Valeu v. Strube

         Appeal from the District Court of Burleigh County, South Central Judicial District, the Honorable Sonna M. Anderson, Judge.

          Jackie M. Stebbins, Bismarck, N.D., for plaintiff and appellant.

          Sherry Mills Moore (argued) and Stacy M. Moldenhauer, Bismarck, N.D., for defendant and appellee.

          OPINION

          TUFTE, JUSTICE.

         [¶ 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 clearly erroneous.

         I

         [¶ 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.

         II

         [¶ 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... ...