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Purdy v. Purdy

Supreme Court of North Dakota

March 13, 2019

Jessica Purdy, Plaintiff and Appellee
v.
Daren Purdy, Defendant and Appellant and State of North Dakota Statutory Real Party In Interest

          Appeal from the District Court of Cass County, East Cemtra; Judicial District, the Honorable Steven E. McCullough, Judge.

          Jason W. McLean, Fargo, ND, for plaintiff and appellee.

          Daren Purdy, self-represented, Fargo, ND, defendant and appellant.

          OPINION

          CROTHERS, JUSTICE.

         [¶1] Daren Purdy appeals from an amended judgment after the district court denied his motion to modify primary residential responsibility for his two minor children and granted his motion to modify parenting time. He argues the district court erred in awarding Jessica Purdy primary residential responsibility of the children. We affirm the amended judgment, concluding the district court did not clearly err in denying his motion to modify primary residential responsibility.

         I

         [¶2] Daren and Jessica Purdy were divorced in a May 2014 default judgment awarding Jessica Purdy primary residential responsibility of the parties' two minor children, granting Daren Purdy parenting time, and ordering him to pay Jessica Purdy $818 per month in child support. Daren Purdy was awarded parenting time on alternating weekends from Friday at 4:00 p.m. to Sunday at 8:00 p.m., on Wednesday from 4:00 p.m. to 8:00 p.m., on specified holidays alternating every other year and for one week of uninterrupted parenting time during June, July and August.

         [¶3] In June 2017 Daren Purdy moved to modify primary residential responsibility and parenting time for the parties' children. His motion sought an order granting him primary, or at least equal residential responsibility. He alternatively sought increased parenting time. The district court ruled Daren Purdy established a prima facie case for modification and ordered an evidentiary hearing. See N.D.C.C. § 14-09-06.6(4).

         [¶4] After an evidentiary hearing, the district court denied Daren Purdy's motion to modify primary residential responsibility, modified the parties' parenting time and ordered him to pay Jessica Purdy $932 per month in child support. In denying the motion to modify primary residential responsibility, the court analyzed the best interest factors and concluded most favored neither party, but factors (b), (d), (e) and (h) favored Jessica Purdy. The court modified Daren Purdy's parenting time to include alternating weekends from Friday at 4:00 p.m. to Sunday at 4:00 p.m., one night a week from 4:00 p.m. to 8:00 a.m. the next morning or when school starts, alternating weeks during June, July and August, and specified holidays alternating every other year.

         II

         [¶5] Daren Purdy argues the district court erred in awarding Jessica Purdy primary residential responsibility of the children. He contends the court's decision is not in the best interests of the children and he should have been granted at least equal residential responsibility for the children. He argues the court did not address his claim that Jessica Purdy was in possession of a controlled substance near the children, the court erred in finding Jessica Purdy's statements about his parenting time were true and accurate, and the court erred in finding a "boiler plate" parenting schedule was in the children's best interests. He argues the best interest factors should be reevaluated with consideration given to his evidence that he is an involved parent and there is no plausible reason why equal residential responsibility would cause harm to the children.[1]

         [¶6] Jessica Purdy responds that the district court's findings on the best interests of the children are not clearly erroneous. She argues that she adequately explained the presence of a prescription pill near the children and that Daren Purdy essentially seeks to have this Court reweigh evidence and reevaluate the district court's findings on the best interests of the children.

         [¶7] A party moving to modify primary residential responsibility has the burden of proof. N.D.C.C. § 14-09-06.6(8). A motion for modification of primary residential responsibility filed more than two years after an earlier order establishing residential responsibility is governed by 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 interests of the child."

         [¶8] 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 v. Leverington, 2013 ND 173, ¶¶ 10-11, 837 N.W.2d 342. To find a modification is in the child's best ...


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