Hoffman v. Hoffman ( 2023 )

FILED
IN THE OFFICE OF THE
CLERK OF SUPREME COURT
FEBRUARY 16, 2023
STATE OF NORTH DAKOTA
IN THE SUPREME COURT
STATE OF NORTH DAKOTA
2023 ND 18Tia Hoffman, n.k.a. Tia Holm, Plaintiff and Appellee
v.
Travis Hoffman, Defendant and Appellant
and
State of North Dakota, Statutory Real Party in Interest
No. 20220142
Appeal from the District Court of Stark County, Southwest Judicial District,
the Honorable Rhonda R. Ehlis, Judge.
AFFIRMED.
Opinion of the Court by Tufte, Justice.
Robert A. Keogh, Dickinson, N.D., for plaintiff and appellee.
Theresa L. Kellington, Bismarck, N.D., for defendant and appellant.
Hoffman v. Hoffman
No. 20220142
Tufte, Justice.
[¶1] Travis Hoffman appeals from an amended judgment and orders denying
his motion to modify residential responsibility and granting Tia Hoffman’s
motion for a change of residence to relocate out of state with their minor child.
We affirm.
I
[¶2] The parties were married and have one minor child together, M.J.H.,
born in 2013. In 2018, Tia Hoffman commenced this action for divorce and
residential responsibility of their minor child. After a trial, the district court
entered judgment, awarding primary residential responsibility to Tia
Hoffman, with parenting time to Travis Hoffman.
[¶3] In July 2021, Travis Hoffman moved to modify the judgment, requesting
primary residential responsibility be awarded to him. In November 2021, Tia
Hoffman moved to amend the judgment, requesting a change in residence of
the child from North Dakota to Colorado. The district court held an evidentiary
hearing on Travis Hoffman’s motion to modify residential responsibility. The
court denied his motion to modify residential responsibility and granted Tia
Hoffman’s motion for a change of residence to relocate to Colorado. The court
entered an amended judgment and parenting plan.
II
[¶4] Travis Hoffman argues the district court erred in denying his motion to
modify residential responsibility by applying the heightened standard to his
motion and, alternatively, finding he failed to satisfy that standard. “A district
court’s decision on whether to modify primary residential responsibility is a
finding of fact, which will not be reversed on appeal unless it is clearly
erroneous.” Stoddard v. Singer, 2021 ND 23, ¶ 6, 954 N.W.2d 696. A finding of
fact is clearly erroneous if it is induced by an erroneous view of the law, there
1
is no evidence to support it, or if the Court is convinced, on the entire record, a
mistake has been made. Id.A
[¶5] Travis Hoffman contends the district court erred in applying the
heightened standard to his motion to modify residential responsibility.
[¶6] “Unless agreed to in writing by the parties, or if included in the parenting
plan, no motion for an order to modify primary residential responsibility may
be made earlier than two years after the date of entry of an order establishing
primary residential responsibility, except in accordance with subsection 3.”
N.D.C.C. § 14-09-06.6(1) (emphasis added). Subsection 3, N.D.C.C. § 14-09-
06.6, provides the heightened standard. If the modification is sought after two
years following the date of entry of an order establishing primary residential
responsibility, the court applies the more lenient standard requiring a material
change in circumstances. N.D.C.C. § 14-09-06.6(6). Travis Hoffman asserts
that his motion to modify residential responsibility was outside of the two-year
period and that the district court erred in applying the heightened standard.
We apply a de novo standard of review to the interpretation of a statute. Gomm
v. Winterfeldt, 2022 ND 172, ¶ 16, 980 N.W.2d 204.
[¶7] The motion to modify residential responsibility was filed July 29, 2021.
The judgment and findings of fact, conclusions of law, and order for judgment
were entered August 1, 2019. The district court concluded these documents
established primary residential responsibility, and because the motion was
within two years, the heightened standard applied. Travis Hoffman argues the
parenting plan, entered July 8, 2019, is an order establishing primary
residential responsibility and the two-year period began upon its entry. The
parenting plan provided, “Primary residential responsibility for M.J.H., born
2013, shall be with Tia Hoffman.”
[¶8] Although Travis Hoffman argues that the parenting plan is an order
establishing primary residential responsibility, for his argument to prevail we
must ultimately conclude that the subsequent judgment and the order for
judgment are not orders “establishing primary residential responsibility.”
