Melissa L. Horacek LUCAS, Plaintiff and Appellant
Richard LUCAS, Defendant and Appellee.
Melissa L. Horacek, self-represented, Goodrich, N.D., plaintiff and appellant.
Gregory I. Runge, Bismarck, N.D., for defendant and appellee.
[¶ 1] Melissa Horacek appeals from a judgment granting Richard Lucas's motion to change primary residential responsibility for their minor child from Horacek to Lucas. Because we conclude the district court failed to make sufficient findings of fact to explain its decision to change primary residential responsibility to Lucas, we reverse and remand for further findings.
[¶ 2] Horacek and Lucas were married in 2005 and divorced in a judgment entered in 2011. The divorce judgment granted primary residential responsibility of their minor child, K.J.L., to Horacek with parenting time awarded to Lucas.
[¶ 3] On May 26, 2012, on arriving at home after picking up K.J.L. for weekend parenting time, Lucas noticed bruising on K.J.L.'s legs and asked K.J.L. what had happened. According to Lucas, K.J.L. stated that her mother and half-brother had hit her. Lucas immediately called the Burleigh County Sheriff's Department, and Officer Ray Dingeman came to Lucas's home and inspected K.J.L.'s bruises. The court found the officer observed bruising just below the buttocks on the back of the leg that was consistent with marks from fingers, and there was a long thin bruise lower on the same side of the leg. The court found that when the officer asked K.J.L. what happened, she told him that her half-brother hit her with a stick and that her mother had spanked her with her hand. Officer Dingeman also photographed the marks on K.J.L.
[¶ 4] In July 2012, Horacek moved the district court for an order to show cause,
requesting Lucas be held in contempt for not returning their child to her. The court referred the matter to a judicial referee. In August 2012, Lucas responded to Horacek's motion and also moved the court to modify the judgment to change primary residential responsibility from Horacek to him.
[¶ 5] The order to show cause was subsequently dismissed, and in September 2012, the district court entered an order, holding Horacek had not filed a brief or affidavits in response to Lucas's motion and Lucas had established a prima facie case to proceed with an evidentiary hearing on his motion. Horacek responded to oppose Lucas's motion. After a November 2012 evidentiary hearing, the district court changed primary residential responsibility of the child to Lucas, and a judgment was subsequently entered.
[¶ 6] Horacek argues the district court erred in finding a prima facie case to proceed with an evidentiary hearing on Lucas's motion to change primary residential responsibility.
[¶ 7] Section 14-09-06.6, N.D.C.C., governs post-judgment primary residential responsibility modification, and when a party moves to modify residential responsibility within two years after an order establishing residential responsibility, the court applies a stricter or more rigorous modification standard. See N.D.C.C. § 14-09-06.6(5); In re N.C.M., 2013 ND 132, ¶ 9, 834 N.W.2d 270; Laib v. Laib, 2008 ND 129, ¶ 8, 751 N.W.2d 228. To obtain an evidentiary hearing on a motion for modification, the party seeking the modification must first establish a prima facie case under N.D.C.C. § 14-09-06.6(4). However, we have explained that " any issue regarding the evidentiary basis for a court's decision that a prima facie case has been established under N.D.C.C. § 14-09-06.6(4) is rendered moot once the evidentiary hearing is held." Kartes v. Kartes, 2013 ND 106, ¶ 18, 831 N.W.2d 731; see also In re N.C.M., at ¶ 10.
[¶ 8] Here, the district court held a November 2012 evidentiary hearing on Lucas's motion to change primary residential responsibility. Because the court held a full evidentiary hearing on Lucas's motion, the issue regarding whether the court erred in granting the hearing under N.D.C.C. § 14-09-06.6(4) is moot. We therefore do not address whether the court erred in concluding Lucas established a prima facie case.
[¶ 9] Horacek argues the district court erred in finding " exceptional circumstances" existed to change primary residential responsibility of their minor child, erred in finding Lucas's allegations of abuse constituted a material change in circumstances, and erred in modifying the original custody order.
[¶ 10] Because Lucas's motion to modify primary residential responsibility was made within two years of entry of the divorce judgment granting Horacek primary residential responsibility, the motion is governed by N.D.C.C. § 14-09-06.6(5):
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 is necessary to serve the best interest of the child and:
a. The persistent and willful denial or interference with parenting time;
b. The child's present environment may endanger the child's physical or
emotional health or impair the child's emotional development; or
c. The residential responsibility for the child has changed to the other parent for longer than six months.
See also N.D.C.C. § 14-09-06.6(3).
[¶ 11] A district court must award primary residential responsibility to the party who will best promote the child's best interests and welfare. See Rustad v. Rustad, 2013 ND 185, ¶ 6, 838 N.W.2d 421; In re N.C.M., 2013 ND 132, ¶ 13, 834 N.W.2d 270. In addressing the child's best interests, the court must consider all relevant factors under N.D.C.C. § 14-09-06.2(1)(a) through (m):
a. The love, affection, and other emotional ties existing between the parents and child and the ability of each parent to provide the child with nurture, love, affection, and guidance.
b. The ability of each parent to assure that the child receives adequate food, clothing, shelter, medical care, and a safe environment.
c. The child's developmental needs and the ability of each parent to meet those needs, both in the present and in the future.
d. The sufficiency and stability of each parent's home environment, the impact of extended family, the length of time the child has lived in each parent's home, and the desirability of ...