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Dufner v. Trottier

February 17, 2010

JOE M. DUFNER, PLAINTIFF AND APPELLEE
v.
KERRY A. TROTTIER, F/K/A KERRY A. DUFNER, DEFENDANT AND APPELLANT



Appeals from the District Court of Grand Forks County, Northeast Central Judicial District, the Honorable Debbie Gordon Kleven, Judge.

The opinion of the court was delivered by: Crothers, Justice

AFFIRMED IN PART, REVERSED IN PART, AND REMANDED.

[¶1] Kerry Trottier appeals the district court's third amended judgment modifying her visitation and the district court's order denying an evidentiary hearing on her motion to modify custody. We affirm the modification of visitation, concluding the district court did not err by finding that a material change of circumstances existed and that the best interests of the children are served by modifying visitation. We reverse and remand the denial of an evidentiary hearing on the motion to modify custody, concluding the district court improperly considered its in-chambers interview with the parties' children to determine if Trottier established a prima facie case.

I.

[¶2] Trottier married Joe Dufner in 1994, and they have two minor children together. Dufner works as a farmer in Buxton, North Dakota, and Trottier works as a coding specialist in Grand Forks, North Dakota. The parties lived in their Buxton home until their separation in 1999, after which Trottier moved to Grand Forks and Dufner remained in the marital home. The parties divorced in 2001 when the children were five and three years old. The district court granted Dufner primary physical custody of the children with Trottier receiving visitation three weekends a month, alternating holidays and the majority of the children's summer vacation. The weekend visits began on Friday at 5:30 p.m. and ended on Sunday at 7:30 p.m.

[¶3] Both Dufner and Trottier have remarried. Dufner and his wife live in Buxton, and Trottier and her husband live in Grand Forks. The parties' children are now 9th and 7th graders, and both participate in sports.

[¶4] On April 21, 2009, Dufner moved for reduction of Trottier's visitation. Dufner claimed a reduction would be in the children's best interests because the current visitation schedule conflicts with the children's extracurricular activities, resulting in conflict between the parents and unreasonable travel demands on the children. Trottier filed a response brief on May 6, 2009, alleging the purpose of Dufner's request was to alienate her from the children. On May 21, 2009, Trottier filed a motion requesting that custody be modified to give her primary physical custody of the children. Trottier's supporting brief indirectly requested an evidentiary hearing on the matter. Also on May 21, 2009, Trottier moved for a stay of the visitation hearing scheduled for May 26, 2009. Trottier's motion to stay was effectively denied when the visitation hearing was held on May 26, 2009. The district court conducted an in-chambers interview with the parties' two children on May 28, 2009. On July 6, 2009, the district court ordered Trottier's visitation be reduced and denied Trottier's request for an evidentiary hearing on her motion to modify custody. The district court concluded,

"Trottier has failed to establish a prima facie case that a material change in circumstances has occurred to justify a change of custody. In this case, the children are doing [well] in the physical care of Dufner and the only change that has occurred is that the children have become young adolescents who, like others [sic] children of divorce, simply want a say in the visitation schedule. Consequently, it is appropriate to modify the visitation schedule to address what is needed for young adolescent children but it is not appropriate to change custody."

[¶5] Trottier timely filed this appeal.

II.

[¶6] Trottier argues the district court erred by reducing her visitation because the court placed disproportionate weight on the children's preference to live with Dufner. "A district court's decision to modify visitation is a finding of fact, which will not be reversed unless clearly erroneous." Hanson v. Hanson, 2005 ND 82, ¶ 20, 695 N.W.2d 205. "A finding of fact is clearly erroneous if it is induced by an erroneous view of the law, there is no evidence to support it, or if, although there is some evidence to support the finding, on the entire evidence, we are left with a definite and firm conviction a mistake has been made." Kienzle v. Selensky, 2007 ND 167, ¶ 14, 740 N.W.2d 393. This Court "do[es] not reweigh evidence or reassess witness credibility when the evidence supports the [district] court's findings." Id. To modify visitation, the moving party must demonstrate that a material change in circumstances has occurred since entry of the previous visitation order and that the modification is in the best interests of the child. Ibach v. Zacher, 2006 ND 244, ¶ 8, 724 N.W.2d 165.

A.

[¶7] For purposes of modifying visitation, a material change of circumstances occurs when important new facts arise that were unknown at the time of the initial visitation order. Helfenstein v. Schutt, 2007 ND 106, ¶ 18, 735 N.W.2d 410. In Reinecke v. Griffeth, a material change of circumstances existed when the visitation schedule allowing the non-custodial parent two weeknight visits during the school year caused conflict between the parents, behavioral problems for the children at home and poor performance at school. 533 N.W.2d 695, 698-99 (N.D. 1995).

[ΒΆ8] Here, the district court found a material change of circumstances based on the children's increased time demands for extracurricular activities, the children's desire to spend more time with Dufner at his Buxton home and the children's exposure to the conflict between Dufner and Trottier over the visitation schedule. The record reflects that both children participate in high school sports and that the after- school and weekend time requirements of their activities has increased significantly since the original visitation schedule was established. The conflict over Trottier's weekend visits stems from the increased time requirements and particularly from the children's practices and games on Friday nights and Saturdays. Affidavits from both Dufner and Trottier demonstrate the contention over when Trottier's visitation begins and who is required to provide transportation when the children have weekend activities. The record also supports the children's preference to live with Dufner. The children stated that they prefer to live with Dufner because his Buxton home is significantly closer to their school and friends than is Trottier's Grand Forks home. Finally, though not cited as a material change of circumstances, both Dufner and Trottier have remarried and live ...


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