Scott v. Scott , 2021 ND 128 ( 2021 )

FILED
IN THE OFFICE OF THE
CLERK OF SUPREME COURT
JULY 8, 2021
STATE OF NORTH DAKOTA
IN THE SUPREME COURT
STATE OF NORTH DAKOTA
2021 ND 128Amber Y. Scott, Plaintiff
v.
Ryan P. Scott, Defendant and Appellant
No. 20200344
Appeal from the District Court of Cass County, East Central Judicial District,
the Honorable Steven L. Marquart, Judge.
AFFIRMED.
Opinion of the Court by McEvers, Justice.
Richard J. Linnerooth, Fargo, ND, for defendant and appellant; submitted on
brief.
Scott v. Scott
No. 20200344
McEvers, Justice.
[¶1] Ryan P. Scott appeals from a district court order denying his motion to
modify primary residential responsibility. Scott argues the district court erred
by failing to find a material change in circumstances existed and failing to
analyze the best interest factors. We affirm.
I
[¶2] Scott and Amber Napier, formerly known as Amber Scott, were married
in July 2009. They share a daughter, M.Y.S., born in 2010, and a son, G.J.S.,
born in 2014. The pair divorced in October 2017 based on a settlement
agreement they drafted pro se. The stipulation provided for equal residential
responsibility of the children and was incorporated into the October 24, 2017,
divorce judgment. Scott married Ryah Scott in September 2019. Napier
married Richard Napier in February 2020. In December 2019, the parties
stipulated to amend the October 24, 2017 divorce judgment. Napier was
represented by counsel and Scott was unrepresented. An amended divorce
judgment was entered on December 19, 2019 making minor adjustments to the
parenting schedule.
[¶3] In April 2020, Scott moved to modify residential responsibility,
requesting primary residential responsibility of the children. In his affidavit
supporting his motion to modify custody, Scott made two main arguments: (1)
the children had spent 70 percent of their time living with him during the prior
six and one-half months; and (2) it would be in the children’s best interests to
be placed with Scott because Napier did not provide a stable environment for
the children. Scott argued Napier’s unstable environment was evidenced by
Napier’s eviction and lack of a primary residence for approximately three and
a half months, as well as her marriage to Richard, a convicted felon. Further,
Scott asserted Napier did not provide appropriate attention to the children’s
personal hygiene or provide hygiene items for the children, and did not ensure
their daughter completed her schoolwork or timely attended school. On May 9,
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2020, the district court entered an order finding a prima facie case for
modification of custody. After the court found a prima facie case, both Scott
and Napier retained counsel.
[¶4] An evidentiary hearing was held on September 28, 2020. Ten individuals
testified at the evidentiary hearing, including Scott and Napier. Contradictory
testimony was given about the time frames the children resided with Scott or
Napier. Particularly, contradictory testimony was given on the effects the
remarriage of both parties, particularly to Richard, as well as Napier’s eviction,
multiple short term moves before finding an apartment, and job change had on
the children. Contradictory testimony was also given regarding Napier’s travel
with the children, school attendance, and the health, happiness, and general
welfare of the children.
[¶5] On October 12, 2020, the district court denied Scott’s motion. In its
findings of fact, conclusions of law and order, the court stated Scott failed to
prove by the greater weight of the evidence that a material change had
occurred. The court found Scott did not establish the fact that the children had
resided with him 70 percent of the time, and though Scott took care of the
children while Napier was being treated for an illness, there was no material
change in circumstances. The court credited the testimony of Napier’s sister to
find Richard posed no danger to the children. On December 7 2020, Scott
appealed.
II
[¶6] Scott argues the district court erred by denying his motion and failing to
evaluate the best interest factors because there was a material change in
circumstances.
[¶7] The standard of review is well established:
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. A finding of fact
is clearly erroneous if it is induced by an erroneous view of the law,
there is no evidence to support it, or if the appellate court is
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convinced, on the entire record, a mistake has been made. . . .
Under the clearly erroneous standard of review, this Court will not
“reweigh the evidence, reassess the credibility of witnesses, or
substitute [its] own judgment for a district court’s initial decision.”
Stoddard v. Singer, 2021 ND 23, ¶¶ 6-7, 954 N.W.2d 696 (internal citations
omitted).
[¶8] Post-judgment modifications of residential responsibility based on
stipulated joint residential responsibility are governed by N.D.C.C. § 14-09-
06.6. See Dickson v. Dickson, 2018 ND 130, ¶ 7, 912 N.W.2d 321. Section 14-
09-06.6(6), N.D.C.C., states:
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 interests of
the child.
