Woods v. Ryan

• Decision Date: 17 May 2005
• Docket Number: No. 20040227.,20040227.
• Citation: 2005 ND 92,696 N.W.2d 508
• Parties: Thomas J. WOODS, Plaintiff and Appellee, v. Jennifer RYAN, f/k/a Jennifer Woods, Defendant and Appellant.
• Court: North Dakota Supreme Court

696 N.W.2d 508

2005 ND 92

Thomas J. WOODS, Plaintiff and Appellee, v. Jennifer RYAN, f/k/a Jennifer Woods, Defendant and Appellant.

No. 20040227.

Supreme Court of North Dakota.

May 17, 2005.

Rehearing Denied June 22, 2005.

Paul M. Probst (argued), Probst Law Firm, Minot, N.D., for plaintiff and appellee.

William E. Bergman (argued) and Charles G. DeMakis (on brief), Olson & Burns, P.C., Minot, N.D., for defendant and appellant.

SANDSTROM, Justice.

[¶ 1] Jennifer Ryan, formerly known as Jennifer Woods, appealed an amended judgment changing child custody in a divorce action brought by Thomas J. Woods. We affirm.

I

[¶ 2] In accordance with their stipulation, Woods, who was then 24, and Ryan, who was then 18, divorced in 2000. The judgment (1) granted Woods a divorce; (2) granted the parties joint legal custody of their child; (3) granted Ryan physical custody of the child and gave Woods liberal visitation; (4) ordered Woods to pay child support of $255 per month; (5) listed Ryan's address as 1105 5th Ave. NW in Minot; (6) indicated Ryan was unemployed; and (7) divided the parties' property and debts.

[¶ 3] In 2003, Woods moved to amend the divorce judgment to grant him custody of the parties' child. Woods supported the motion with a brief and an affidavit asserting, among other things: (1) The parties' child "lives with his grandparents, David and Barbara Rust." Ryan "does not reside at this residence, and it is unknown where she resides;" (2) He can provide his son with a stable environment in his home; (3) Ryan "is not working, has no permanent address, and has been in jail on several occasions for various offenses, including drug related activities;" and (4) "I have the necessary skills, desires, and ability to care for my child, and I feel it [is] in his best interests to be raised by me, as opposed to his grandparents."

[¶ 4] Ryan responded with an affidavit stating, among other things: (1) "Since the entry of Judgment of Divorce, she has lived and continues to live with her parents in Minot and has resided nowhere else, except for a one-month period in 2002;" (2) "There has been no significant change of circumstances since the divorce;" (3) "Allegations that she has turned over custody of her son to her parents and does not reside in her parent[]s['] home are completely groundless and false;" (4) Their child "has lived in a stable and satisfactory home environment with Jennifer and her parents;" (5) "While the allegations of [Woods'] affidavit that I have been in jail are correct, the offenses were for driving under suspension and without insurance, and one time only for possession of drug paraphernalia;" and (6) Woods "has not regularly exercised visitation." Ryan's mother filed an affidavit averring, among other things: (1) Ryan and the parties' child have lived with her and her husband since the time of the divorce, except for one month in 2002; (2) Ryan "has not turned over custody of [the child] to me and my husband, nor has she moved out of our home," and (3) Woods "has not regularly exercised visitation."

[¶ 5] The district court issued an order finding Woods "has established a prima facie case for custody modification." After a hearing, the court issued a memorandum and order. The court found a material change of circumstances:

Jennifer has been chronically unemployed since the August 2000 divorce. She has had spasms of employment in the period of August 2000 to January 16, 2004. The evidence was uncontested that Jennifer has been unwilling or unable to step up and help support [the child]. Her parents have supported her and [the child]. Child support does not begin to cover [the child's] needs. Sadly, Jennifer and her mother appear to be content for over three years for Jennifer to live off her parents. At trial, Jennifer was pregnant. Jennifer testified that she has a number of fines and that her mother pays her fines for her in return for some work she does around the house. Clearly, Jennifer needs to get a job so she can better support [the child], herself, and her new baby. Her three years of chronic unemployment is a material change of circumstance when other factors are taken into account.

Jennifer denied that she turned over care of [the child] to her parents.... While not finding Jennifer has turned complete care of [the child] over to anyone, the Court does find that Jennifer's parents and grandparents have no doubt [] had significant involvement with [the child] on a near day to day basis.

