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Capes v. Capes

Supreme Court of North Dakota

October 14, 2015

Jennifer L. Capes, n/k/a Jennifer L. Novak, Plaintiff and Appellee
Jason Capes, Defendant and Appellant

Appeal from the District Court of Grand Forks County, Northeast Central Judicial District, the Honorable Debbie Gordon Kleven, Judge.

Kari R. Winning, Grand Forks, N.D., for plaintiff and appellee.

Kristi P. Venhuizen, Grand Forks, N.D., for defendant and appellant.

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


Dale V. Sandstrom, Justice.

[¶1] Six months after the divorce judgment giving Jason Capes primary residential

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responsibility, Jennifer Capes, now known as Jennifer Novak, filed for substantial changes in parenting time and decision-making authority, which were granted by a different judge. Capes appeals from the amended divorce judgment. Because we conclude the district court's finding that a material change in circumstances had occurred since entry of the divorce judgment was clearly erroneous, we reverse the amended judgment and remand to the court for entry of an amended judgment incorporating the parties' July 2014 stipulation into the original May 2013 judgment.


[¶2] Capes and Novak were married in 2003 and have two children, born in 2008 and 2010. In May 2013, the parties were divorced in a judgment that awarded Capes primary residential responsibility and adopted his proposed parenting plan. The district court appears to have awarded primary residential responsibility to Capes primarily because it found he would provide greater stability and because of the criminal and related history of the man Novak was living with, who is now her husband.

[¶3] Only six months later, in November 2013, Novak moved the district court to modify the parenting plan on the basis of an alleged material change in circumstances because Capes changed the daycare provider without consulting with her, he would not " coparent," he would not always agree to letting her have the children more often than provided in the judgment, and they bickered primarily through texting. Although the divorce judgment provided any dispute would first be submitted to mediation, Novak filed her motion without doing so. She asked the court to grant her a right of first refusal to parent the children when Capes is unable, to require the children to attend a licensed daycare facility, to modify the holiday parenting time schedule, to allow parenting time with both children on a child's birthday, and to appoint a parenting coordinator. Capes opposed the motion, arguing a change in material circumstances had not occurred and modification was not in the children's best interests.

[¶4] The trial judge had retired, and a different judge was assigned to hear the motion. In May 2014, the district court held an evidentiary hearing on Novak's motion. In July 2014, Capes and Novak entered into a partial stipulation to amend the judgment, providing the parties a right of first refusal when one parent intends to place the children in the care of a third party overnight, providing Novak additional parenting time when Capes is out of town coaching sporting events, permitting Novak to have lunch with the children while at daycare, revising the holiday schedule, and clarifying parenting time on the children's birthdays. The court subsequently granted Novak's motion to amend, and further amended the judgment to provide Novak extended weekends, overnight midweek visits, extended summer parenting time, and joint decision-making authority, and required the parties to use a parenting coordinator.

[¶5] The district court had jurisdiction under N.D. Const. art. VI, § 8, and N.D.C.C. § 27-05-06. The appeal is timely under N.D.R.App.P. 4(a). This Court has jurisdiction under N.D. Const. art. VI, § § 2 and 6, and N.D.C.C. § 28-27-01.


[¶6] Under N.D.C.C. § 14-05-22, the district court has continuing jurisdiction to modify parenting time. See Hoverson v. Hoverson, 2015 ND 38, ¶ 12, 859 N.W.2d 390; Prchal v. Prchal, 2011 ND 62, ¶ 10, 795 N.W.2d 693. " To modify

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[parenting time], the moving party must demonstrate a material change in circumstances has occurred since entry of the previous [parenting time] order and that the modification is in the best interests of the child." Prchal, at ¶ 11 (quoting Dufner v. Trottier, 2010 ND 31, ¶ 6, 778 N.W.2d 586). The district court's decision to modify parenting time is a finding of fact, which this Court will not reverse on appeal unless clearly erroneous. Hoverson, at ¶ 12; Prchal, at ¶ 11. A finding of fact is clearly erroneous if it is induced by an erroneous view of the law, if no evidence exists to support it, or if, upon review of the entire record, this Court is left with a definite and firm conviction a mistake has been made. Bertsch v. Bertsch, 2006 ND 31, ¶ 5, 710 N.W.2d 113.

[¶7] This Court has discussed facts showing a material change in circumstances and the children's best interests sufficient to modify parenting time:

" To modify parenting time, 'a material change of circumstances occurs when important new facts arise that were unknown at the time of the initial [parenting time] order.' Dufner, 2010 ND 31, ¶ 7, 778 N.W.2d 586 (citing Helfenstein [v. Schutt], 2007 ND 106, ¶ 18, 735 N.W.2d 410). See also Young v. Young,2008 ND 55, ¶ ¶ 14-1 5, 746 N.W.2d 153 (mother's scheduling problems, together with the child's recent behavior, constituted sufficient material change in circumstances) (citing Ibach v. Zacher,2006 ND 244, ¶ 10, 724 N.W.2d 165 (mother's out-of-town move and father's illness a sufficient material change); Simburger v. Simburger,2005 ND 139, ¶ 18, 701 N.W.2d 880 (mother's agreement for unsupervised visitation with father followed by mother's unwillingness to allow unsupervised visitation constituted a material ...

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