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Because if either one is such an order, the two-year period limiting modification
would begin anew from that date, August 1, 2019, regardless of whether the
parenting plan can also be considered an order establishing primary
residential responsibility.
[¶9] Under the prior version of N.D.C.C. § 14-09-06.6, we concluded that an
amended judgment was “an order establishing custody” and that the district
court erred by not applying the heightened standard. Graner v. Graner, 2007
ND 139, ¶¶ 29-30, 738 N.W.2d 9. We emphasized that the “purpose of the two-
year period limiting modification is to provide a moratorium and spare children
the painful, disruptive, and destabilizing effects of repeat custody litigation.”
Id. at ¶ 27.
[¶10] Of course, “[o]nly judgments constituting a final judgment of the rights
of the parties and certain orders enumerated by statute are appealable.”
Froehlich v. Froehlich, 2021 ND 133, ¶ 8, 962 N.W.2d 588. A parenting plan is
neither a final judgment nor, generally, an appealable order under N.D.C.C.
§ 28-27-02. Rather, an appeal is taken from the “subsequently entered
consistent judgment, if one exists.” Taylor v. Taylor, 2022 ND 39, ¶ 6, 970
N.W.2d 209. The judgment has the independent legal significance of being
appealable to this Court. N.D.R.Civ.P. 54(a). The parenting plan is an
interlocutory order, which “may be revised or reconsidered any time before a
final order or judgment is entered.” Froehlich, at ¶ 8; N.D.R.Civ.P. 54(b).
[¶11] Travis Hoffman contends that the parenting plan “conclusively
established residential responsibility,” which the parties were expected to
immediately follow upon entry. While the parties are required to follow orders
from the district court, interim or interlocutory orders are subject to revision
or reconsideration at any time until a final order or judgment is entered.
Accordingly, we conclude that the judgment, entered August 1, 2019, is an
“order establishing primary residential responsibility.” Because the motion to
modify residential responsibility was filed within two years of the judgment,
the court correctly applied the heightened standard.
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B
[¶12] Travis Hoffman argues in the alternative that he satisfied the
heightened standard and the district court erred in denying his motion to
modify residential responsibility. Under the heightened standard of N.D.C.C.
§ 14-09-06.6(3), a motion to modify primary residential responsibility may be
made earlier than two years if the court finds:
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 primary residential responsibility for the child has changed
to the other parent for longer than six months.
Travis Hoffman states he satisfied subdivisions (b) and (c). However, the only
factual support he provides for subdivision (c) is through the declarations he
filed in support of his response to Tia Hoffman’s motion for a change of
residence. Recognizing these declarations were filed in response to the change
of residence motion, the district court did not consider these declarations when
deciding the motion to modify residential responsibility. Travis Hoffman does
not argue the court erred by not considering these declarations with his motion
to modify residential responsibility. We conclude the court did not err in
finding subdivision (c) did not apply.
[¶13] Further, the district court did not err in finding that Travis Hoffman
failed to show that the child’s present environment may endanger his physical
or emotional health or impair his emotional development. Specifically, the
court noted that Travis Hoffman raised concerns about the child’s schooling
and attention deficit hyperactivity disorder (ADHD). The court relied on the
testimony of the child’s physician, who testified that he believes Tia Hoffman
is acting appropriately in handling the child’s ADHD. The school concern
centered on whether home schooling, as Travis Hoffman insisted, or public
schooling, as Tia Hoffman proposed, was the better option for the child. The
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child’s physician testified that he believes public school is the better option for
M.J.H. because it provides a fixed schedule, which the child was not receiving
at home. On appeal, Travis Hoffman asserts subdivision (b) is met due to the
child receiving worse grades while in Tia Hoffman’s care, Tia Hoffman not
informing him of certain medical appointments and school meetings, and her
failure to reschedule medical appointments so he may attend. While the parties
have joint decision-making responsibility on educational and non-emergency
health care decisions, the court was not tasked with reviewing whether Tia
Hoffman violated the terms of the judgment and parenting plan. Rather,
Travis Hoffman moved for primary residential responsibility and alleged
M.J.H.’s environment may endanger his physical or emotional health or impair
his emotional development. We conclude the court did not clearly err in finding
the child’s present environment does not endanger his physical or emotional
health or impair his emotional development.
