Kelly v. Kelly ( 2002 )

SANDSTROM, Justice.

[¶ 1] Susan Kelly appealed from a Northwest Judicial District Court order granting Delmer Kelly’s motion for a change of custody of their two daughters. We affirm, concluding the district court did not err in changing custody.

I

[¶ 2] Delmer and Susan Kelly were divorced in November of 1997. They resolved all matters in the divorce by a stipulation. At the time of the divorce, Susan Kelly was awarded sole custody of the couple’s two daughters. No child support was ordered. In late 2000, the Ward County Regional Child Support Enforcement Unit sought to establish a child support order. In January 2001, Delmer Kelly filed a motion for change of custody, alleging a substantial change of circumstances had occurred and a change of custody was necessary to serve the best interests of the children.

[¶ 3] At the custody hearing, Susan Kelly testified she had suffered a total of five strokes between 1996 and 1998. She testified a friend and co-worker had cared for her daughters during the times she had been unable to care for them. She also testified she had asked Delmer Kelly to take the children while she was ill, but he declined. She further testified her friend had cared for the girls for a total of twelve months throughout the period of her health problems.

[¶ 4] Susan Kelly testified she and the children had moved several times since the separation and divorce. She had moved to Minot, North Dakota, to pursue a masters degree in music. She then moved to Colorado for a job opportunity. She then moved back to Minot and then to Bowman, North Dakota. She left Bowman and moved to Westhope, North Dakota. Next, she moved to Fargo, North Dakota. While living in Fargo, she moved twice. She testified she has resided in Lignite, North Dakota, since 1999 with a man to whom she is not married. She testified the two children accompanied her in each of the moves, which took place between 1996 and 2000.

[¶ 5] The girls testified their mother had entered into several transitional relationships prior to her current relationship. The girls testified their mother would bring her male companions home for overnight visits. The younger daughter testified she and her sister had personally observed their mother in bed with an overnight guest. The younger daughter also testified to the names and physical descriptions of her mother’s overnight guests.

[¶ 6] Delmer Kelly testified he completed his education after the divorce, moved to Fargo, and went to work for the Veteran’s Administration. In July of 1999, he married Lori Kelly, who has four children from a previous marriage. Lori Kelly testified her children live with their father and she has visitation every other weekend and for extended periods during summer vacations and school holidays.

[¶ 7] He also testified that for approximately five months during the time Susan Kelly lived in Fargo, the girls stayed with him and his wife. He testified the girls were enrolled and attended school in Fargo during this period. Susan Kelly testified a member of Lori Kelly’s family was accused of inappropriate sexual conduct toward the girls while they were staying with their father. Lori Kelly testified a police investigation took place, but it revealed insufficient evidence and no further action was taken by the police. She also testified that since this incident, her family member is no longer allowed to visit their home.

[¶ 8] Delmer Kelly testified he has had sporadic contact with his daughters since the separation and divorce. He testified the girls informed him of their moves after the fact. Susan Kelly testified her former husband had come to visit the children only once and had never exercised his summer visitation privileges. Delmer Kelly testified he had contact with the children when they were living in Westhope and Minot, and the older daughter testified he exercised two-and-a-half weeks of visitation with her in the summer of 2000. Delmer Kelly also testified he kept in contact with his daughters through e-mail and telephone calls.

[¶ 9] After the incident with Lori Kelly’s family member, Donna Norrie, an employee of Burke County Social Services, was assigned to contact Susan Kelly and the girls. Norrie testified the man Susan Kelly is living with is a stabilizing factor in the children’s home. Norrie also testified the children were well-dressed and active in extracurricular activities at school. She also testified the children wanted to continue living with their mother.

[¶ 10] During the custody hearing, the district court heard from both the girls, ages fifteen and twelve, in chambers, out of the presence of their parents. The district court found the older daughter was a “bright, articulate, 15-year old who did not hide her strong desire to live with her father.” The district court also stated it found her “to be a particularly credible witness.”

[¶ 11] The district court found a material change in circumstances, and found a change in custody was necessary to serve the best interests of the children.

[¶ 12] The district court has jurisdiction under N.D.C.C. § 27-05-06. This Court has jurisdiction under N.D. Const, art VI, § 6, and N.D.C.C. § 28-27-01.

II

[¶ 13] A district court’s decision whether to change custody is a finding of fact subject to the clearly erroneous standard of review. Anderson v. Resler, 2000 ND 183, ¶ 8, 618 N.W.2d 480. A finding of fact is clearly erroneous if there is no evidence to support it, if the finding is induced by an erroneous view of the law, or if the reviewing court is left with a definite and firm conviction a mistake has been made. N.D.R.Civ.P. 52(a); Mosbrucker v. Mosbrucker, 1997 ND 72, ¶ 5, 562 N.W.2d 390.

