Anderson v. Spitzer

FILED
IN THE OFFICE OF THE
CLERK OF SUPREME COURT
MAY 26, 2022
STATE OF NORTH DAKOTA
IN THE SUPREME COURT
STATE OF NORTH DAKOTA
2022 ND 110Kate Austin Anderson, Plaintiff and Appellee
v.
Derek Thomas Spitzer, Defendant and Appellant
and
State of North Dakota, Statutory Real Party in Interest
No. 20210290
Appeal from the District Court of Cass County, East Central Judicial District,
the Honorable Reid A. Brady, Judge.
REVERSED.
Opinion of the Court by Crothers, Justice, in which Chief Justice Jensen and
Justices McEvers and Tufte joined, and Justice VandeWalle concurred in the
result.
Ashley R. Heitkamp, Fargo, ND, for plaintiff and appellee.
Gregory W. Liebl (argued) and Andrew V. Younker (on brief), Fargo, ND, for
defendant and appellant.
Anderson v. Spitzer, et al.
No. 20210290
Crothers, Justice.
[¶1] Derek Thomas Spitzer appeals from a second amended judgment entered
after he moved to amend the parenting judgment. He argues the district court
erred in granting primary residential responsibility, ordering child support,
and setting the parenting time schedule. We reverse.
I
[¶2] Spitzer and Kate Austin Anderson have a child, P.T.S., who was born in
2009. In 2010 the district court awarded Anderson primary residential
responsibility and ordered Spitzer to pay child support. In 2013 Spitzer moved
to amend the judgment and requested primary residential responsibility. The
court awarded joint residential responsibility, but Spitzer had slightly more
than 50% of the parenting time. The parties agreed to eliminate Anderson’s
child support obligation based on Spitzer’s income and their agreement to
share P.T.S.’s expenses.
[¶3] In 2020 Spitzer moved to amend the judgment, requesting primary
residential responsibility and a review of Anderson’s child support obligation.
Anderson filed a countermotion for primary residential responsibility. The
judicial referee appointed a parenting investigator, who recommended equal
residential responsibility with a parenting schedule for the school year,
summertime, and holidays. Evidentiary hearings took place in March 2021 and
April 2021. In August 2021, the judicial referee entered an order for a second
amended judgment granting Anderson primary residential responsibility and
requiring Spitzer to pay child support.
[¶4] Spitzer requested the district court review the judicial referee’s findings.
In September 2021, the court entered an order adopting the judicial referee’s
findings, which we now review as findings of the district court. Muchow v.
Kohler, 2021 ND 209, ¶ 4, 966 N.W.2d 910.
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II
[¶5] Spitzer argues the district court erred in awarding Anderson primary
residential responsibility. He asserts there was not a material change in
circumstances that adversely affected P.T.S. or resulted in a general decline of
P.T.S.’s condition. We agree.
[¶6] A district court’s decision to modify residential responsibility and
parenting time are findings of fact subject to clearly erroneous review. Krump-
Wootton v. Krump, 2019 ND 275, ¶ 10, 935 N.W.2d 534. “A finding of fact is
clearly erroneous if there is no evidence to support it, if it is induced by an
erroneous view of the law, or if we are convinced, on the basis of the entire
record, that a mistake has been made.” Id.[¶7] A district court may modify residential responsibility after two years of
an order establishing primary residential responsibility if the court finds a
material change in circumstances and 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.
[¶8] In Slappy, this Court reversed the district court’s modification of primary
residential responsibility because no evidence established the child was
adversely affected or that there was a general decline in the child’s condition.
2021 ND 186, ¶ 29. The moving parent alleged a change of circumstances based
on his changed work schedule, but he did not present evidence on why the
change was necessary for the child. Id. at ¶ 27. We noted the moving parent
“did not challenge the district court’s finding the child ‘is a healthy eight (8)
year old succeeding in school, sports and other extra-curricular activities and
interests.’” Id.
[¶9] Here, the district court found “By all accounts, P.T.S. appears to be
developing well. He is an accomplished athlete and receives high academic
marks.” Anderson’s only challenge to that finding is an assertion P.T.S. has
experienced anxiety about being with Spitzer. However, the court did not make
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any findings regarding P.T.S.’s anxiety. The court ultimately found a material
change in circumstances, based on the parties’ differing parenting styles,
inability to communicate and inability to agree on scheduling and discipline.
[¶10] The findings do not indicate how changed circumstances adversely
affected P.T.S. or his condition. Slappy, 2021 ND 186, ¶ 28. The district court’s
determination it was in the child’s best interests to modify primary residential
responsibility without finding an adverse effect or declining condition of P.T.S.
was induced by an erroneous view of the law and is clearly erroneous. Id. The
court’s order modifying the existing residential responsibility is reversed.
III
[¶11] The district court erred in modifying primary residential responsibility
without finding the child was adversely affected or evidence of a general
decline in the child’s condition. It is unnecessary to resolve the remaining
issues raised by the parties on appeal. The court’s second amended judgment
is reversed.
[¶12] Jon J. Jensen, C.J.
Daniel J. Crothers
Lisa Fair McEvers
Jerod E. Tufte
I concur in the result.
Gerald W. VandeWalle
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