III
[¶14] Travis Hoffman argues the district court erred in granting Tia Hoffman’s
motion for change of residence by failing to hold a hearing on the motion,
failing to consider his declaration, and incorrectly weighing the Stout-
Hawkinson relocation factors. “A district court’s decision on a motion to
relocate is a finding of fact that will not be reversed on appeal unless clearly
erroneous.” Lessard v. Johnson, 2022 ND 32, ¶ 28, 970 N.W.2d 160.
A
[¶15] Travis Hoffman contends the district court erred by failing to hold a
hearing on the motion to amend the judgment for a change of residence. Under
N.D.R.Ct. 3.2(a)(3), a party must request a hearing and secure a time for the
hearing:
If any party who has timely served and filed a brief requests a
hearing, the request must be granted. A timely request for a
hearing must be granted even if the moving party has previously
served notice indicating that the motion is to be decided on briefs.
The party requesting a hearing must secure a time for the hearing
and serve notice upon all other parties. Requests for a hearing or
5
the taking of evidence must be made not later than seven days
after expiration of the time for filing the answer brief. If the party
requesting a hearing fails within 14 days of the request to secure
a time for the hearing, the request is waived and the matter is
considered submitted for decision on the briefs. If an evidentiary
hearing is requested in a civil action, notice must be served at least
21 days before the time specified for the hearing.
“If a party who timely served and filed a brief requests a hearing on a motion,
then such a hearing must be held and it is not discretionary with the trial
court.” Matter of Guardianship of S.M.H., 2021 ND 104, ¶ 16, 960 N.W.2d 811.
Neither Tia Hoffman nor Travis Hoffman requested a hearing on the motion.
Because Travis Hoffman did not request a hearing or secure a time for the
hearing, the court did not err by not holding a hearing on the motion to amend
judgment for a change of residence. Id. at ¶ 17 (concluding that party opposing
motion did not request evidentiary hearing and thus district court did not err
by ruling without holding a hearing).
B
[¶16] Travis Hoffman argues the district court erred by failing to consider his
declaration in support of his response to Tia Hoffman’s motion for a change of
residence. On November 24, 2021, he filed his declaration without any
language stating it was given “under penalty of perjury” as required by
N.D.C.C. § 31-15-05. On December 17, 2021, he filed a second declaration
stating it was “under the penalty of perjury.” The court did not consider either
of these declarations in granting the motion to change residence.
[¶17] Under N.D.R.Ct. 3.2(a)(2), the party opposing the motion has “14 days
after service of a brief within which to serve and file an answer brief and other
supporting papers.” Tia Hoffman served her brief in support of the motion to
amend judgment for a change of residence on November 10, 2021. Therefore,
Travis Hoffman had until November 24, 2021, to serve and file his answer brief
and other supporting papers. His first declaration was timely filed, but did not
comply with N.D.C.C. § 31-15-05. His second declaration was untimely under
N.D.R.Ct. 3.2(a)(2). Travis Hoffman does not cite any legal basis requiring the
6
district court to consider his untimely declaration. We conclude the court did
not err by disregarding his untimely declaration.
C
[¶18] Travis Hoffman asserts the district court incorrectly weighed factors one
and four of the Stout-Hawkinson relocation factors in granting the motion to
relocate.
[¶19] “A parent with primary residential responsibility for a child may not
change the primary residence of the child to another state except upon order
of the court or with the consent of the other parent, if the other parent has been
given parenting time by the decree.” N.D.C.C. § 14-09-07(1). “The parent
moving for permission to relocate has the burden of proving by a
preponderance of the evidence the move is in the child’s best interests.”
Lessard, 2022 ND 32, ¶ 27. In deciding whether relocation is in the child’s best
interests, the district court applies the four factors outlined in Stout v. Stout,
1997 ND 61, ¶¶ 33-34, 560 N.W.2d 903, as modified in Hawkinson v.
Hawkinson, 1999 ND 58, ¶ 9, 591 N.W.2d 144:
1. The prospective advantages of the move in improving the
custodial parent’s and child’s quality of life,
2. The integrity of the custodial parent’s motive for relocation,
considering whether it is to defeat or deter visitation by the
noncustodial parent,
3. The integrity of the noncustodial parent’s motives for opposing
the move,
4. The potential negative impact on the relationship between the
noncustodial parent and the child, including whether there is a
realistic opportunity for visitation which can provide an adequate
basis for preserving and fostering the noncustodial parent’s
relationship with the child if relocation is allowed, and the
likelihood that each parent will comply with such alternate
visitation.