[¶ 14] 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.

[¶ 15] First, in deciding whether to change custody, a court must consider whether there has been a material change of circumstances since the original custody decree. N.D.C.C. § 14-09-06.6(6)(a). Second, if 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. N.D.C.C. § 14-09-06.6(6)(b).

[¶ 16] As we have stated, the use of “necessary” in the codification of the second step of the two-step test did not signal a departure from the standard embodied in our case law. Holtz v. Holtz, 1999 ND 105, ¶ 10, 595 N.W.2d 1 (“This part of the statutory formulation essentially tracks the two-step approach previously used by this Court for deciding a change of custody case.”) Since N.D.C.C. § 14-09-06.6(6) became effective, we have continued to reference our prior ease law, and we have sometimes substituted “require” or “compel” for the statutory language of “necessary” when reciting the second step of the test. See, e.g., Selzler v. Selzler, 2001 ND 138, ¶ 21, 631 N.W.2d 564; Mayo v. Mayo, 2000 ND 204, ¶ 14, 619 N.W.2d 631; O’Neill v. O’Neill, 2000 ND 200, ¶ 4, 619 N.W.2d 855; Anderson v. Resler, 2000 ND 183, ¶ 8, 618 N.W.2d 480; In re K.M.G., 2000 ND 50, ¶ 4, 607 N.W.2d 248; Hendrickson v. Hendrickson, 2000 ND 1, ¶ 16, 603 N.W.2d 896; Myers v. Myers, 1999 ND 194, ¶ 6, 601 N.W.2d 264; Holtz v. Holtz, 1999 ND 105, ¶¶ 9-10, 595 N.W.2d 1; Ramstad v. Biewer, 1999 ND 23, ¶ 11, 589 N.W.2d 905; Gietzen v. Gietzen, 1998 ND 70, ¶ 8, 575 N.W.2d 924.

A

[¶ 17] A material change of circumstances would be important new facts that were unknown at the time of the prior custodial decree.¹ Selzler, 2001 ND 138, ¶ 21, 631 N.W.2d 564; Mayo, 2000 ND 204, ¶ 16, 619 N.W.2d 631; In re N.C.C., 2000 ND 129, ¶ 18, 612 N.W.2d 561. “A material change of circumstances can occur if a child’s present environment may endanger the child’s physical or emotional health or impair the child’s emotional development.” Selzler, at ¶ 21. The party seeking a modification of the custody order bears the burden of proof. N.D.C.C. § 14-09-06.6(8).

[¶ 18] The district court found the following material changes in circumstances:

That since the time of the granting of the divorce judgment in this matter, numerous changes constituting a significant change in circumstances has occurred. Those changes include, but are not limited to the following:

A. The Plaintiff, Delmer T. Kelly, has changed residence to Fargo, North Dakota and has remarried.

B. The Plaintiff, Delmer T. Kelly, is no longer a student, is no longer on disability, and has full-time employment with the Veterans Administration. .

C. The residence of the minor children ... has changed-on a number of occasions.

D. The children have gotten to an age where they are able to articulate their preference concerning custody issues to the Court.

[¶ 19] The relocation of a parent and a change of a child’s preference may constitute a significant change of circumstances. Gietzen v. Gietzen, 1998 ND 70, ¶ 10, 575 N.W.2d 924 (a custodial parent’s decision to move may be viewed as a significant change of circumstances and a mature child’s preference may be particularly significant in determining whether there has been a significant change of circumstances); Mosbrucker v. Mosbrucker, 1997 ND 72, ¶ 10, 562 N.W.2d 390 (a mature child’s preference can be considered as a change in circumstances); Alvarez v. Carlson, 524 N.W.2d 584, 590 (N.D.1994) (“a child’s preference is a factor that may be considered when determining whether there has been a significant change of circumstances”). The district court did not err in finding the numerous relocations of Susan Kelly and the change in the children’s preferences were material changes of circumstance.

[¶ 20] The district court’s findings regarding the improvements in Delmer Kelly’s life would not, by themselves, constitute a significant change in circumstances. Delzer v. Winn, 491 N.W.2d 741, 744 (N.D.1992) (improvements in the noncustodial parent’s life were not enough to show a significant change in circumstances). Improvements in a non-custodial parent’s situation “accompanied by a general decline in the condition of the children with the custodial parent over the same period” may constitute a significant change in circumstances. Hagel v. Hagel, 512 N.W.2d 465, 468 (N.D.1994). The district court did not err by finding Delmer Kelly’s situation had improved while at the same time his daughters’ situation had declined.

