vining's motion to withdraw her motion for permission to relocate and granting Renton's motion to modify primary residential responsibility. On June 13, 2011, the district court entered an amended judgment giving Renton primary residential responsibility and incorporating Renton's proposed parenting plan.

II

[¶ 12] Vining argues the district court's decision to change primary residential responsibility from Vining to Renton was clearly erroneous. Renton responds the decision was supported by evidence in the record and was in accordance with the law.

[¶ 13] Section 14–09–06.6(6), N.D.C.C., governing modification of a primary residential responsibility order after two years from the date of entry, provides:

“6. 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.”

Recognizing that N.D.C.C. § 14–09–06.6 essentially codified the two-step approach developed in our case law, we have continued to rely on our prior cases to the extent that those cases are consistent with the statute. Hill v. Weber, 1999 ND 74, ¶ 9, 592 N.W.2d 585. “Where the provisions of the statute differ from previous case law, the statute prevails.” Id. (citing N.D.C.C. § 1–01–06).

[¶ 14] Section 14–09–06.6, N.D.C.C., requires that the district court use a two-part analysis to determine whether to modify primary residential responsibility. First, the district court “must consider whether there has been a material change of circumstances since the original custody decree.” Kelly v. Kelly, 2002 ND 37, ¶ 15, 640 N.W.2d 38 (citing N.D.C.C. § 14–09–06.6(6)(a)). Second, if there has been a material change, the district court “must decide whether a change in custody is necessary to serve the best interests of the child.” Kelly, at ¶ 15 (citing N.D.C.C. § 14–09–06.6(6)(b)). The party...

To continue reading

Request your trial
17 cases
  • Kartes v. Kartes
    • United States
    • United States State Supreme Court of North Dakota
    • June 19, 2013
    ...necessary to serve the best interests of the child, the court must consider the factors set out in N.D.C.C. § 14–09–06.2(1). E.g., Vining v. Renton, 2012 ND 86, ¶ 17, 816 N.W.2d 63;Siewert v. Siewert, 2008 ND 221, ¶ 19, 758 N.W.2d 691. [¶ 35] The district court made extensive and detailed f......
  • Larson v. Larson, 20150178.
    • United States
    • United States State Supreme Court of North Dakota
    • April 12, 2016
    ...reasons for transferring custody substantially outweigh the child's stability with the custodial parent.Seibold, at ¶ 11 (quoting Vining v. Renton, 2012 ND 86, ¶ 17, 816 N.W.2d 63 ).[¶ 11] Here, the district court found a material change in circumstances occurred and neither party challenge......
  • Johnshoy v. Johnshoy
    • United States
    • United States State Supreme Court of North Dakota
    • June 24, 2021
    ...consider the applicable N.D.C.C. § 14-09-06.2(1) factors." Schroeder v. Schroeder , 2014 ND 106, ¶ 7, 846 N.W.2d 716 (quoting Vining v. Renton , 2012 ND 86, ¶ 17, 816 N.W.2d 63 ). "A prima facie case justifying a modification of primary residential responsibility and, therefore, an evidenti......
  • Hageman v. Hageman, 20120183.
    • United States
    • United States State Supreme Court of North Dakota
    • February 26, 2013
    ...decision to modify primary residential responsibility is a finding of fact, subject to the clearly erroneous standard of review. Vining v. Renton, 2012 ND 86, ¶ 15, 816 N.W.2d 63. A finding of fact is clearly erroneous if there is no evidence to support it, if the finding is induced by an e......
  • Request a trial to view additional results

VLEX uses login cookies to provide you with a better browsing experience. If you click on 'Accept' or continue browsing this site we consider that you accept our cookie policy. ACCEPT