Hill v. Weber , 1999 N.D. LEXIS 79 ( 1999 )

MARING, Justice,

concurring in the result.

[¶ 19] It is well established in this Court’s prior decisions that when a party is seeking to modify a custody order, the trial court must apply a two step analysis. Mosbrucker v. Mosbrucker, 1997 ND 72, ¶ 6, 562 N.W.2d 390. The trial court must determine “1) [w]hether there has been a significant change of circumstances following the divorce and custody determination, and 2) whether the changes of circumstances effect [sic] the child in such an adverse way that it compels or requires a change in the existing custody arrangement to further the best interests of the child.” Id. (citations omitted).

[¶20] The Legislature recently enacted N.D.C.C. § 14-09-06.6(6), which governs modification of a prior custody order after the two-year period following the entry of that order. In this case, the last custody order was filed in April 1994 and the present motion was filed in January 1998, well past the two year period the statute requires before a custody modification motion can be made. N.D.C.C. § 14-09-06.6(6) provides:

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.

This statutory provision merely codifies the two step analysis of our prior case law. See Hearing on S.B. 2167 Before the Senate Judiciary Comm., 55th N.D. Legis. Sess. (Jan. 21, 1997) (testimony of family law practitioner Sherry Mills Moore). We have emphasized that “ ‘[b]efore a change of custody can be deemed necessary for the best interests of the child, there must be some consideration of the effect of the change on the child.’ ” Delzer v. Winn, 491 N.W.2d 741, 744 (N.D.1992) (quoting Orke v. Olson, 411 N.W.2d 97, 100 (N.D.1987) (emphasis added)). It is only that significant change in circumstance which “necessitates” or “requires” the change of custody in the best interest of the child. Ramstad v. Biewer, 1999 ND 23, ¶¶ 31-37, 589 N.W.2d 905 (Maring, J., dissenting); Ludwig v. Burchill, 481 N.W.2d 464, 469-70 (N.D.1992) (Levine, J., concurring specially).

[¶ 21] To the extent the majority opinion suggests that the two step analysis of the statute differs from the two step analysis set forth in our previous case law, I disagree.

[¶ 22] Mary Muehlen Maring