Lovett v. Lovett, 2022 ND 37

Viviana and Antonio Lovett divorced in 2018; judgment adopted a parenting plan giving equal residential responsibility and provided the plan would be reviewed if the oldest child turned ten or if either parent intended to move more than 50 miles.
In 2019 Antonio moved to modify custody; in January 2020 the district court awarded him primary residential responsibility and entered a modified judgment that incorporated unchanged portions of the 2018 parenting plan.
April 2021: Antonio moved to relocate the children to Japan; Viviana moved to modify primary residential responsibility, arguing the 2018 review clause (move >50 miles) allowed her to seek modification within two years.
June 2021: the district court denied Viviana’s motion, finding she failed to plead a prima facie case under the statutory two-year limit and its exceptions.
August 2021: the district court denied Antonio’s relocation motion; the Supreme Court concluded the appeal is moot and dismissed it.

Issue	Plaintiff's Argument	Defendant's Argument	Held
Whether Viviana established a prima facie case to modify primary residential responsibility within two years of the 2020 order	The parenting plan’s review clause (move >50 miles) was incorporated into the 2020 judgment and Antonio’s relocation motion to Japan triggered the clause, so Viviana need not plead statutory exceptions	The statutory two-year limitation governs; Viviana failed to allege any statutory exception and there was no evidence the father had actually moved	Court did not reach merits — appeal dismissed as moot because Antonio’s relocation motion was denied and the triggering basis no longer existed
Whether Viviana could rely on the parenting-plan review triggered by the oldest child turning ten	Oldest child turning ten triggers review under the parenting plan	Argument was not raised below and therefore should not be considered on appeal	Court refused to consider it because it was raised for the first time on appeal

Wald v. Holmes, 839 N.W.2d 820 (N.D. 2013) (prima facie showing required to obtain evidentiary hearing on modification)
Tank v. Tank, 673 N.W.2d 622 (N.D. 2004) (definition of prima facie case in custody-modification context)
Kerzmann v. Kerzmann, 965 N.W.2d 427 (N.D. 2021) (de novo review applies to legal question whether prima facie case established)
Bies v. Obregon, 558 N.W.2d 855 (N.D. 1997) (courts will not issue advisory opinions; need an actual controversy)
Nelson v. Nelson, 944 N.W.2d 335 (N.D. 2020) (mootness when subsequent events prevent effective relief)
Interest of B.A.C., 902 N.W.2d 767 (N.D. 2017) (appeal is moot if decision cannot have practical legal effect)