Woods v. Ryan

2005 ND 92, 696 N.W.2d 508, 2005 N.D. LEXIS 108, 2005 WL 1150238

• Court: North Dakota Supreme Court
• Decided: May 17, 2005
• Docket: 20040227
• Status: Published

Opinions

SANDSTROM, Justice.

[¶ 1] Jennifer Ryan, formerly known as Jennifer Woods, appealed an amended judgment changing child custody in a divorce action brought by Thomas J. Woods. We affirm.

I

[¶ 2] In accordance with their stipulation, Woods, who was then 24, and Ryan, who was then 18, divorced in 2000. The judgment (1) granted Woods a divorce; (2) granted the parties joint legal custody of their child; (3) granted Ryan physical custody of the child and gave Woods liberal visitation; (4) ordered Woods to pay child support of $255 per month; (5) listed Ryan’s address as 1105 5th Ave. NW in Minot; (6) indicated Ryan was unemployed; and (7) divided the parties’ property and debts.

[¶ 3] In 2003, Woods moved to amend the divorce judgment to grant him custody of the parties’ child. Woods supported the motion with a brief and an affidavit asserting, among other things: (1) The parties’ child “lives with his grandparents, David and Barbara Rust.” Ryan “does not reside at this residence, and it is unknown where she resides;” (2) He can provide his son with a stable environment in his home; (3) Ryan “is not working, has no permanent address, and has' been in jail on several occasions for various offenses, including drug related activities;” and (4) “I have the necessary skills, desires, and ability to care for my child, and I feel it [is] in his best interests to be raised by me, as opposed to his grandparents.”

[¶ 4] Ryan responded with an affidavit stating, among other things: (1) “Since the entry of Judgment of Divorce, she has lived and continues to live with her parents in Minot and has resided nowhere else, except for a one-month period in 2002;” (2) “There has been no significant change of circumstances since the divorce;” (3) “Allegations that she has turned over custody of her son to her parents and does not reside in her parent[]s[’] home are completely groundless and false;” (4) Them child “has lived in a stable and satisfactory home environment with Jennifer and her parents;” (5) “While the allegations of [Woods’] affidavit that I have been in jail are correct, the offenses were for driving under suspension and without insurance, and one time only for possession of drug paraphernalia;” and (6) Woods “has not regularly exercised visitation.” Ryan’s mother filed an affidavit averring, among other things: (1) Ryan and the parties’ child have lived with her and her husband since the time of the divorce, except for one month in • 2002; (2) Ryan “has not turned over custody of [the child] to me and my husband, nor has she moved out of our home,” and (3) Woods “has, not regularly exercised visitation.”

[¶ 5] The district court issued an order finding Woods “has established a prima facie case for custody modification.” After a hearing, the court issued a memorandum and order. The court found a material change of circumstances:

Jennifer has been chronically unemployed since the August 2000 divorce. She has had spasms of employment in the period of August 2000 to January 16, 2004. The evidence was uncontested that Jennifer has been unwilling or unable to step up and help support [the child]. Her parents have supported her and [the child]. Child support does not begin to cover [the child’s] needs. Sadly, Jennifer and her mother appear to be content for over three years for Jennifer to live off her parents. At trial, Jennifer was pregnant. Jennifer testified that she has a number of fines and that her mother pays her fines for her in return for some work she does around the house. Clearly, Jennifer needs to get a job so she can better support [the child], herself, and her new baby. Her three years of chronic unemployment is a material change of circumstance when other factors are taken into account.

Jennifer denied that she turned over care of [the child] to her parents.... While not finding Jennifer has turned complete care of [the child] over to anyone, the Court does find that Jennifer’s parents and grandparents have no doubt [ ] had significant involvement with [the child] on a near day to day basis.

In further support of his position that there has been a change in circumstances, Tom pointed to Jennifer’s arrests in 2003 ... the numerous convictions and time of arrest, involved — even as to charges dismissed — do not support her position in regard to the overall material change of circumstances issues. This point is amplified by Jennifer’s three years of chronic unemployment and the repetitive 2003 early morning arrests coming on [the] heels of the chronic unemployment and then her apparent secret marriage to Chris Ryan only to be followed a short time later by separation and her return to her parents’ home.

Cumulatively, taking the above factors into account, this Court finds there has been a material change of circumstances. This conclusion is supported by Tom’s actions since the August, 2000, divorce which include his marriage to and the stable lifestyle they have established.

The trial court found that “a change in custody is necessary for the best interests of’ the parties’ child. An amended judgment was entered that granted Woods’ motion to amend the judgment, fixed a visitation schedule, and fixed Ryan’s child support obligation. Ryan appealed.

