Goetz v. Goetz , 2023 ND 120 ( 2023 )

FILED
IN THE OFFICE OF THE
CLERK OF SUPREME COURT
JULY 7, 2023
STATE OF NORTH DAKOTA
IN THE SUPREME COURT
STATE OF NORTH DAKOTA
2023 ND 120Joshua M. Goetz, Plaintiff and Appellee
v.
Cassandra B. Goetz, n.k.a. Cassandra Smith, Defendant and Appellant
and
State of North Dakota, Statutory Real Party in Interest
No. 20220231
Appeal from the District Court of McLean County, South Central Judicial
District, the Honorable James D. Gion, Judge.
REVERSED.
Opinion of the Court by McEvers, Justice, in which Chief Justice Jensen and
Justice Tufte joined. Surrogate Judge Nelson filed a dissenting opinion, in
which District Judge Louser joined.
Justin D. Hager, Bismarck, ND, for plaintiff and appellee.
Garrett D. Ludwig, Mandan, ND, for defendant and appellant.
Goetz v. Goetz, et al.
No. 20220231
McEvers, Justice.
[¶1] Cassandra Smith, formerly Cassandra Goetz, appeals from a corrected
amended judgment awarding her and Joshua Goetz equal residential
responsibility of their minor children and awarding Goetz primary decision
making responsibility. In Goetz v. Goetz, 2023 ND 53, 988 N.W.2d 553, we
remanded the case concluding the district court did not make specific findings
regarding whether the material change in circumstances resulted in a general
decline or adversely affected the children. Upon reviewing the district court’s
findings on remand, we reverse the judgment because the court once again
failed to make specific findings regarding whether the material change in
circumstances resulted in a general decline or adversely affected the children.
I
[¶2] Cassandra Smith and Joshua Goetz divorced in 2018 and have two minor
children together. In the original judgment, the district court awarded Smith
primary residential responsibility based on the parties’ agreement. Goetz was
awarded parenting time every other weekend and holiday. The court also
awarded the parties joint decision-making responsibility on all matters except
for daycare and spiritual development decisions, which were awarded to
Smith.
[¶3] In February 2021, Goetz moved to modify primary residential
responsibility due to co-parenting issues with Smith. He alleged she refused to
allow him communication with the children, held animosity towards his wife
and their children, and initiated a welfare check during his parenting time
without reason. After two evidentiary hearings, the district court awarded the
parties equal residential responsibility and awarded Goetz primary decision-
making responsibility. Smith appealed. We retained jurisdiction under
N.D.R.App.P. 35(a)(3)(B) and remanded with instructions that the district
court make specific findings regarding whether the material change in
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circumstances resulted in a general decline or adversely affected the children.
Goetz, 2023 ND 53, ¶ 10.
II
[¶4] Smith argues the district court erred in awarding equal residential
responsibility and giving Goetz primary decision-making responsibility. She
asserts there was not a material change in circumstances that adversely
affected the children or resulted in a general decline.
[¶5] “A district court’s decision on residential responsibility is a finding of fact
subject to the clearly erroneous standard of review.” Queen v. Martel, 2022 ND
178, ¶ 3, 980 N.W.2d 914. A finding of fact is clearly erroneous if it is induced
by an erroneous view of the law, if no evidence supports it, or if, after reviewing
the entire record, we are left with a definite and firm conviction a mistake has
been made. Id.[¶6] A district court may modify residential responsibility two years after an
order establishing primary residential responsibility if the court finds a
material change in circumstances and the modification is necessary to serve
the best interests of the child. N.D.C.C. § 14-09-06.6(6). To warrant
modification, the material change in circumstances must adversely affect the
child or result in a general decline in the child’s condition. Kunz v. Slappy, 2021
ND 186, ¶ 28, 965 N.W.2d 408.
[¶7] In Anderson v. Spitzer, the district court found a material change in
circumstances based on different parenting styles, inability to communicate,
and inability to agree on scheduling and discipline without any findings on
whether the child was adversely affected. 2022 ND 110, ¶ 9, 974 N.W.2d 695.
In Spitzer, the court found: “By all accounts, P.T.S. appears to be developing
well. He is an accomplished athlete and receives high academic marks.” Id. The
only challenge to that finding was an assertion P.T.S. has experienced anxiety
about being with Spitzer. Id. The court did not make any findings regarding
P.T.S.’s anxiety. Id. In Spitzer, we reversed because the findings did not
indicate how changed circumstances adversely affected the child or his
condition. Id. at ¶ 10.
