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Frey v. Frey

Supreme Court of North Dakota

December 18, 2014

Elizabeth A. Frey, n/k/a Wonser, Plaintiff and Appellee
v.
Gardell Q. Frey, Defendant and Appellant

Page 782

[Copyrighted Material Omitted]

Page 783

Appeal from the District Court of Morton County, South Central Judicial District, the Honorable Bruce A. Romanick, Judge.

Kent M. Morrow, Bismarck, ND, for plaintiff and appellee.

Daniel H. Oster, Bismarck, ND, for defendant and appellant.

Lisa Fair McEvers, Daniel J. Crothers, Carol Ronning Kapsner. Dale Sandstrom, Gerald W. VandeWalle, C.J., concurred in the result. Opinion of the Court by McEvers, Justice.

OPINION

Page 784

McEvers, Justice.

[¶1] Gardell Quito Frey appeals a district court amended judgment entered after the court denied his motion to modify primary residential responsibility. We affirm, concluding the district court did not clearly err in determining modification was not necessary to serve the best interests of the children and did not abuse its discretion in denying back interim child support. I

[¶2] Gardell Quito Frey married Elizabeth Anna Wonser, previously known as Frey, in 2003 and the parties divorced in 2008. Based on a settlement agreement between the parties, Wonser was awarded primary residential responsibility of the parties' two children, A.H.F., born in 2003, and A.E.F., born in 2007. After the divorce, Wonser and the children continued to live in Mott, North Dakota. In January 2011, Wonser moved with A.E.F. to Alvarado, Minnesota. A.H.F. stayed in Mott and moved in with Frey in order to finish the school year. In July 2011, Frey moved to modify primary residential responsibility. An interim hearing was held in October 2011. The court issued an interim order granting temporary primary residential responsibility to Frey and parenting time to Wonser. On August 24, 2012, the district court held an evidentiary hearing on Frey's motion to modify primary residential responsibility. The district court denied Frey's motion, concluding evidence did not support finding a material change in circumstances to allow modification of primary residential responsibility.

[¶3] Frey appealed to this Court, arguing the district court erred by finding no material change in circumstances occurred. This Court reversed and remanded to the district court, concluding a material change in circumstances occurred and the district court's findings did not provide sufficient specificity to adequately explain its determination that modification was not in the best interests of the children. Frey v. Frey, 2013 ND 100, ¶ ¶ 11, 13, 831 N.W.2d 753 Additionally, this Court determined the district court did not adequately explain its reasoning for the denial of back interim child support to Frey. Id. at ¶ 17.

[¶4] On remand, a hearing was held on January 10, 2014. Subsequently, the district court found modification was not necessary to serve the children's best interests because the best interests factors favored primary residential responsibility remaining with Wonser. Additionally, the district court affirmed its denial of child support to Frey during the interim period, finding that requiring Wonser to pay back interim child support would negatively impact her ability to care for the children. The district also found it was the actions of Frey that extended the period of the interim order. Frey appealed.

[¶5] On appeal, Frey argues the district court erred in its application of the best interests factors and by not ordering Wonser to pay back interim child support during the interim period.

II

[¶6] A district court's decision whether to modify primary residential responsibility is a finding of fact, which will not be reversed on appeal unless it is

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clearly erroneous. Hageman v. Hageman, 2013 ND 29, ¶ 8, 827 N.W.2d 23. " A finding of fact is clearly erroneous if there is no evidence to support it, if the finding is induced by an erroneous view of the law, or if the reviewing court is left with a definite and firm conviction a mistake has been made." Id. " In applying the clearly erroneous standard, we will not reweigh evidence, reassess witness credibility, retry a custody case, or substitute our judgment for the trial court's decision merely because this Court may have reached a different result." Hammeren v. Hammeren, 2012 ND 225, ¶ 8, 823 N.W.2d 482.

[¶7] A district court may modify primary residential responsibility if the court finds a material change has occurred and modification is necessary to serve the best interests of the child. See N.D.C.C. § 14-09-06.6(6). In the first appeal, we determined a material change occurred because Wonser moved out of state approximately four-hundred miles away and, by agreement with Frey, left A.H.F. in Frey's custody to complete the school year. See Frey, 2013 ND 100, ¶ 9, 831 N.W.2d 753 (stating " we conclude the district court's finding that no material change occurred was a misapplication of law and clearly erroneous" ). In determining whether the second requirement for modification is satisfied, that modification is necessary to serve the best interests of the child, a court considers the best interests factors under N.D.C.C. § ...


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