Appeal from the District Court of Morton County, South Central Judicial District, the Honorable David E. Reich, Judge.
The opinion of the court was delivered by: Kapsner, Justice.
[¶1] Jeremiah Cramer appeals from an order denying his motion to modify custody of the child he has with Jan Desjarlais ("Desjarlais"), formerly known as Jan Teske and Jan Thorson. Cramer contends the district court misapplied the law and its decision is not supported by the evidence. We affirm, concluding the court correctly applied the law and its decision is not clearly erroneous.
[¶2] Cramer and Desjarlais have one child together, who was born in 1999. In a 2003 judgment, the court found Cramer is the child's father and established a child support obligation for him. A September 6, 2006, amended judgment awarded Desjarlais sole custody of the child and granted Cramer visitation. Cramer did not consistently pay child support until after the amended judgment was entered.
[¶3] In 2001, Desjarlais married David Thorson. Later that year, Thorson was convicted of child molestation for conduct involving another child. Desjarlais thereafter sent her child to stay with her mother, and Desjarlais and Thorson were divorced in 2007.
[¶4] In November 2007, Desjarlais began a relationship with Larry Desjarlais. At the time, Larry Desjarlais was an inmate of the Department of Corrections and was living at the Bismarck Transition Center, and Desjarlais was living in Mandan. On February 27, 2008, Desjarlais and Larry Desjarlais traveled to Bottineau, taking the child with them. Larry Desjarlais's actions violated the terms of his sentence, and Desjarlais testified she was aware that he was a fugitive from justice. Larry Desjarlais became upset with the child and threatened the child while they were staying at a hotel and Desjarlais had to remove the child from the room. On March 2, 2008, Desjarlais brought the child to Mandan, dropped her off at school the next morning, returned to Bottineau, and asked her mother to pick the child up after school and take care of her. Desjarlais married Larry Desjarlais on March 4, 2008. Larry Desjarlais was apprehended a few months later.
[¶5] On March 22, 2008, Cramer learned about the child's situation when he went to Mandan for visitation with the child. Cramer picked the child up at her grandmother's house and then took the child with him to Minot, where he resides. Desjarlais returned to Mandan after learning the child was with Cramer.
[¶6] On March 26, 2008, Cramer moved to modify custody and requested an ex parte interim order granting him temporary custody of the child. He argued it was in the child's best interest to modify custody because Desjarlais married Larry Desjarlais, Larry Desjarlais is a fugitive from justice, Desjarlais took the child with her and Larry Desjarlais, and the child is scared of Larry Desjarlais. The court found there was good cause for an ex parte order and awarded Cramer temporary custody of the child.
[¶7] Desjarlais resisted Cramer's motion to modify custody, arguing it is in the child's best interests that she have custody because Cramer has a criminal record and is over $18,000 in arrears on his child support payments. In April 2008, the court decided Cramer had established a prima facie case to modify custody. The court concluded Cramer would have the burden of proving modification is necessary to serve the child's best interests and that the child's environment may endanger her health under N.D.C.C. § 14-09-06.6(5), because the motion was made within two years of the September 2006 order establishing custody.
[¶8] At hearings on the motion in June 2008 and August 2008, Cramer argued modification was necessary because of Desjarlais's relationship with Larry Desjarlais and because the child had excessive school absences while in Desjarlais's care. Desjarlais argued her relationship with Larry Desjarlais had ended and the child missed school because of health problems.
[¶9] In January 2009, the court issued an order, finding a change in custody was not necessarily in the child's best interests and it did not appear the child's present environment with Desjarlais would endanger her health or emotional development, but the court requested further information about Desjarlais's living situation and her relationship with Larry Desjarlais. In February 2009, Cramer moved for a continuance and to reopen the record, arguing further discovery was necessary due to recent changes in Desjarlais's situation. Cramer also argued the two- year statutory limitation on modifying custody no longer applied because more than two years had elapsed since the September 2006 order establishing custody.
[¶10] At a May 2009 hearing, the parties presented further evidence, and the court entered a June 2009 order denying Cramer's motion to modify custody. The court found it was not in the child's best interests to modify custody and the child's environment with Desjarlais does not endanger her physical or emotional health or impair her emotional development.
[¶11] Cramer thereafter moved for a stay of execution of judgment pending appeal. During a hearing on the motion, the court denied the motion for a stay, and Cramer's attorney said: And I want to make this just in case the Court later contends I didn't raise the issue at the trial court level. I don't believe the limitations of the-the statutory limitations as to a motion brought within two years of the preceding motion apply, because we had the hearings after the two years had expired, and I believe also the prior Order may have been by stipulation. But I just want to raise that issue that I don't believe it applies so it's preserved.
The court stated that issue was not raised before the court denied Cramer's motion to modify custody and the court had not previously heard an argument that it applied the wrong standard. A written order, denying Cramer's motion for a stay of execution, was subsequently entered.
[¶12] Cramer argues the district court applied the wrong statutory standard for modifying custody. Cramer moved to modify custody within two years of a prior order establishing custody, but he claims the limitation on modification within two years of a prior order establishing custody does not apply because N.D.C.C. § 14-09-06.6(6) states that a "court may modify a prior custody order after the two-year period" following a prior order establishing custody has expired and the court entered the order deciding his current motion more than two years after the 2006 amended judgment. Although the district court did not specifically address this argument, Cramer raised the issue before the June 2009 order denying his motion was entered. We conclude Cramer properly preserved this issue for appeal.
[¶13] Section 14-09-06.6, N.D.C.C.,*fn1 provides the statutory requirements for post-judgment custody modifications, and states, in part:
1. Unless agreed to in writing by the parties, no motion to modify a custody order may be made earlier than two years after the date of entry of an order establishing custody, except in accordance with subsection 3.
3. The time limitation in subsections 1 and 2 does not apply ...