Capes v. Capes, 2015 ND 254

Background

Jennifer Novak (formerly Capes) and Jason Capes divorced in May 2013; the district court awarded Jason primary residential responsibility and adopted his parenting plan.
Six months later Novak moved to modify parenting time and decision-making, alleging material changes: Jason changed the daycare without consulting her, refused to coparent or be flexible with extra time, and the parties engaged in frequent electronic bickering.
Novak filed without first mediating as required by the divorce judgment; she sought right of first refusal, licensed daycare requirement, holiday schedule changes, birthday parenting time, and a parenting coordinator.
After an evidentiary hearing, the assigned judge (different from the divorce judge) accepted a July 2014 partial stipulation between the parties and issued an amended judgment granting Novak extended weekends, overnight midweek visits, extended summer time, joint decision-making, a parenting coordinator, and other changes.
Jason appealed, arguing the district court’s finding of a material change in circumstances was clearly erroneous and the court failed to analyze best-interest factors under N.D.C.C. §14-09-06.2.
The Supreme Court majority reversed the amended judgment, holding the material-change finding was clearly erroneous and remanded to incorporate only the parties’ July 2014 stipulation into the original May 2013 judgment; two justices dissented.

Issues

Issue	Novak's Argument	Capes' Argument	Held
Whether a material change in circumstances justified modifying parenting time	Capes’ unilateral daycare change, pattern of inflexibility and hostile communications constituted new, important facts harming the children’s relationship with Novak	No material change: daycare decision was within primary custodian’s authority; no evidence children were harmed or alienated; parents later stipulated to several adjustments	Reversed: court held the district court’s finding of a material change was clearly erroneous and unsupported by evidence
Whether daycare selection is a “major decision” requiring joint input	Novak treated daycare change as evidence of control limiting her access	Capes argued daycare selection is not a major decision and he changed providers for supervision/communication concerns	Held: Court found no authority requiring joint decisionmaking for daycare and did not sustain district court’s emphasis on it
Whether parental hostility negatively impacted the children enough to alter custody/allocation	Novak pointed to electronic bickering, an altercation observed by children, and children’s upset at transitions	Capes conceded poor communication but said no evidence children observed conflicts, no diagnosis of harm, and children resisted leaving Novak (not rejecting him)	Held: Majority found insufficient evidence that hostility negatively impacted children; district court’s finding was clearly erroneous; dissent disagreed
Whether district court applied best-interest factors adequately	Novak argued modification was in children’s best interests given decreased facilitation by Capes	Capes argued court did not show harm or apply N.D.C.C. §14-09-06.2 factors	Held: Majority held the court’s order lacked adequate best-interest analysis and reversed; dissent believed findings were adequate and would affirm

Key Cases Cited

Hoverson v. Hoverson, 859 N.W.2d 390 (N.D. 2015) (standard for modifying parenting time and need for material change)
Prchal v. Prchal, 795 N.W.2d 693 (N.D. 2011) (material change and best-interests test for parenting modification)
Dufner v. Trottier, 778 N.W.2d 586 (N.D. 2010) (material change defined as important new facts unknown at initial order)
Helfenstein v. Schutt, 735 N.W.2d 410 (N.D. 2007) (examples of material change)
Young v. Young, 746 N.W.2d 153 (N.D. 2008) (scheduling problems and child behavior can be material changes)
Ibach v. Zacher, 724 N.W.2d 165 (N.D. 2006) (move/out-of-state issues as material changes)
Simburger v. Simburger, 701 N.W.2d 880 (N.D. 2005) (change in willingness to allow unsupervised visitation can be material)
Reinecke v. Griffeth, 533 N.W.2d 695 (N.D. 1995) (visitation interfering with routine and school can justify modification)
Bertsch v. Bertsch, 710 N.W.2d 113 (N.D. 2006) (clearly erroneous standard for findings of fact)
Seibold v. Leverington, 837 N.W.2d 342 (N.D. 2013) (when parties cannot cooperate, court may enter a structured parenting plan)
McAdams v. McAdams, 530 N.W.2d 647 (N.D. 1995) (custodial parent must not "poison the well" and should nurture the other parent's relationship with children)
Krueger v. Tran, 822 N.W.2d 44 (N.D. 2012) (parental alienation can be a material change)