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[¶8] Here, even after being specifically instructed to indicate how the changed
circumstances adversely affected the children, the district court made no such
findings. The court made a variety of findings regarding the parties’ differing
parenting styles, inability to communicate, and overall disagreements. The
court also discussed Smith’s animus towards Goetz and his new family. The
court’s findings regarding Smith’s concerning behaviors constituting a
material change in circumstances were not clearly erroneous. However, the
court failed to complete the next required step of the analysis because it did
not make any specific findings regarding how the material change in
circumstances resulted in a decline of any kind in the children. Slappy, 2021
ND 186, ¶ 28. Rather, the court noted the children are overall normal and have
a good relationship with their step-family. Although we do not condone Smith’s
behavior, the district court’s determination that it was in the children’s best
interests to modify primary residential responsibility without finding an
adverse effect or declining condition of the children was induced by an
erroneous view of the law and is clearly erroneous. Slappy, 2021 ND 186, ¶ 28.
III
[¶9] The district court erred in modifying primary residential responsibility
without finding the children were adversely affected or evidence of a general
decline in the children’s conditions. The court’s corrected amended judgment
is reversed.
[¶10] Jon J. Jensen, C.J.
Lisa Fair McEvers
Jerod E. Tufte
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Nelson, Surrogate Judge, dissenting.
[¶11] I respectfully dissent from the majority’s decision to reverse the decision
of the district court.
[¶12] The district court judge and the parenting investigator both gave a
detailed analysis of the best interest factors and they both came to the same
conclusion: that the parents should have joint parenting responsibility and
that Joshua Goetz should have primary decision-making responsibility—the
primary reasons in both analyses being Cassandra Smith’s concerning
behaviors since the divorce. According to N.D.C.C. § 14-09-06.6(6), this is all
that is necessary in either an original custody or visitation decision or a
modification after two years since the original judgment. Section 14-09-06.6(6),
N.D.C.C., states the district court may modify residential responsibility two
years after an order establishing primary residential responsibility if the court
finds a material change in circumstances and the modification is necessary to
serve the best interests of the child.
[¶13] Based on the record, I am not left with a definite and firm conviction a
mistake has been made in modifying the custody arrangement to award the
parties equal residential responsibility and giving Goetz primary decision-
making responsibility. I do not believe the district court’s decision was clearly
erroneous because it was based on concerning behaviors exhibited by Smith
which is clearly not in the best interests of the children. However, our case law
requires the court to take its analysis a step further than just the best interest
factors. The court must also find that the material change in circumstances
that led to a modification of a custody arrangement must adversely affect the
child or result in a general decline in the child’s condition. Kunz v. Slappy, 2021
ND 186, ¶ 28, 965 N.W.2d 408. In Anderson v. Spitzer, 2022 ND 110, ¶ 9, 974
N.W.2d 695, this Court reversed because the findings did not indicate how
changed circumstances adversely affected the child or his condition.
[¶14] This Court remanded this case after concluding the district court did not
make specific findings regarding whether the material change in
circumstances adversely affected the children or resulted in a general decline
in the children’s condition. Goetz v. Goetz, 2023 ND 53, ¶ 1, 988 N.W.2d 553.
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Although I admit the district court did not make these specific findings as
required, ample evidence exists in the record that could have led to such
findings, such as: both children reporting they wanted Smith to stop hitting
them, Smith’s emotional abuse of the children, Smith’s inflexibility, Smith’s
controlling tendencies, Smith’s large overreaction at any slight change in
parenting plan by Goetz, Smith’s use of the children as pawns in her fighting
with Goetz, Smith’s attempts to sabotage the children’s quality time with
Goetz, Smith’s harassing phone calls when the children are with Goetz, Smith’s
unfounded requests for welfare checks while the children are with Goetz,
Smith’s removal of the children from paternal grandparents’ daycare for no
apparent reason, and Smith’s termination of L.G.’s violin lessons taught by her
paternal grandfather for no apparent reason. This evidence was contained in
the Parenting Investigation Report completed by a court-appointed
investigator who has no personal objective in the matter.
[¶15] Although the seemingly magic words of “adversely affected” or “general
decline in the children’s conditions” were not used in the district court’s order,
it is clear that such criteria were met upon a review of the record—specifically
a review of the parenting investigator’s report and testimony. To reverse the
now established parenting plan would be to put form over substance and would
ignore what has been clearly established as the best interest of the children
simply to punish the lower court for a violation of a rule of construction. One
could certainly infer from the record how Smith’s behavior adversely affected
the children. The children here have lived in each parent’s home for over a year
and to uproot them once again would be inconsistent with the goals of our case
law which support “stability and continuity” for children. By reversing, this
Court seems to be ignoring the best interest factors. The record supports the
children are better off with the joint custody arrangement. The court’s decision
to award equal primary residential responsibility was not clearly erroneous.
[¶16] Stacy J. Louser, D.J.
David W. Nelson, S.J.
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[¶17] The Honorable Stacy J. Louser, D.J., and the Honorable David W.
Nelson, S.J., sitting in place of Crothers, J., and Bahr, J., disqualified.
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