965 N.W.2d 408
N.D.2021Background:
- Parties divorced in 2013; Nicole Kunz (formerly Slappy) was awarded primary residential responsibility for the parties' minor child, M.S.
- In May 2020, Jermece Slappy moved to modify residential responsibility, seeking equal residential responsibility; Kunz initially did not respond and the district court found a prima facie case.
- After a September 2020 evidentiary hearing, the district court found Slappy's changed work schedule and his exercise of "substantially more parenting time" constituted a material change in circumstances and granted equal residential responsibility.
- The district court made no findings that the child had been adversely affected or that there had been a general decline in the child's condition; the child was found to be healthy and doing well.
- The court left child support to be resolved later; the child-support computation relied in part on financial information submitted after the evidentiary hearing.
- The North Dakota Supreme Court reversed the modification of residential responsibility, finding the district court applied an erroneous legal standard under N.D.C.C. § 14-09-06.6(6).
Issues:
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether a change in a parent's work schedule and increased parenting time can constitute a "material change in circumstances" under N.D.C.C. § 14-09-06.6(6)(a). | Kunz: Work-schedule changes alone (or increased parenting time) are insufficient unless equal/primary residential responsibility has already changed. | Slappy: Increased availability plus actual substantially more parenting time supports a material change. | The Court: A change in work schedule coupled with actual substantial increase in parenting time can satisfy the material-change requirement. |
| Whether modification also requires showing the change adversely affected the child or a general decline in the child's condition (N.D.C.C. § 14-09-06.6(6)(b)). | Kunz: Modification requires evidence the change adversely affected the child or a general decline. | Slappy: Did not assert adverse effect or decline. | The Court: Subpart (b) requires showing the modification is necessary for the child's best interests—this ordinarily requires evidence the change adversely affected the child or there has been a general decline; the district court erred by not making such a finding and the modification was reversed. |
| Whether the Court should adopt a stricter rule that the parenting-time change must already equal a change in residential responsibility. | Kunz: Urged adoption of that stricter standard. | Slappy: Opposed stricter standard. | The Court: Declined to adopt the stricter rule—no automatic requirement that parenting-time variance itself already effect a custody change. |
| Whether the district court properly calculated child support using financial information submitted after the evidentiary hearing (Slappy's cross-issue). | Slappy: Argued district court improperly used post-hearing financials and miscalculated support. | Kunz: Advocated for different calculations based on available submissions. | The Court: Did not decide this issue as reversal of the residential-responsibility modification made resolution unnecessary. |
Key Cases Cited
- Krueger v. Tran, 822 N.W.2d 44 (N.D. 2012) (standard of review and modification principles)
- Ritter v. Ritter, 873 N.W.2d 899 (N.D. 2016) (work-schedule changes can be material in some contexts)
- Ehli v. Joyce, 789 N.W.2d 560 (N.D. 2010) (substantial deviation from custodial schedule may show material change)
- Boumont v. Boumont, 691 N.W.2d 278 (N.D. 2005) (significant change in custodial arrangements may require amendment)
- Johnshoy v. Johnshoy, 961 N.W.2d 282 (N.D. 2021) (affirmed need to show change adversely affected children to warrant modification)
- Kelly v. Kelly, 640 N.W.2d 38 (N.D. 2002) (statutory "necessary" codifies prior two-step test)
- Delzer v. Winn, 491 N.W.2d 741 (N.D. 1992) (prior precedent cautioning that parental improvement alone usually not sufficient)