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Larson v. Larson

Supreme Court of North Dakota

April 12, 2016

Gregory C. Larson, Plaintiff, Appellant and Cross-Appellee
v.
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

Page 55

          Appeal from the District Court of Morton County, South Central Judicial District, the Honorable Douglas L. Mattson, Judge.

         Carey A. Goetz, Bismarck, N.D., for plaintiff, appellant and cross-appellee.

         Justin D. Hager, Bismarck, N.D., for defendant, appellee and cross-appellant.

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

          OPINION

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         Gerald 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

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abuse its discretion in denying Conceicao attorney fees.

         I

          [¶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 the children.

          [¶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 responsibility.

          [¶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.

         II

          [¶7] Larson argues the district court erred in denying his motion to modify primary residential responsibility.

          [¶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

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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 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 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 guidance.
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 the future.
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 ...

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