Tina R. Valeu, Plaintiff and Appellant
Ernest Strube, Defendant and Appellee
from the District Court of Burleigh County, South Central
Judicial District, the Honorable Sonna M. Anderson, Judge.
M. Stebbins, Bismarck, N.D., for plaintiff and appellant.
Mills Moore (argued) and Stacy M. Moldenhauer, Bismarck,
N.D., for defendant and appellee.
1] Tina Valeu appeals from a second amended judgment denying
her motion to modify primary residential responsibility.
Valeu argues the district court erred by failing to make an
original determination of primary residential responsibility
or, alternatively, by failing to find a material change of
circumstances exists. We affirm, concluding the district
court properly applied the law and its decision is not
2] Valeu and Ernest Strube were married in 2009 and have one
minor child together. The parties divorced in 2013. Before
the divorce trial, the parties presented a stipulated
parenting plan in which the parties agreed Strube would have
primary residential responsibility for the child but they
would have equal parenting time until the child started
kindergarten in fall 2016, at which time Valeu's
parenting time would be reduced to every other weekend during
the school year and extended parenting time in the summer.
The district court adopted the parties' stipulation and
incorporated it into the final judgment.
3] In January 2016, Valeu moved to modify the judgment,
requesting the court award her primary residential
responsibility for the child. She argued the court was
required to make an original determination about primary
residential responsibility because the parties agreed to a
parenting plan in which they would exercise joint residential
responsibility. She also argued there were numerous material
changes in the parties' circumstances, including that
Strube denied the child medical care, her health and
well-being increased while the child's condition
declined, and the child resided with her significantly more
days than he resided with Strube.
4] The district court found Valeu established a prima facie
case for modification of primary residential responsibility
and granted an evidentiary hearing. A parenting investigator
was appointed, and the investigator filed a report.
5] A three-day evidentiary hearing was held, and numerous
witnesses testified. Valeu argued that it is in the
child's best interests for her to have primary
residential responsibility and that she proved a material
change of circumstances, including that she is a victim of
domestic violence from Strube, he continues to be verbally
abusive to her, he berates her if she disagrees with him, and
he refuses to respect her concerns and her parenting time.
6] The district court denied Valeu's motion. The court
found Strube had been emotionally abusive in the past but his
behavior did not meet the statutory definition of domestic
violence. The court also found this was a "high conflict
divorce" and the parties do not communicate ideally, but
the parties' behavior did not rise to the level of a
material change. The court found Valeu failed to meet her
burden to prove there had been a material change of
circumstances. The court amended the terms of the parenting
plan to clarify its terms and address the conflict between
the parties. A second amended judgment was entered.
7] Valeu argues the district court erred by failing to make
an original determination about which parent should be
awarded primary residential responsibility. She contends the
court was not required to find there was a material change in
circumstances to grant her motion, because the parties
stipulated to the prior parenting plan and the court had
never made a decision based on the child's best
interests. She alternatively asserts the court erred by
denying her motion, because there was a material change in
circumstances and the best interest factors favored awarding
her primary residential responsibility.
8] The district court's ultimate decision whether to
modify primary residential responsibility is a finding of
fact, which will not be reversed on appeal unless it is
clearly erroneous. Haag v. Haag, 2016 ND 34, ¶
7, 875 N.W.2d 539. A finding of fact is clearly erroneous if
there is no evidence to support it, if it is induced by an
erroneous view of the law, or if we are convinced, on the
basis of the entire record, that a mistake has been made.
Id. "Under the clearly erroneous standard, we
do not reweigh the evidence nor reassess the credibility of
witnesses, and we will not retry a [residential
responsibility] case or substitute our judgment for a
district court's... ...