Niemann v. Niemann , 2008 N.D. LEXIS 45 ( 2008 )

MARING, Justice,

dissenting in part and concurring in part.

[¶ 23] I respectfully dissent from parts I and HA. I would affirm the order of the trial court in its entirety.

[¶ 24] On August 11, 2005, Lyle Niem-ann moved for change of custody to establish him as the custodial parent of both of the parties’ minor children and not just his son as the majority states. The Court found a prima facie case had been established based upon the fact that the daughter had resided with the father, Lyle Niemann, for more than one year. An evidentiary hearing was scheduled and held July 31, 2006. Prior to the hearing, the parties stipulated to the change in the physical custody of the minor daughter from Heidi Wolf to Lyle Niemann. Therefore the only custody issue before the trial court was whether there should be a change in the custodial arrangement for the parties’ minor son.

[¶ 25] The record indicates that Lyle Niemann moved to change custody previously on July 25, 2001. In 2001, Lyle Niemann alleged in his affidavit that Heidi Wolf had been remarried to Vance Wolf; that Vance Wolf and Heidi Wolf were having keg parties and drinking excessively; and that the minor children were abused emotionally and physically by Vance Wolf and neglected by Heidi Wolf. Both parties stipulated to have the issues determined by the court without hearing on August 2, 2001. The trial court held that Lyle Niem-ann had not established a prima facie case for an evidentiary hearing and denied his motion on October 19, 2001. The relevant inquiry is whether there has been a significant change in circumstances since 2001.

Section 14-09-06.6(6), N.D.C.C., provides:

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.

[¶ 26] For the purpose of a motion to modify custody, a material change in circumstances is defined as important new facts unknown to the court at the time of the prior custody order. Kelly v. Kelly, 2002 ND 37, ¶ 17, 640 N.W.2d 38.

[¶ 27] I disagree with the majority’s statement of the “two-step” test. The statute specifically requires a material change in the circumstances of the child or the parties and that “modification is necessary to serve the best interest of the child.” N.D.C.C. § 14 — 09—06.6(6)(b) (emphasis added); see Kelly, 2002 ND 37, ¶ 44, 640 N.W.2d 38 (Maring, J., concurring). I also disagree with the majority’s implication that the trial court misapplied or misapprehended the law with regard to domestic violence. The trial court considered the mother Heidi Wolfs version of what happened in May 2005 and the minor daughter’s version and found the mother’s explanation credible. In the trial court’s September 20, 2006, Order Denying Motion for Reconsideration, the court stated:

This incident did not rise to the level of domestic violence but rather is an isolated domestic disagreement. While such disagreements and conduct should be avoided, it surely is not the basis for a material change of circumstances.

In the parties’ Stipulation to Correct and Supplement the Record, the trial court’s findings included a sentence left out by the majority:

If there is no domestic violence, and only strong words, that is not good, but the incidents in 2002 and then in 2005 don’t rise to the level of domestic violence as we recognize it The court does not find that credible domestic violence or a pattern of domestic violence exists.

(Emphasis added.) This Court has never held that loud words or domestic disagreements amount to domestic violence.

[¶ 28] The trial court did not find any credible evidence of domestic violence. It did not find “physical harm, bodily injury, sexual activity compelled by physical force, assault, or the infliction of fear of imminent physical harm, bodily injury, sexual activity compelled by physical force, or assault, not committed in self-defense, on the complaining family or household members.” See N.D.C.C. § 14-07.1-01(2).

[¶ 29] The majority makes a finding that the testimony of the daughter is evidence of the daughter’s fear of imminent physical harm. The daughter said in her affidavit about the incident in May 2005, “It was really scary.” In her testimony, she said she was afraid of Vance Wolf and when asked why she said, “[h]e just scares me.” There is no evidence she was in fear of imminent physical harm, and the trial court did not make any such finding. The majority is reweighing the evidence, thereby ignoring precedent and applying a de novo standard of review. This Court has held that when two parties present conflicting testimony on issues of fact, we will not redetermine the trial court’s findings based upon that testimony. Roberson v. Roberson, 2004 ND 203, ¶ 10, 688 N.W.2d 380. Here, the trial court found the mother’s version of what occurred credible and impliedly did not find the testimony of the daughter that there was physical violence credible.

[¶ 30] Although the majority is correct that we have held that domestic violence does not need to be directed to a child to have a harmful effect on the child, there is no finding of domestic violence in this case, only a loud and strongly worded domestic disagreement. Such a finding is not a material change in circumstances necessitating a modification of custody in the best interest of the minor son, who was the only child left at issue.

[¶ 31] The majority, at ¶ 16, goes on to find “the new split-custody arrangement also appears to be a material change in circumstances” as a matter of law. The parties stipulated to this split after the parties’ minor daughter stated a preference to live with her father. If this amounts to a material change as a matter of law, it will discourage parties from settling custody disputes such as this. There is little, if any, evidence in this record about the relationship between the minor daughter and the minor son. What is there is lacking in detail and substance. There is no evidence they spend a substantial amount of time together or share any activities or interests. The trial court specifically found in its September 5, 2006, Order Denying Defendant’s Motion to Modify Custody:

2. [Lyle Niemann] has failed to show a significant change in circumstances relating to the following areas: ... (5) the relationship between [the minor daughter] and [the minor son] to justify an analysis of the best interest of the child factors under North Dakota Century Code Section 14-09-[0]6.2.

Again this Court is reweighing evidence and second-guessing the trial court’s credibility determinations. The trial court’s order is not clearly erroneous. I respectfully dissent and would affirm the order in its entirety.

[¶ 32] Daniel J. Crothers