Frison v. Ohlhauser
812 N.W.2d 445
| N.D. | 2012Background
- Frison and Ohlhauser never married; they have a child, W.H.O., born in 1998.
- A 1999 district court judgment granted Ohlhauser residential responsibility, with Frison given visitation and ordered child support; the judgment was later amended in 1999, 2003, and 2004.
- In December 2010 Frison moved to amend the judgment to modify residential responsibility, asserting a material change due to alleged poor feeding and a cat allergen issue.
- A June 28, 2011 hearing considered Frison’s two asserted issues; W.H.O., Frison, and Ohlhauser testified.
- On July 7, 2011 the district court denied Frison’s motion to amend, finding no material change in circumstances and noting lack of corroborating evidence and that the cat had been removed.
- Frison appealed; the supreme court affirmed, holding that the district court properly found no material change and that no modification was warranted.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Was there a material change in circumstances warranting modification? | Frison contends new facts show a material change. | Ohlhauser argues no material change existed. | No material change found; district court not clearly erroneous. |
| Did the mature child’s preference constitute a material change in circumstances? | Frison cites W.H.O.’s preference as support for change. | Not clearly raised as a distinct issue; no reliance on preference. | Not separately considered on appeal due to lack of clear preservation. |
| What standard governs the modification of custody in this context? | Standard requires material change and best interests. | Court uses standard from Siewert; review limited to clear error. | Court applied the applicable two-step standard; affirmed no clear error. |
Key Cases Cited
- Siewert v. Siewert, 2008 ND 221 (ND) (burden on mover to show material change and best-interests necessity)
- Lechler v. Lechler, 2010 ND 158 (ND) (if no material change, court need not address best interests)
- Dietz v. Dietz, 2007 ND 84 (ND) (mature child’s preference may constitute material change)
- Kienzle v. Selensky, 2007 ND 167 (ND) (clearly erroneous standard for custody findings; no reweighing of evidence)
- Berlin v. State, 2000 ND 13 (ND) (arguments not raised below may not be considered on appeal)