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Sweeney v. Kirby

Supreme Court of North Dakota

June 11, 2015

Brian L. Sweeney, Plaintiff
v.
Dawn M. Kirby, Defendant and Appellant

Page 465

Appeal from the District Court of Cass County, East Central Judicial District, the Honorable Steven L. Marquart, Judge.

Brian L. Sweeney, plaintiff; no appearance.

Vanessa R. Berge, Fargo, N.D., for defendant and appellant.

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

OPINION

Page 466

Carol Ronning Kapsner, Justice.

[¶1] Dawn Kirby appeals from a district court order denying her motion to modify primary residential responsibility of the parties' minor child from Brian Sweeney to her. We affirm, concluding

Page 467

the court's denial of Kirby's motion is not clearly erroneous.

I

[¶2] Kirby and Sweeney have one minor child together who was born in 2004. Kirby raised the child until 2011, when Sweeney was granted primary residential responsibility, and Kirby was granted supervised parenting time. In 2012, Kirby moved to modify primary residential responsibility. The district court's order denying the motion without an evidentiary hearing was reversed in Sweeney v. Kirby, 2013 ND 9, 826 N.W.2d 330. After an evidentiary hearing in April 2013, the district court denied Kirby's motion, and the order denying the motion was affirmed in Sweeney v. Kirby, 2013 ND 179, 841 N.W.2d 2.

[¶3] In May 2014, Kirby again moved to modify primary residential responsibility, alleging Sweeney's repeated incarcerations created an unsafe environment for the child, and Sweeney's continued interference with her supervised parenting time was not in the best interests of the child. After an evidentiary hearing in July 2014, the district court denied Kirby's motion, concluding she had not proven a material change of circumstances sufficient to modify primary residential responsibility of the child. The court also concluded Kirby failed to prove modification was necessary to serve the best interests of the child.

[¶4] Sweeney was incarcerated at the time of both evidentiary hearings, but appeared by telephone. Before the April 2013 hearing, Sweeney was arrested and incarcerated on felony drug and weapons charges. In October 2013, Sweeney was again arrested and incarcerated on felony drug and weapons charges. Those charges were dismissed in state court, and Sweeney was indicted and convicted in federal court for being a felon in possession of a firearm. He was awaiting sentencing at the time of the July 2014 hearing. Sweeney's former wife Naomi Sweeney, who lives with Sweeney and the child, took care of the child while Sweeney was incarcerated.

[¶5] Kirby also has a criminal history. She has a conviction for felony theft and a conviction for having sexual relations with a 16-year-old minor. At the time of the July 2014 hearing, she had completed her probation for the sexual offense, and her sexual offender registration level was " low" risk.

II

[¶6] Kirby argues the district court erred in denying her motion to modify primary residential responsibility of the parties' minor child. She argues Sweeney's criminal behavior and incarceration create a dangerous environment for the child, she has been denied parenting time and contact with the child, and the court erred in finding the best interest factors weighed in favor of Sweeney retaining primary residential responsibility of the child. She also argues the court applied the incorrect legal standard in its analysis of her motion to modify primary residential responsibility.

[¶7] We review a district court's decision on a motion to modify primary residential responsibility as a finding of fact subject to the clearly erroneous standard of review. Krueger v. Tran, 2012 ND 227, ¶ 11, 822 N.W.2d 44. " A finding is clearly erroneous if it is induced by an erroneous view of the law, there is no evidence to support it, or we are convinced, based on the entire record, that a mistake has been made." Id. We do not reweigh the evidence or reassess the credibility of witnesses, and we will not substitute our judgment for a district court's decision on a motion to modify

Page 468

primary residential responsibility merely because we might have reached a different result. Heinle v. Heinle,2010 ND ...


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