[¶ 21] The district court did not err in finding a material change of circumstances had taken place.

B

[¶ 22] In determining whether modification of custody is necessary to serve the best interests of the children, the factors in N.D.C.C. § 14-09-06.2(1) must be applied. N.D.C.C. § 14-09-06.6(6)(b); Blotske v. Leidholm, 487 N.W.2d 607, 610 (N.D.1992). Section 14-09-06.2(1), in part, provides:

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 to express a preference.

j. Evidence of domestic violence.

k. The interaction and interrelationship, or the potential for interaction and interrelationship, of the child with any person who resides in, is present, or frequents the household of a parent and who may significantly affect the child’s best interests.

l. The making of false allegations not made in good faith, by one parent against the other, of harm to a child as defined in section 50-25.1-02.

m. Any other factors considered by the court to be relevant to a particular child custody dispute.

“In a modification proceeding, the best interests of the child must be gauged against the backdrop of the stability of the child’s relationship with the custodial parent.” Blotske, 487 N.W.2d at 610. “[I]f the previous custody placement was based upon the parties’ stipulation and not by consideration of the evidence and court made findings, the trial court must consider all relevant evidence, including pre-di-vorce conduct and activities, in making a considered and appropriate custody decision in the best interests of the children.” Wetch v. Wetch, 539 N.W.2d 309, 312-13 (N.D.1995).

[¶ 23] In its findings of fact, the district court addressed the N.D.C.C. § 14-09-06.2(1) factors. The district court did not find any of the factors favored Susan Kelly. The district court found factors (b), (c), (d), (e), (f), and (i) favored Delmer Kelly. The district court did not make specific findings regarding factors (g) and (h), the mental and physical health of the parents, and the home, school, and community record of the children. The district court found a change in custody from Susan Kelly to Delmer Kelly was necessary to serve the best interests of the children.

[¶ 24] The district court found factor (a) did not favor either party and in its memorandum opinion said both parents had some deficiencies in this area. The district court criticized Delmer Kelly for his limited attempts to keep in touch with his daughters, for refusing to take temporary custody during Susan Kelly’s illnesses, for not offering financial support even though it was not required, and for failing to “fully understand the impact [the] actions [of Lori Kelly’s family member] may have had on his daughters.” The district court also noted, in spite of Susan Kelly’s “past personal and medical problems,” it was convinced her love for the children was equal to Delmer Kelly’s.

[¶ 25] The district court found factor (b) favored Delmer Kelly. In its memorandum opinion, the district court said:

Past-actions - of Susan in frequenting bars and bringing various men home for overnight visits (conduct which has significantly discontinued since residing with [her current male companion]) has seriously eroded Susan’s credibility to serve as a role model. Susan has been residing with a man to whom she is not married for approximately two years.

The district court praised Susan Kelly for seeking to improve her parenting skills, but concluded her efforts should have taken place long ago. The district court found Delmer Kelly had a greater capacity to give his daughters guidance.

[¶ 26] The district court found factor (c) slightly favored Delmer Kelly. The district court noted Susan Kelly’s ability to provide for the children was dependent upon her relationship with the man she is living with.

[¶ 27] The district court found factor (d) favored Delmer Kelly. In its memorandum opinion, the district court said:

The numerous moves by Susan, her medical problems and transitional relationships with members of the opposite sex have done little to provide a satisfactory environment in which to raise a family. The situation has significantly improved due to [the] stabilizing influence [of her current male companion]. On the other hand, Delmer has remarried and his new relationship seems quite secure. Delmer has obtained significant employment and is in the process of constructing a new home. The situation with [Lori Kelly’s family member] is a consideration. However, Delmer has made it quite clear that [this individual] is no longer welcome in his home.

The district court questioned the suitability of the children’s environment. The district court, finding factor (e) also clearly favored Delmer Kelly, referenced earlier discussions in its memorandum opinion.

[¶ 28] The district court found factor (f) favored Delmer Kelly. In its memorandum opinion, the district court said:

Although morality is often based on one’s subjective judgment, much of Susan’s past conduct is beyond bounds of even the most liberal tolerances. [The younger daughter] testified that she personally observed her mother in bed with an overnight guest and had sufficient familiarity to name names and offer physical descriptions of various overnight male visitors. [The older daughter] referred to her mother’s past conduct as “disgusting.”

Although I have other concerns which have already been expressed, I would not be quick to render judgment on Susan’s current cohabitation because I am more inclined to consider the permanency of relationships rather than their legality. In considering the entire course of conduct since the divorce, I find that this factor favors Delmer.

