from the District Court of Burleigh County, South Central
Judicial District, the Honorable Gail Hagerty, Judge.
IN PART, REVERSED IN PART, AND REMANDED.
Spencer K. Curtiss (on brief), self-represented, defendant
Rebecca L. Curtiss, plaintiff, no appearance.
1] Spencer Curtiss appeals from the district court Third
Amended Judgment modifying his parenting time and its order
denying his motion to reconsider. We remanded to the district
court for further findings and retained jurisdiction under
N.D.R.App.P. 35(a)(3). We conclude on remand the district
court made adequate findings to support its decision to
suspend visitation of D.C., but that the findings suspending
P.C.'s visits to the penitentiary are inadequate and are
not supported by the record. The district court's
judgment is affirmed in part, reversed in part, and remanded
for further proceedings.
2] Our prior decision in Curtiss v. Curtiss, 2016 ND
197, 886 N.W.2d 565, sets forth the relevant facts of this
case, which we repeat here only insofar as necessary to
assist in resolving the remaining issues.
3] Spencer Curtiss is incarcerated at the North Dakota State
Penitentiary. Rebecca Curtiss has primary residential
responsibility and, based on the stipulation between the
parties, Spencer Curtiss was to have parenting time every
other weekend at the state penitentiary supervised by Rebecca
Curtiss. In July 2015, Spencer Curtiss moved the district
court to enforce his parenting time, and Rebecca Curtiss
moved to suspend Spencer Curtiss's parenting time while
he is incarcerated. Rebecca Curtiss argued the visits to the
state penitentiary are harmful to the children.
4] The district court held a hearing on December 4, 2015, at
which Rebecca Curtiss and the children's therapist, Steve
Huebschwerlen, testified. The Third Amended Judgment entered
by the district court did not require the children to visit
Spencer Curtiss during his incarceration, unless they wanted
to visit and, in such instances, the parenting time must be
supervised by a counselor or therapist. Spencer Curtiss
appealed. While retaining jurisdiction under N.D.R.App.P.
35(a)(3), we remanded to the district court to make findings
of fact on whether there was a material change in
circumstances, whether suspended visitation is necessary
because visitation is likely to endanger the children, and
whether modification was in the best interests of the
children. Curtiss, 2016 ND 197, 886 N.W.2d 565. The
district court issued further findings of fact on October 27,
2016. This Court allowed the parties an opportunity for
further briefing following remand.
5] As we stated in Curtiss, 2016 ND 197, ¶ 12,
886 N.W.2d 565,
"Modification of parenting time proceedings are governed
by a standard established through case law."
Bredeson [v. Mackey], 2014 ND 25, ¶ 6, 842
N.W.2d 860 (citing Dufner v. Trottier, 2010 ND 31,
¶ 13, 778 N.W.2d 586). "'To modify 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 [v.
Prchal], [2011 ND 62');">2011 ND 62, ] ¶ 11, [795 N.W.2d 693]
(quoting Dufner, at ¶ 6; see also
Simburger [v. Simburger], [2005 ND 139');">2005 ND 139, ] ¶ 13 [, ] [701
N.W.2d 880]). A material change in circumstances is important
new facts that have occurred since the entry of the previous
parenting time order. Prchal, at ¶¶ 11-12.
In Hendrickson v. Hendrickson, we recognized that
parenting time between a parent without primary residential
responsibility is presumed to be in the child's best
interests, and "a court should only withhold visitation
when it is likely to endanger the child's physical or
emotional health." 2000 ND 1, ¶ 21, 603 N.W.2d 896
(quotation marks omitted); see also Paulson v.
Paulson, 2005 ND 72, ¶¶ 19-22, 694 N.W.2d 681
(concluding the district court impermissibly delegated
authority to decide visitation to a third party when no
finding was made that unrestricted visitation is likely to
endanger the child's physical or emotional health). We
have further recognized that denying a parent without primary
residential responsibility parenting time with a child is
"'an onerous restriction, ' such that
'physical or emotional harm resulting from the visitation
must be demonstrated in detail' before it is
imposed." Hendrickson, 2000 ND 1, ¶ 21,
603 N.W.2d 896 (citing Johnson v. Schlotman, 502
N.W.2d 831, 835 (N.D. 1993)). Finally, when awarding or
modifying parenting time the district court "may not
rely solely on the child's wishes in visitation
enforcement and modification actions[.]" Votava v.
Votava, 2015 ND 171, ¶ 15, 865 N.W.2d 821.
6] It is not the wishes or desires of the parents, but rather
the best interests of the child that are paramount when
considering modification of parenting time. Seibold v.
Leverington, 2013 ND 173, ¶ 19, 837 N.W.2d 342.
Further, under N.D.C.C. § 14-05-22(2), the district
court must "grant such rights of parenting time as will
enable the child to maintain a parent-child relationship that
will be beneficial to the child, unless the court finds,
after a hearing, that such rights of parenting time are
likely to endanger the child's physical or emotional
health." A district court's decision regarding
parenting time is a finding of fact subject to the clearly
erroneous standard of review. Bredeson, 2014 ND 25,
¶ 5, 842 N.W.2d 860. "A finding of fact is clearly
erroneous if there is no evidence ...