Appeal from the District Court of Morton County, South Central Judicial District, the Honorable Gail H. Hagerty, Judge.
The opinion of the court was delivered by: VandeWalle, Chief Justice.
N.D. Supreme CourtWolt v. Wolt, 2011 ND 170
This opinion is subject to petition for rehearing.
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AFFIRMED IN PART, REVERSED IN PART, AND REMANDED.
Opinion of the Court by VandeWalle, Chief Justice.
[¶1] Steve Wolt appealed from an order denying his motion to amend a divorce judgment. We conclude the district court did not err in denying an evidentiary hearing on his motion to award him primary residential responsibility of his children and did not err in awarding Kathy Wolt attorney's fees. We also conclude, however, the court erred in denying Steve Wolt a hearing on his motion to amend his parenting time. We affirm in part, reverse in part, and remand for further proceedings.
I [¶2] Kathy Wolt and Steve Wolt were married in 1994 and have three minor children. The parties' final divorce judgment was entered in March 2009, awarding Kathy Wolt primary residential responsibility of the children and granting Steve Wolt supervised parenting time. This Court affirmed the divorce judgment in Wolt v. Wolt, 2010 ND 26, 778 N.W.2d 786 ("Wolt I"), and affirmed a domestic violence protection order against Steve Wolt in Wolt v. Wolt, 2010 ND 33, 778 N.W.2d 802 ("Wolt II"). After the parties' March 2009 divorce judgment, Steve Wolt exercised two visits at the Family Safety Center before the Center "terminated" the supervised parenting-time services based on his failure to follow the Center's guidelines.
[¶3] In April 2009, the two oldest children were removed from Kathy Wolt's home, placed with social services, and subsequently adjudicated as unruly in juvenile court. The youngest child remains in Kathy Wolt's custody. In juvenile court proceedings, Kathy Wolt admitted the children were deprived. After a July 2009 dispositional hearing, the two oldest children were placed with social services until April 2010. After a further hearing in January 2010, the juvenile court found the two oldest children were deprived, continuing social services custody until January 2011. The juvenile court found the two older children were deprived because of Steve Wolt's "intentional and systematic efforts to alienate the children from Kathy and to undermine Kathy's custody, authority and control of the children." The court further found "these actions motivated [the two older children] to engage in unruly conduct, which in turn, caused them to be adjudicated as unruly children and placed in foster care." The juvenile court further found that "[w]ith regard to Kathy, the children are deprived because the alienation and disrespect that Steve has instilled in [the oldest children] towards Kathy, have caused such a serious disruption in their relations that Kathy can no longer provide proper parental care and control for [them], even though she obviously wishes to do so."
[¶4] In May 2010, three months after this Court's decisions in Wolt I and Wolt II, and within two years after the district court made its initial primary residential responsibility decision, Steve Wolt moved to amend the divorce judgment to change primary residential responsibility of the children and requested an evidentiary hearing. Steve Wolt alternatively sought to amend his parenting time with the children and requested a hearing.
[¶5] The district court denied Steve Wolt's motion to modify the judgment and awarded Kathy Wolt $1,000 in attorney's fees, concluding the motion was frivolous. Steve Wolt moved the court for relief from its order under N.D.R.Civ.P. 60, based in part on "new evidence" in the form of a psychological consultation report. The court denied Steve Wolt's request for relief.
II [¶6] Steve Wolt argues the district court erred in denying him an evidentiary hearing on his motion to amend the judgment to change primary residential responsibility. He argues he was entitled to an evidentiary hearing because he established a prima facie case under N.D.C.C. § 14-09-06.6(5)(a) and (b).
[¶7] Section 14-09-06.6(5), N.D.C.C., limits the district court's authority to modify an award of primary residential responsibility within two years of the original decision, and states:
The court may not modify the primary residential responsibility within the two-year period following the date of entry of an order establishing primary residential responsibility unless the court finds the modification ...