937 N.W.2d 540
N.D.2020Background
- Parties: Blaine Konkel (lives in Colorado) and Courtney Amb (lives in North Dakota) share one child born in 2015. 2016 judgment gave Amb primary residential responsibility.
- Initial parenting-time terms: up to 72 hours/month in North Dakota (may be overnight); when child turned two, up to four weeks/year in Colorado (periods ≤ 2 weeks) with 30-day notice; holiday split (Thanksgiving/Christmas alternating); Konkel pays parenting-time expenses.
- In October 2018 Konkel moved to modify parenting time, arguing the child’s age/development and changes in the parties’ employment were material changes warranting more Colorado time and clearer transportation/exchange terms.
- District court denied modification, finding no material change in circumstances, but clarified exchange locations (Jamestown, Devils Lake, Fargo, Grand Forks) due to recurring dispute.
- Konkel appealed, raising additional claims that the original judgment failed to meet statutory parenting-plan minima and that relevant statutes are unconstitutionally vague.
- North Dakota Supreme Court affirmed: no material change proved; clarification of exchange locations was proper; statutory-minima and constitutional challenges were either precluded or not preserved.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether a material change in circumstances justified modifying parenting time | Konkel: child is older (1 → 4), has bonded with him and family; his employment changed (self-employed, new businesses) allowing different schedule — thus modification needed for more Colorado time | Amb: prior order anticipated age-based changes; employment changes are speculative and do not currently affect parenting time | No — court found no material change; prior order anticipated child’s aging and employment change lacked present impact |
| Whether court could amend parenting plan to specify exchange locations absent a material-change finding | Konkel: court erred to amend plan after finding no material change | Amb: clarification was needed because the original judgment was vague and exchange-location disputes caused conflict | Court may clarify ambiguous judgment; amendment specifying exchange locations was proper |
| Whether deficiencies in the initial judgment under N.D.C.C. § 14-09-30(2) can be raised now | Konkel: initial judgment lacks required specifics (school days off, birthdays, weekends, summers, vacations) | Amb: issues should have been raised on direct appeal from the initial judgment | Precluded — issues not raised on direct appeal cannot be raised in this modification appeal |
| Whether N.D.C.C. §§ 14-05-22(2) and 14-09-06(2) are unconstitutionally vague | Konkel: statutes give no guidance, violate separation of powers and due process | Amb: argument not preserved; best-interests standard is constitutionally permissible under Supreme Court precedent | Not considered on appeal (not preserved); Supreme Court precedent supports best-interests standard as constitutional |
Key Cases Cited
- Curtiss v. Curtiss, 886 N.W.2d 565 (N.D. 2016) (standard of review for parenting-time findings and material-change/best-interests framework)
- Green v. Swiers, 920 N.W.2d 471 (N.D. 2018) (material-change examples: parental alienation supporting modification)
- Siewert v. Siewert, 758 N.W.2d 691 (N.D. 2008) (remarriage and resultant conflict can be a material change)
- Young v. Young, 746 N.W.2d 153 (N.D. 2008) (change in work schedule may be a material change)
- Reinecke v. Griffeth, 533 N.W.2d 695 (N.D. 1995) (parenting schedule causing conflict/behavior problems can justify modification)
- Orvedal v. Orvedal, 669 N.W.2d 89 (N.D. 2003) (courts may clarify vague or ambiguous judgments)
- Glass v. Glass, 906 N.W.2d 81 (N.D. 2018) (appellate preclusion of issues not raised on direct appeal)
- Hagen v. Horst, 923 N.W.2d 106 (N.D. 2019) (constitutional issues must be adequately raised below)
- Riemers v. O’Halloran, 678 N.W.2d 547 (N.D. 2004) (bare assertions insufficient to preserve constitutional claims)
- Peters-Riemers v. Riemers, 624 N.W.2d 83 (N.D. 2001) (issues not presented to district court not considered on appeal)
- Reno v. Flores, 507 U.S. 292 (U.S. 1993) (best-interests standard is a proper criterion in custody disputes)
- Pac. Mut. Life Ins. Co. v. Haslip, 499 U.S. 1 (U.S. 1991) (discretionary standards can satisfy due process when reasonably constrained)