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State v. Neustel

November 9, 2010

STATE OF NORTH DAKOTA, PLAINTIFF AND PAULETTE GUSSIAAS, N/K/A PAULETTE ALBRECHT, PLAINTIFF AND APPELLANT
v.
SHAWN R. NEUSTEL, DEFENDANT AND APPELLEE



Appeal from the District Court of Stutsman County, Southeast Judicial District, the Honorable Mikal Simonson, Judge.

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

AFFIRMED IN PART, REVERSED IN PART, AND REMANDED.

[¶1] Paulette Gussiaas, now known as Paulette Albrecht, appeals from a judgment granting Shawn R. Neustel's motion to change primary residential responsibility for the couple's daughter from Albrecht to himself. We conclude the district court's finding that a material change in circumstances had occurred is not clearly erroneous. We further conclude the court's findings on whether a change in primary residential responsibility was necessary to serve the best interests of the child lack sufficient specificity to allow us to conduct a meaningful appellate review of the issue. We affirm in part, reverse in part, and remand for the preparation of additional findings of fact.

I.

[¶2] Albrecht and Neustel, who were never married to each other, have a daughter born in 2002. They lived together along with Albrecht's son from a previous relationship. After Albrecht and Neustel separated, a paternity judgment was entered in 2005 awarding Albrecht primary residential responsibility for the child. Neustel was granted reasonable parenting time and ordered to pay child support. At the time, Albrecht was living and working in Carrington, and Neustel was living and working in the Milnor area. Neustel married in April 2007 and lives with his wife and her two daughters from a previous relationship. Since Albrecht and Neustel separated in December 2004, Albrecht has had several boyfriends, one to whom she was married for approximately seven months. She has also moved several times to different homes in Carrington and the surrounding area.

[¶3] During summer 2009, Albrecht and the children moved from Carrington to Mandan. After Albrecht's move and a court-ordered increase in Neustel's child support obligation, Neustel filed a motion to change the primary residential responsibility for his daughter from Albrecht to himself. Following a hearing, the district court granted the motion. The court found a material change of circumstances had occurred and awarded primary residential responsibility to Neustel.

II.

[¶4] Albrecht argues the district court erred in changing primary residential responsibility to Neustel.

[¶5] 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 residential responsibility 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.

[¶6] In Lechler v. Lechler, 2010 ND 158, ¶ 9, 786 N.W.2d 733, this Court recently explained:

The party seeking to change primary residential responsibility has the burden of proving there has been a material change in circumstances and a change in primary residential responsibility is necessary to serve the child's best interests. Frueh v. Frueh, 2009 ND 155, ¶ 8, 771 N.W.2d 593. We have defined a "material change in circumstances" as "an important new fact that was not known at the time of the prior custody decree." Siewert v. Siewert, 2008 ND 221, ¶ 17, 758 N.W.2d 691. If a district court determines no material change in circumstances has occurred, it is unnecessary for the court to consider whether a change in primary residential responsibility is necessary to serve the children's best interests. See Machart v. Machart, 2009 ND 208, ¶ 11, 776 N.W.2d 795. A district court's decision whether to modify primary residential responsibility is a finding of fact which will not be reversed on appeal unless clearly erroneous. Dunn v. Dunn, 2009 ND 193, ¶ 6, ...


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