[¶ 6] The district court had jurisdiction under N.D. Const, art VI, § 8,' and N.D.C.C. § 27-05-06. The appeal was timely under N.D.R.App.P. 4(a). This Court has jurisdiction under N.D. Const, art. VI, § 6, and N.D.C.C. § 28-27-01.

II

[¶ 7] Ryan has raised the following issue on appeal: “Whether the District Court erred when it determined that Thomas J: Woods Sr. had proven a material change in circumstances that necessitated a change of custody for [the parties’ child] from his mother, Jennifer Ryan f/n/a Jennifer Woods.”

[¶ 8] The test for changing the custody of a child is set forth in N.D.C.C. § 14-09-06.6(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.

[¶ 9] “A district court’s decision whether to change custody is a finding of fact subject to the clearly erroneous standard of review.” Kelly v. Kelly, 2002 ND 37, ¶ 13, 640 N.W.2d 38. Section 14-09-06.6(6), N.D.C.C., requires a court to use a two-part analysis in deciding whether or not to change custody of a child. First, the “court must consider whether there has been a material change of circumstances since the original custody decree.” Kelly, at ¶ 15. “[I]f the court decides there has been a material change in circumstances, it must decide whether a change in custody is necessary to serve the best interests of the child.” Id. A party seeking modification of an existing custody order bears the burden of proof. Id. at ¶ 17. “ ‘A trial court’s findings of fact are presumptively correct, and we view the evidence in the light .most favorable to the findings.’ ” Reineke v. Reineke, 2003 ND 167, ¶ 12, 670 N.W.2d 841 (quoting Schmidt v. Schmidt, 2003 ND 55, ¶ 5, 660 N.W.2d 196). “The burden is on the complaining party to demonstrate on appeal that a trial court’s finding of fact is clearly erroneous.” Marschner v. Marschner, 2002 ND 67, ¶ 4, 642 N.W.2d 857. “A trial court’s opportunity to observe the witnesses and determine credibility should be given great deference.” Frieze v. Frieze, 2005 ND 53, ¶8, 692 N.W.2d 912. “We give due regard to the trial court’s opportunity to assess the credibility and observe the demeanor of witnesses, see Wagner v. Wagner, 2000 ND 132, ¶ 12, 612 N.W.2d 555, 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.” Corbett v. Corbett, 2001 ND 113, ¶ 6, 628 N.W.2d 312. ‘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.” Id.

[¶ 10] Section 14-09-06.2(1), N.D.C.C., provides 13 factors for consideration in determining the best interests and welfare of a child:

For the purpose of custody, the best interests and welfare of the child is determined by the court’s consideration and evaluation of all factors affecting the best interests and welfare of the child. These factors include all of the following when applicable:

a. The love, affection, and other emotional ties existing between the parents and child.

b. The capacity and disposition of the parents to give the child love, affection, and guidance and to continue the education of the child.

c. The disposition of the parents to provide the child with food, clothing, medical care, or other remedial care recognized and permitted under the laws of this state in lieu of medical care, and other material needs.

d. The length of time the child has lived in a stable satisfactory environment and the desirability of maintaining continuity.

e. The permanence, as a family unit, of the existing or proposed custodial home.

f. The moral fitness of the parents.

g. The mental and physical health of the parents.

h. The home, school, and community record of the child.

i. The reasonable preference of the child, if the court deems the child to be of sufficient intelligence, understanding, and experience to express a preference.

j. Evidence of domestic violence.....

k. The interaction and interrelationship, or the potential for interaction and interrelationship, of the child with any person who resides in, is present, or frequents the household of a parent and who may significantly affect the child’s best interests ....

l. The making of false allegations not made in good faith, by one parent against the other, of harm to a child as defined in section 50-25.1-02.

m. Any other factors considered by the court to be relevant to a particular child custody dispute.

[¶ 11] Improvements in the life of a noncustodial parent seeking to modify a child custody order “would not, by themselves, constitute a significant change in circumstances.” Kelly v. Kelly, 2002 ND 37, ¶20, 640 N.W.2d 38. A parent’s unemployment may be considered. See Krank v. Krank, 2003 ND 146, ¶ 10, 669 N.W.2d 105 (evidence supported the trial court’s findings under N.D.C.C. § 14-09-06.2(l)(c) where “the court found that the evidence shows the child’s father has a history of employment at good paying jobs and is a good provider while the mother is currently unemployed”).

“In a modification proceeding, the best interests of the child must be gauged against the backdrop of the stability of the child’s relationship with the custodial parent.” Blotske [v. Leidholm], 487 N.W.2d [607,] 610 [(N.D.1992)]. “[I]f the previous custody placement was based upon the parties’ stipulation and not by consideration of the evidence and court made findings, the trial court must consider all relevant evidence, including pre-divorce conduct and activities, in making a considered and appropriate custody decision in the best interests of the children.” Welch v. Welch, 539 N.W.2d 309, 312-13 (N.D.1995).