[¶ 29] Regarding factor (i), the district court gave weight to the children’s preferences, especially the older daughter’s. Both girls expressed a desire to live with then* father. The district court viewed the younger daughter’s testimony with more skepticism, but concluded her preference was entitled to some weight. Specifically, the district court stated:

I asked [the older daughter] if perhaps, when things are not going well at home, whether she may be imagining how she would want things to be if she were to reside with her father. [She] responded that she had lived for six months in Fargo with her father and that she knows what conditions would exist.

I asked [her] if she would be prepared to cope with becoming enrolled in a much larger school system. Again, [she] stated that she had already spent several months attending a West Fargo school and that she received mostly A’s.

[She] has a boy friend in the school that she has currently been attending. [She] is well aware that she would be seeing less of her boy friend if she were to move to Fargo. When considered from the perspective of a teenager, this fact is a strong testament to her desire to live with her father.

[¶ 30] The district court found there was no evidence of domestic violence. The district court found factor (k) did not favor either party.

[¶ 31] The district court appropriately considered the stability of the relationship between the children and the custodial parent. See In re N.C.C., 2000 ND 129, ¶¶ 25-26, 612 N.W.2d 561 (evidence of a “pattern of moving around and leaving her children unattended” indicates the child’s relationship with the mother lacked stability); In re D.F.G., 1999 ND 216, ¶ 16, 602 N.W.2d 697 (“A parent’s frequent moving is evidence of the parent’s inability to provide a stable environment for a child.”); Ramstad v. Biewer, 1999 ND 23, ¶ 16, 589 N.W.2d 905. The district court found the relationship between Susan Kelly and her daughters lacked stability, stating “[t]he numerous moves by Susan, her medical problems and transitional relationships with members of the opposite sex have done little to provide a satisfactory environment in which to raise a family.” Likewise, the district court properly reviewed the moral fitness of each parent. Gietzen v. Gietzen, 1998 ND 70, ¶¶ 7, 11, 575 N.W.2d 924.

[¶ 32] The preference of the children “can be an important factor to consider when determining the best interests of the child.” Loll v. Loll, 1997 ND 51, ¶ 15, 561 N.W.2d 625. As children mature, more weight may be given to their preferences, if there are persuasive reasons for their preferences. Id. (citing Mertz v. Mertz, 439 N.W.2d 94, 96 n. 2 (N.D.1989)); Mosbrucker v. Mosbrucker, 1997 ND 72, ¶ 10, 562 N.W.2d 390. The district court stated it looked to the “age, intelligence, maturity, and the reasons given” when considering the weight to be given to a child’s preference. Here, both girls expressed a desire to live with their father, and the district court appropriately considered their preferences in finding factor (i) weighed heavily in favor of Delmer Kelly.

[¶ 33] Susan Kelly argued the district court should consider only her recent conduct when reviewing the best interests of the children. The district court appropriately considered all the conduct and activities of the parties since the original stipulation. Tulintseff v. Jacobsen, 2000 ND 147, ¶ 9 n. 1, 615 N.W.2d 129; Wetch v. Wetch, 539 N.W.2d 309, 312-13 (N.D.1995) (“[I]f the previous custody placement was based upon the parties’ stipulation and not by consideration of the evidence and court made findings, the trial court must consider all relevant evidence, including pre-di-vorce conduct and activities, in making a considered and appropriate custody decision in the best interests of the children.”).

[¶ 34] After the discussion of the best-interest factors, the district court found “there [had] been a significant change of circumstances which require, in the best interests of the children, that the Judgment dated November 6, 1997, be modified to provide Delmer with care, custody and control of [his daughters].” While the district court did not provide a separate analysis of its conclusion that a change in custody was necessary, we can “through inference or deduction ... discern the rationale for the result reached by the trial court” and will not remand for a clarification. Holtz v. Holtz, 1999 ND 105, ¶ 18, 595 N.W.2d 1.

[¶ 35] After reviewing the entire record, we are not left with a definite and firm conviction a mistake was made by the district court. We conclude the district court’s findings are not clearly erroneous.

Ill

[¶ 36] The district court’s order changing custody of the children from Susan Kelly to Delmer Kelly is affirmed.

[¶ 37] GERALD W. VANDE WALLE, C.J., and CAROL RONNING KAPSNER, JJ., concur.

1 . The legislature did not provide a definition of the word material in N.D.C.C. § 14-09-06.6(6)(a). When a definition is not provided, "[w]ords used in any statute are to be understood in their ordinary sense.” See N.D.C.C. § 1-02-02. The concurrence's suggestion that "material" should be interpreted to mean something other than its plain meaning is not in accordance with our rules of statutory interpretation.