Gregory C. Larson, Plaintiff, Appellant and Cross-Appellee
Ana Cristina Dos Santos Conceicao Larson n/k/a, Ana Cristina Dos Santos Conceicao, Defendant, Appellee and Cross-Appellant and State of North Dakota, Statutory Real Party In Interest
from the District Court of Morton County, South Central
Judicial District, the Honorable Douglas L. Mattson, Judge.
A. Goetz, Bismarck, N.D., for plaintiff, appellant and
D. Hager, Bismarck, N.D., for defendant, appellee and
W. VandeWalle, C.J., Dale V. Sandstrom, Daniel J. Crothers,
Lisa Fair McEvers, Carol Ronning Kapsner. Opinion of the
Court by VandeWalle, Chief Justice.
W. VandeWalle, Chief Justice.
[¶1] Gregory C. Larson appealed from a
district court order denying his motion to modify primary
residential responsibility of their minor children from Ana
Cristina Conceicao to him. Conceicao cross-appeals from an
order denying her motions to relocate and for attorney fees.
We affirm, concluding the district court's findings of
fact on each party's motion are not clearly erroneous and
the court did not
abuse its discretion in denying Conceicao attorney fees.
[¶2] The parties divorced in 2006, have two
minor children together, and currently reside in Mandan.
Conceicao was awarded primary residential responsibility with
liberal parenting time granted to Larson. In 2014, Larson
moved to modify primary residential responsibility, alleging
Conceicao was willfully interfering with his parenting time
and relationship with the children. The district court found
Larson established a prima facie case for modification and
granted an evidentiary hearing on his motion.
[¶3] A few weeks before the hearing on
Larson's motion, Conceicao filed a motion to relocate to
Florida with the children. As a native of Brazil, Conceicao
claimed a move to Florida would be in her and the
children's best interests. Conceicao claimed Florida is
more racially diverse and offers easier travel to Brazil.
Conceicao stated in the motion and in her supporting
affidavit that her motion was contingent on the denial of
Larson's motion to modify primary residential
responsibility. She stated she would not move if the district
court awarded Larson primary residential responsibility of
[¶4] At the hearing on Larson's motion,
the district court asked the parties whether Conceicao's
motion to relocate would also be heard. Conceicao's
attorney stated they preferred to hear both motions at the
same time, but reiterated her motion was dependent on the
court denying Larson's motion and retaining primary
residential responsibility with Conceicao. Larson's
attorney stated they wished to proceed at a later date
because they were not completely prepared to argue
Conceicao's relocation motion. The court decided to hear
Conceicao's motion to relocate at a later date if it
denied Larson's motion to modify primary residential
[¶5] The district court denied Larson's
motion to modify primary residential responsibility. The
court found Larson established a material change in
circumstances. The court found Conceicao made unfounded
reports to the police, interfered with Larson's parenting
time, and in other instances displayed poor judgment and
acted divisively in front of the children. Although the court
found a material change in circumstances had occurred, it
found changing primary residential responsibility to Larson
would not be in the children's best interests. The court
also ordered Larson to pay Conceicao $3,000 in attorney fees.
[¶6] After the subsequent hearing on
Conceicao's motion to relocate, she moved for attorney
fees, claiming she had a need for attorney fees and Larson
had the ability to pay. The district court denied
Conceicao's motions to relocate and for attorney fees.
The court found Conceicao failed to establish a move to
Florida would be in the children's best interests.
[¶7] Larson argues the district court erred
in denying his motion to modify primary residential
[¶8] A district court's decision on a
motion to modify primary residential responsibility is a
finding of fact, subject to the clearly erroneous standard of
review. Seibold v. Leverington, 2013 ND 173, ¶ 12,
837 N.W.2d 342. " 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. We view the evidence in the
light most favorable to the findings and we will not
reweigh the evidence. Hentz v. Hentz, 2001 ND 69, ¶
12, 624 N.W.2d 694.
[¶9] A motion for modification of primary
residential responsibility filed more than two years after an
earlier order establishing residential responsibility is
governed under N.D.C.C. § 14-09-06.6(6), which provides:
The court may modify the primary residential responsibility
after the two-year period following the date of entry of an
order establishing primary residential responsibility if the
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
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 interest
of the child.
[¶10] Under N.D.C.C. § 14-09-06.6(6), a
district court may modify primary residential responsibility
if it finds: (1) a material change in circumstances has
occurred; and (2) a modification is necessary to serve the
child's best interests. Seibold, 2013 ND 173, ¶¶
10-1 1, 837 N.W.2d 342. To find a modification is in the
child's best interests, the court must consider the best
interest factors under N.D.C.C. § 14-09-06.2(1)(a)-(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
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
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 maintaining continuity in the child's
home and community.
e. The willingness and ability of each parent to facilitate
and encourage a close and continuing relationship between the