Searching over 5,500,000 cases.


searching
Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.

Topolski v. Topolski

Supreme Court of North Dakota

April 3, 2014

Thomas Francis Topolski, Plaintiff and Appellee
v.
Jean Evonne Topolski, Defendant and Appellant

Page 876

[Copyrighted Material Omitted]

Page 877

Appeal from the District Court of Ward County, Northwest Judicial District, the Honorable Richard L. Hagar, Judge.

Theresa L. Kellington, Bismarck, ND, for plaintiff and appellee.

Thomas M. Jackson, Bismarck, ND, for defendant and appellant.

Carol Ronning Kapsner, Lisa Fair McEvers, Daniel J. Crothers, Dale V. Sandstrom, Gerald W. VandeWalle, C.J.

OPINION

Page 878

Kapsner, Justice.

[¶1] Jean Evonne Topolski appeals from an amended judgment granting Thomas Francis Topolski primary residential responsibility over the couple's minor child. We affirm the district court judgment.

I

[¶2] Jean and Thomas Topolski entered into a stipulated divorce agreement. On March 18, 2010, judgment was entered based on their stipulation. The divorce judgment gave primary residential responsibility of the couple's minor child, K.T., born in 2008, to Jean Topolski and gave Thomas Topolski parenting time. On December 7, 2012, Thomas Topolski moved to amend the judgment requesting that primary residential responsibility for the child be changed from Jean Topolski to Thomas Topolski, that a parenting schedule be established for Jean Topolski, that a child support obligation be established for Jean Topolski, and that Thomas Topolski's child support obligation be terminated.

[¶3] The district court found that Thomas Topolski had established a prima facie case, and an evidentiary hearing was held. On July 8, 2013, the district court filed its findings of fact, conclusions of law, and order for amended judgment. On July 30, 2013, the district court filed an amended judgment transferring primary residential responsibility over the child to Thomas Topolski, setting a parenting time schedule for Jean Topolski, terminating Thomas Topolski's child support obligation, and ordering the parties to submit applicable child support calculations to determine Jean Topolski's child support obligation. Jean Topolski filed a request for reconsideration, which was denied by the district court.

[¶4] On August 23, 2013, a second amended judgment was filed, which adopted Thomas Topolski's proposed child support calculations and established the child support obligation for Jean Topolski. Jean Topolski appeals only the July 8, 2013 findings of fact, conclusions of law, and order for amended judgment and July 30, 2013 amended judgment modifying primary residential responsibility.

II

[¶5] Under N.D.C.C. § 14-09-06.6(6), when a party seeks modification of a primary residential responsibility order more than two years after the original order was entered, a district court may modify the 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

Page 879

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 interests of the child.

When evaluating the best interests of the child, the court must consider, when applicable, the factors listed at N.D.C.C. § 14-09-06.2(1).

[¶6] On appeal, Jean Topolski argues the district court erred in failing to articulate the best interest factors in its decision. " 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." Glass v. Glass, 2011 ND 145, ¶ 11, 800 N.W.2d 691 (citation omitted). However, Jean Topolski is not challenging the district court's findings; she is arguing that the district court failed to meet the standard, established by this Court in prior cases, for articulating those findings in its findings of fact, conclusions of law, and order for amended judgment. She also argues that the district court misapplied the law regarding consideration of the parties' pre-divorce conduct. Jean Topolski does not challenge the district court's finding that a material change in circumstances occurred.

III

[¶7] Jean Topolski argues the district court erred in failing to articulate the best interest factors in its decision. A district court has substantial discretion in making a determination concerning primary residential responsibility, but the court must consider all of the applicable best interest factors in reaching that determination. Wolt v. Wolt, 2010 ND 26, ¶ 9, 778 N.W.2d 786. This Court has previously concluded a district court need not make separate findings for each best interest factor or consider irrelevant factors, and a court's findings regarding one best interest factor may be applicable to other factors. See Interest of S.R.L., 2013 ND 32, ¶ 7, 827 N.W.2d 324. However, " the court's findings must contain sufficient specificity to show the factual basis for the [primary residential responsibility] decision." Wolt, 2010 ND 26, ¶ 9, 778 N.W.2d 786 (citation omitted). " A court's findings of fact are sufficient if they afford a clear understanding of the court's decision and assist the appellate court in conducting its review." Dieterle v. Dieterle, 2013 ND 71, ¶ 7, 830 N.W.2d 571 (citation omitted).

[¶8] In this case, the district court's findings of fact, conclusions of law, and order for amended judgment included a five and a half page findings of fact section analyzing the testimony and exhibits offered at the evidentiary hearing. The district court concluded, " In reviewing all the factors set out in § 14-09-06.2 of the North Dakota Century Code, as those factors relate to the facts in this case, the best interest of [the child] mandates a change in residential responsibility from Defendant, Jean [Topolski], to Plaintiff, Thomas Topolski." While the district court did not specifically reference each of the best interest factors as they related to its factual findings, ...


Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.