Kelly, at ¶ 22. In this case, the previous custody placement was based on the parties’ stipulation.

[¶ 12] Of the thirteen factors for consideration under N.D.C.C. § 14-09-06.2(1), the trial court found factors a, b, d, e, h, and m do not favor either party, while factors i, j, and l do not apply to this case. The court found that factors c, f, and g favor Woods, explaining:

When compared to Jennifer and her dependence on her parents, Factor “c” favors Tom by his earnings from his employment. Tom’s stable lifestyle shines undér Factor “f” when compared to Jennifer’s very hectic 2003 which saw her arrested a number of times-even late at night, her secret marriage and move out of her parents^] home only to separate from her spouse and move back home less than a month later. Factor “g” favors Tom since Jennifer has experienced some 3 years of chronic unemployment and in less than a 30-day period in 2003, she moved out of her parents^] house, became pregnant by her unemployed spouse, and found it necessary to move back home and thereby separated from her new spouse. Such a series of events certainly has to take a toll mentally on any sane and strong person. -Such a toll was noted in Jennifer’s demeanor at the January hearing.

The court found factor k favors Ryan:,

Jennifer is favored by Factor “k” through her parents^] and grandparents[’] interaction with [the parties’ child]. It is well established that a trial court, as a part of the best interest of the child, must take stability of said child’s relationship with the custodial parent into account in a modification proceeding. Id. Testimony was received that Jennifer has a good relationship with [the child] and that she has been his only primary care giver. Yet, uncontested testimony was received that Jennifer would move out of her parents’ home once she is financially stable. Additionally, Tom has had a solid and close relationship with [the parties’ child] except when Tom was [ ] on TDY or Jennifer was making what appear to be for the most part somewhat lame excuses to put off [the child’s] visitation with his father. Thus, the stability factor in this case is greatly diminished.

[¶ 13] Ryan asserted in her brief that “[t]he trial court erred when it failed to take into consideration the impact that modifying custody would have on splitting [the parties’ child] from his unborn .sister.” However, the court considered it under factor m:

Factor “m” may be applicable to this case in regard to half-brother/sister [the child] has by way of Jennifer’s most recent pregnancy. However, no evidence was provided as to such and such a factor could well cut against Jennifer due to her inability to provide the necessities for [the child]. In the end, the Court finds Factor “m” does not favor either party.

[¶ 14] Ryan testified, among other things: Child support is her only source of income; her mother gives her money for daily expenses; she moved out of her parents’ house “[f]or a little under a month” when she and Chris Ryan got married, “but it didn’t work out with living oh our own so we moved back in;” she has been married a little over a year and her husband has been unemployed during that time; she is separated from her husband; she has three convictions for driving under suspension; she has been charged twice with driving without insurance and has been charged with exhibition driving; she was charged with criminal mischief at 1:15 a.m.; she pleaded guilty to a 1:53 a.m. drug paraphernalia .charge, for which she received a fine, which her mother has been paying; she does not have a valid driver’s license; and the criminal mischief charge and a driving-under-suspension charge were dropped.

[¶ 15] Ryan’s mother testified that she found out her “daughter was married ... [t]hrough the paper and then we asked her,” and that Mr. Ryan has never lived in her home. Ryan’s grandmother testified she visits the house where Ryan lives “four or five times a week,” she does not know where the father of Ryan’s unborn child lives and has met him only once, and she does not know where Ryan married.

[¶ 16] In light of the evidence of Ryan’s continued unemployment and secret marriage, the trial court’s assessment of her demeanor, and the evidence of Ryan’s early morning arrests for criminal mischief and possession of drug paraphernalia and her numerous convictions and arrests for driving under suspension, driving without insurance, and exhibition driving, there is evidence supporting the trial court’s findings -that consideration of factors c, f, and g under N.D.C.C. § 14-09-06.2(1) favors Woods, which, when balanced against the court’s finding that factor k favors Ryan, supports the court’s finding that “a change in. custody is necessary for the best interests of’ the parties’ child. We have not been left with a definite and firm conviction a mistake has been made. We conclude the trial court’s finding is not clearly erroneous.

HI

[¶ 17] The amended judgment of the district court is affirmed.

[¶ 18] CAROL RONNING KAPSNER, J., concur. [¶ 19] The Honorable WILLIAM A. NEUMANN, a member'of the Court when this case was heard, resigned effective March 14, 2005, and did not participate in this decision.