Lessard, at ¶ 28.
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[¶20] The district court found factor one weighed in favor of relocation.
Specifically, the court found that moving to Colorado would keep the custodial
home intact because Tia Hoffman’s husband, who is training to be an
electrician, has already moved to Colorado. See Norby v. Hinesley, 2020 ND
153, ¶ 12, 946 N.W.2d 494 (“When the custodial parent desires to move to live
with a new spouse, we conclude that fact becomes dominant in favor of allowing
the move.”); but see Green v. Swiers, 2018 ND 258, ¶ 5, 920 N.W.2d 471 (“No
single factor is dominant, and what may be a minor factor in one case may have
a greater impact in another.”). The court also found that Tia Hoffman has a job
lined up at the same company as her husband, which would provide her a more
stable schedule, benefits, and opportunities for advancement. The court found
that Tia Hoffman’s sisters agreed to provide free childcare in Colorado, and
that she would be near her aging mother. The court did not clearly err in
finding the prospective advantages of the move would improve Tia Hoffman’s
and the child’s quality of life.
[¶21] The district court also found factor four weighed in favor of relocation.
“A relocation should be denied based on the fourth factor only in exceptional
circumstances, including when the court finds a custodial parent would not
foster the child’s relationship with the noncustodial parent and would not
comply with any visitation schedule the court could order.” Norby, 2020 ND
153, ¶ 21. “Distance alone is not a sufficient basis to deny relocation; it must
be considered in the context of the ability to refashion a visitation schedule
that can foster the noncustodial parent/child relationship.” Id. at ¶ 22. The
court found that a restructured visitation schedule would allow Travis
Hoffman to maintain a close relationship with M.J.H. Tia Hoffman offered, and
the court ultimately ordered, that Travis Hoffman shall have parenting time
during the child’s entire summer break and rotating holidays. The court also
found that Tia Hoffman has no history of deterring parenting time, and
actually allowed Travis Hoffman to receive more parenting time beyond the
original parenting plan. The court found that nothing in the record shows Tia
Hoffman would fail to follow the parenting plan. The court did not clearly err
in finding factor four—the potential negative impact on the relationship
between Travis Hoffman and the child—weighed in favor of relocation.
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[¶22] Travis Hoffman does not challenge factors two and three—the integrity
of both parents’ motives. Although the district court found that factor three did
not favor relocation because of Travis Hoffman’s genuine motive to be with his
son, it found that the other three factors weighed in favor of relocation and that
the relocation would be in the child’s best interests. We conclude this finding
is not clearly erroneous.
IV
[¶23] Travis Hoffman argues the court acted with bias or displayed prejudice
towards him throughout the post-judgment proceedings. However, “[t]he law
presumes a judge is unbiased and not prejudiced.” Rath v. Rath, 2016 ND 105,
¶ 12, 879 N.W.2d 735. “Adverse or erroneous rulings do not, by themselves,
demonstrate bias. Rather, for recusal to be warranted, a judge must be partial
or there must be some external influence that creates an appearance of
impropriety.” Id. at ¶ 13. Travis Hoffman has not alleged facts sufficient to
support a showing the judge was biased or there was some external influence
creating an appearance of impropriety.
[¶24] Travis Hoffman states the court erred in awarding parenting time.
However, he does not provide any legal or factual support for his contention,
waiving the issue. Feickert v. Feickert, 2022 ND 210, ¶ 15, 982 N.W.2d 316(“Where a party fails to provide supporting argument for an issue listed in his
brief, he is deemed to have waived that issue.”).
V
[¶25] We affirm the amended judgment and orders denying the motion to
modify residential responsibility and granting the motion for a change of
residence.
[¶26] Jon J. Jensen, C.J.
Daniel J. Crothers
Lisa Fair McEvers
Jerod E. Tufte
Douglas A. Bahr
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