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Curtiss v. Curtiss

Supreme Court of North Dakota

March 20, 2017

Rebecca Lynn Curtiss, Plaintiff
v.
Spencer Kerry Curtiss, Defendant and Appellant

         Appeal from the District Court of Burleigh County, South Central Judicial District, the Honorable Gail Hagerty, Judge.

         AFFIRMED IN PART, REVERSED IN PART, AND REMANDED.

          Spencer K. Curtiss (on brief), self-represented, defendant and appellant.

          Rebecca L. Curtiss, plaintiff, no appearance.

          OPINION

          McEvers, Justice.

         [¶ 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.

         I

         [¶ 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.

         II

         [¶ 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 ...


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