In further support of his position that there has been a change in circumstances, Tom pointed to Jennifer's arrests in 2003... the numerous convictions and time of arrest involved—even as to charges dismissed—do not support her position in regard to the overall material change of circumstances issues. This point is amplified by Jennifer's three years of chronic unemployment and the repetitive 2003 early morning arrests coming on [the] heels of the chronic unemployment and then her apparent secret marriage to Chris Ryan only to be followed a short time later by separation and her return to her parents' home.

Cumulatively, taking the above factors into account, this Court finds there has been a material change of circumstances. This conclusion is supported by Tom's actions since the August, 2000, divorce which include his marriage to and the stable lifestyle they have established.

The trial court found that "a change in custody is necessary for the best interests of" the parties' child. An amended judgment was entered that granted Woods' motion to amend the judgment, fixed a visitation schedule, and fixed Ryan's child support obligation. Ryan appealed.

[¶ 6] The district court had jurisdiction under N.D. Const. art VI, § 8, and N.D.C.C. § 27-05-06. The appeal was timely under N.D.R.App.P. 4(a). This Court has jurisdiction under N.D. Const. art. VI, § 6, and N.D.C.C. § 28-27-01.

II

[¶ 7] Ryan has raised the following issue on appeal: "Whether the District Court erred when it determined that Thomas J. Woods Sr. had proven a material change in circumstances that necessitated a change of custody for [the parties' child] from his mother, Jennifer Ryan f/n/a Jennifer Woods."

[¶ 8] The test for changing the custody of a child is set forth in N.D.C.C. § 14-09-06.6(6):

The court may modify a prior custody order after the two-year period following the date of entry of an order establishing custody 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.

[¶ 9] "A district court's decision whether to change custody is a finding of fact subject to the clearly erroneous standard of review." Kelly v. Kelly, 2002 ND 37, ¶ 13, 640 N.W.2d 38. Section 14-09-06.6(6), N.D.C.C., requires a court to use a two-part analysis in deciding whether or not to change custody of a child. First, the "court must consider whether there has been a material change of circumstances since the original custody decree." Kelly, at ¶ 15. "[I]f the court decides there has been a material change in circumstances, it must decide whether a change in custody is necessary to serve the best interests of the child." Id. A party seeking modification of an existing custody order bears the burden of proof. Id. at ¶ 17. "`A trial court's findings of fact are presumptively correct, and we view the evidence in the light most favorable to the findings.'" Reineke v. Reineke, 2003 ND 167, ¶ 12, 670 N.W.2d 841 (quoting Schmidt v. Schmidt, 2003 ND 55, ¶ 5, 660 N.W.2d 196). "The burden is on the complaining party to demonstrate on appeal that a trial court's finding of fact is clearly erroneous." Marschner v. Marschner, 2002 ND 67, ¶ 4, 642 N.W.2d 857. "A trial court's opportunity to observe the witnesses and determine credibility should be given great deference." Frieze v. Frieze, 2005 ND 53, ¶ 8, 692 N.W.2d 912. "We give due regard to the trial court's opportunity to assess the credibility and observe the demeanor of witnesses, see Wagner v. Wagner, 2000 ND 132, ¶ 12, 612 N.W.2d 555,

and we do not retry custody issues or reassess the credibility of witnesses if the court's decision is supported by evidence in the record." Corbett v. Corbett, 2001 ND 113, ¶ 6, 628 N.W.2d 312. "We will not reverse a trial court's factual findings merely because we may have viewed the evidence differently, and a choice between two permissible views of the weight of the evidence is not clearly erroneous." Id.

[¶ 10] Section 14-09-06.2(1), N.D.C.C., provides 13 factors for consideration in determining the best interests and welfare of a child:

For the purpose of custody, the best interests and welfare of the child is determined by the court's consideration and evaluation of all factors affecting the best interests and welfare of the child. These factors include all of the following when applicable:

a. The love, affection, and other emotional ties existing between the parents and child.

b. The capacity and disposition of the parents to give the child love, affection, and guidance and to continue the education of the child.

c. The disposition of the parents to provide the child with food, clothing, medical care, or other remedial care recognized and permitted under the laws of this state in lieu of medical care, and other material needs.

d. The length of time the child has lived in a stable satisfactory environment and the desirability of maintaining continuity.

e. The permanence, as a family unit, of the existing or proposed custodial home.

f. The moral fitness of the parents.

g. The mental and physical health of the parents.

h. The home, school, and community record of the child.

i. The reasonable preference of the child, if the court deems the child to be of sufficient intelligence, understanding, and experience

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