Appeal from the District Court of Golden Valley County, Southwest Judicial District, the Honorable William A. Herauf, Judge.
The opinion of the court was delivered by: Sandstrom, Justice.
[¶1] Paul Lechler appeals from district court orders denying his motion to change the primary residential responsibility for his son and daughter to himself and granting Barbara A. Lechler's motion to have the children returned to her. We conclude the district court did not err in refusing to interview the children in chambers to learn their preferences for primary residential responsibility, and the court's finding that there had been no material change of circumstances to support a change of primary residential responsibility is not clearly erroneous. We affirm.
[¶2] In September 2003, the parties were divorced under the terms of a settlement agreement that awarded Barbara Lechler primary residential responsibility for the couple's two children subject to reasonable visitation by Paul Lechler. In May 2006, the district court granted her motion to permit her to change the residence of the children from Beach to Baker, Montana. The order also modified the visitation provisions of the divorce decree. Paul Lechler opposed the motion, but did not appeal the court's final decision.
[¶3] In August 2009, Paul Lechler moved to change the primary residential responsibility for the children from Barbara Lechler to himself, and she responded with a motion to hold him in contempt for failing to return the children to her after summer visitation and for enrolling them in the Beach school system. He alleged in an affidavit that his son, age 16 at the time, and daughter, age 12 at the time, preferred to live with him at his farm near Beach, that Barbara Lechler had committed domestic violence during an altercation with the son when she took away his cell phone, and that the best interests of the children would be better served if they resided with him.
[¶4] Before the hearing on the motions, the court notified the parties that "[u]nless the Court otherwise orders, evidence either in support of or in opposition to the motion must be presented by affidavit," and that the affidavits would not be considered "unless, at the time of the evidentiary hearing, the party offering the affidavit makes the affiant available for cross[-]examination." The parties did not object to this condition, but Paul Lechler told the court in a supplemental affidavit:
I am not comfortable with submitting affidavits of our children subjecting them to a court appearance. However, since the Court has more experience in this area than me, if the Court wishes to visit with our children and instructs me to make the children available to the Court, I will do so.
[¶5] During the evidentiary hearing, Barbara Lechler objected to the district court's interviewing the children in chambers. The parties were cross-examined regarding the claims made in their affidavits, but the court did not interview the children in chambers about their residential preferences because the parties would not "stipulate that I meet with them in chambers separately and just have a talk with them." The court denied Paul Lechler's motion, finding that he failed to establish a material change of circumstances to justify changing primary residential responsibility for the children. The court also denied Barbara Lechler's motion for contempt and ordered the parties "to immediately work on the custody getting back to Ms. Lechler." After Paul Lechler failed to return the children to Barbara Lechler, the court issued an order for the return of the children to her care by 4 p.m. on October 20, 2009.
[¶6] The district court had jurisdiction under N.D. Const. art. VI, § 8, and N.D.C.C. § 27-05-06. Paul Lechler's appeal is timely under N.D.R.App.P. 4(a). This Court has jurisdiction under N.D. Const. art. VI, §§ 2 and 6, and N.D.C.C. § 28-27-01.
[¶7] Paul Lechler argues the district court erred in failing to grant his motion to change the primary residential responsibility for the children.
[¶8] Motions to modify primary residential responsibility after two years from entry of a previous order are governed by N.D.C.C. § 14-09-06.6(6), which provides:
The court may modify the primary residential responsibility after the two-year period following the date of entry of an order establishing primary ...