“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.” Valeu v. Strube, 2018 ND 30, ¶ 9, 905 N.W.2d 728. The moving party
bears the burden to prove that a material change in circumstances exists and
that modification is necessary to serve the child’s best interests. Id.[¶9] Even in cases where an initial custody order was based on stipulated
facts, as is the case here, a party moving to modify custody is required to show
a material change has occurred since the prior order. Valeu, 2018 ND 30, ¶ 10.
However, pre-divorce conduct may be relevant, and can be considered when
the divorce was stipulated and the district court was unaware of the facts at
the time of the stipulation. Haag v. Haag, 2016 ND 34, ¶ 12, 875 N.W.2d 539.
A material change in circumstances, as required to modify primary residential
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responsibility more than two years after entry of prior residential
responsibility order, is an important new fact that was unknown at the time of
the prior custody decision. Heidt v. Heidt, 2019 ND 45, ¶ 6, 923 N.W.2d 530.
[¶10] We have previously recognized a variety of factors that may constitute
material changes, including a significant change in a parent’s work schedule,
the marriage of a parent, attempts to alienate the child’s affection for the other
parent, and a parenting schedule that causes conflict between parents and
behavioral issues in the child. Rustad v. Baumgartner, 2020 ND 126, ¶ 8, 943
N.W.2d 786. If a district court determines there has been no material change
in circumstances, it is unnecessary for the court to consider whether a change
in primary residential responsibility is necessary to serve the children’s best
interests. Glass v. Glass, 2011 ND 145, ¶ 11, 800 N.W.2d 691. When two
parties present conflicting testimony on material issues of fact in a child
custody modification action, this Court will not redetermine the trial court’s
findings based upon that testimony. Roberson v. Roberson, 2004 ND 203, ¶ 10,
688 N.W.2d 380.
III
[¶11] Scott alleged that he had the children 70 percent of the time for longer
than six months. Napier introduced evidence that contradicted this accounting
of parenting time. The district court found that Scott had failed to establish
this fact. Scott further argued Napier’s marriage to Richard, a convicted felon
who was recently released from prison after spending approximately 23 years
incarcerated, was a material change in circumstances. There was conflicting
testimony given regarding the impact Richard’s presence had on the children.
The court relied upon the testimony of Napier’s sister to find Richard “is great
with” and “poses no danger to” the children, and held Napier’s marriage to
Richard was not a material change in circumstances.
[¶12] Scott also alleged the district court erred by failing to consider the
evidence cumulatively when deciding there was no material change. In support
of his argument, Scott relies on Woods v. Ryan, 2005 ND 92, ¶ 5, 696 N.W.2d
508, quoting the district court’s finding, “[c]umulatively, taking the above
4
factors into account, this Court finds there has been a material change of
circumstances.” While this Court affirmed this finding as not clearly erroneous,
there was no holding that the district court do more than consider whether
there has been a material change as required by N.D.C.C. § 14-09-06.6(6). Id.
at ¶ 9.
[¶13] As noted in Woods,
A trial court’s findings of fact are presumptively correct, and
we view the evidence in the light most favorable to the findings.
The burden is on the complaining party to demonstrate on appeal
that a trial court’s finding of fact is clearly erroneous. A trial court’s
opportunity to observe the witnesses and determine credibility
should be given great deference. We give due regard to the trial
court's opportunity to assess the credibility and observe the
demeanor of witnesses, 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. 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.
Woods, 2005 ND 92, ¶ 9 (internal citations omitted) (cleaned up). It is not this
Court’s role to redetermine the district court’s findings based upon conflicting
testimony on material issues of fact. There was support in the record for the
court finding no material change had occurred, and this determination does
not appear induced by an erroneous view of the law. Because the court
determined there had been no material change in circumstances, it was
unnecessary for the court to consider whether a change in primary residential
responsibility would serve the children’s best interests. While we may not have
come to the same conclusion, we are not left with a definite and firm conviction
a mistake has been made.
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IV
[¶14] We affirm the district court order denying Scott’s motion to modify
primary residential responsibility holding that a material change in
circumstances had not occurred.
[¶15] Jon J. Jensen, C.J.
Gerald W. VandeWalle
Daniel J. Crothers
Lisa Fair McEvers
Jerod E. Tufte
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