*1 process sion satisfies substantive due
requirements Crane.
IV We affirm the commitment or- der. n WALLE, GERALD W. VANDE
C.J., MARING, MARY MUEHLEN CAR- KAPSNER,
OL RONNING DALE V. SANDSTROM, JJ., concur.
Appellee. No. 20080231. Supreme Court of North Dakota.
Aug. *2 Mclntee, Towner, N.D.,
Michael S. plaintiff appellant. *3 Graves, Bismarck, N.D.,
Rebecca C. appellee. defendant and SANDSTROM, Justice. appeals
[¶ Darin Frueh from a 1] dis- trict court order his motion for a change custody. We conclude the dis- upon trict court relied impermissible fac- tors in deciding whether a in custo- interests, dy was in the child’s best and we reverse and remand.
I Frueh, Darin Frueh and Melissa Hoheisel,
now known as Melissa were mar- ried in 1992 and had one together They December 1994. divorced in Janu- ary parties stipulated 2004. The tо custo- dy child, visitation and the stipulation incorporated was judg- into a physical ment. was Hoheisel awarded cus- child, tody of the and Frueh was awarded visitation. An amended judgment was en- 2004, in July setting tered Frueh’s child support obligation at month un- der support guidelines. the child After divorce, Hoheisel moved with the child from the home in Goodrich to Bis- marck. Hoheisel remarried March 2007, July Frueh moved for custody, change of there arguing material in circumstances because him, the child to live with wanted Hoheisel remarried, had and Hoheisel’s husband An physically assaulted the affidavit child. and a handwritten letter explaining why the to live child wanted alleging with Frueh and Hoheisel’s hus- him grabbed band the throat 2006 filed in were Frueh’s motion. district court concluded Frueh did facie case prima establish 596 14-09-06.6(4) an erroneous an the induced warranting law, reviewing if the court is appealed, and
evidentiary hearing. Frueh view Frueh, 26, ND conviction a v. with a definite firm left ” 862, presented (quoting had made.’ we held Frueh has been N.W.2d mistake a prima to establish Stanhope Phillips-Stanhope, sufficient evidence 79). 61, We case for modification facie The district decision and court’s weigh reversed district the evi position is in a better evidentiary hearing remanded opportunity because it has the dence *4 motion. as the witnesses’ demeanor and observe retry and do not credibility, their we sess 12, 2008, August an evi- During 4] [¶ the witnesses’ custody issues or reassess Frueh, Hoheisel, and dentiary hearing, is credibility sup if court’s decision testified, other witnesses several at in the record. Id. ported evidence the child in chambers. court intеrviewed between two 24. A district court’s choice attorneys present were dur- Both not permissible views of evidence is were not al- ing the child’s interview but clearly erroneous. question the child. After the lowed to Frueh’s motion hearing, the court denied re- modify custody, finding
to
Hoheisel’s
A
live
marriage
preference
and the child’s
years
If more than two
have
8]
[¶
changes
cir-
material
in
with Frueh were
custody
establishing
order
elapsed since an
cumstances,
change
custody
in
would
but a
entered,
may
prior
best
in the child’s
interests.
be
custody order if the court finds:
jurisdiction
court had
district
[¶ 5]
of
that have aris-
a. On
basis
facts
Const,
8,
VI, §
N.D.
art.
under
or which
prior
en since the
order
appeal
§
is
N.D.C.C.
27-05-06.
unknown to the court at the
were
4(a). This
N.D.RApp.P.
under
timely
order, a
prior
time of the
material
Const,
N.D.
jurisdiction
has
Court
change
in the circum-
has occurred
VI,
6,
§§
§
2
N.D.C.C.
28-
art.
parties;
or the
stances of
27-01.
necessary to
b. The modification is
II
of the child.
serve the best interest
the district court
argues
Frueh
14-09-06.6(6).
The party
change
for a
his motion
erred
seeking
change custody
hаs
burden
the court’s find-
of
He contends
a material
proving
of
there
been
is not a mature child for
ing that
change
and a
preference
change
is
circumstances
purposes
expressing
erroneous,
necessary
is
serve
improper-
and the court
clearly
Siewert,
221,
2008 ND
ly
opinion
its
on its
best
interests.
based
decision
¶ 16,
enough
support.
is not
be sufficient under- standing, experience express B *5 preference. If a finds [¶ 10] district court j. Evidence of domestic violence.... change there has been a material in cir cumstances, k. The it must then interaction consider whether and interrelation- ship, custody potential in or the necessary is to serve for interaction Siewert, interrelationship, the the child’s best 2008 of child interests. any in, with 221, 19, person who resides is 691. The court present, frequents or the household apply must set out in factors N.D.C.C. of a 14-09-06.2(1) parent and who may significant- § decide whether ly affect the child’s best interests. in is in the child’s best The court per- shall consider that The interests. best interests child’s history son’s or inflicting, tenden- must be against backdroр cy inflict, harm, physical bodily stability of the relationship the child’s assault, injury, or physi- the fear of parent. with the custodial Id. The best harm, assault, bodily cal injury, or interest factors include: on other persons. love, affection, a. The and other emo- l. making of false allegations not tional ties existing par- between the faith, made in good parent one ents and child. other, against of harm to a child b. capacity disposition as defined section 50-25.1-02. parents give love, the child affec- Any m. other factors considered tion, guidance and to continue particular court to be relevant to a the education of the child. custody dispute. child c. disposition parents 14-09-06.2(1). food, provide the clothing, child with care, medical or other remedial care Here, district applied court recognized permitted interest factors none of best and found laws of this state in lieu of medical or factors favored either Frueh Ho- care, and other material needs. heisel, m, except b which factors fa- length d. Thе time child has argues vored Hoheisel. Frueh the district satisfactory lived in stable environ- improperly on the based its decision desirability ment and the of main- support pays amount child he and erred taining continuity. failing preference. consider [Frueh], will not but this treatment with stop [Frueh’s] child] whether [the re- court’s decision The district [Ho- [Hoheisel’s] sup- of Frueh’s child ferred to the amount financial re- have the does not heisel] said the level and the court port obligation, simply un- compete. sources to This factor in deсid- support was a relevant [Hoheisel], fair. favors This factor inter- was in the child’s best whether it modify custody: ests to the district We conclude resources Clearly the financial impermissi- law and misapplied he for [the child] available [Frueh] has amount of Frueh’s bly considered the expe- more provide fun has been able to aby which was set support obligation, [Frueh] riences [the child]. support guide under the order $4,500 him on paid helping [the child] support obligation lines. When he would stated the farm. [The child] was initially calculated got he and his uncle after help [Frueh] 3,300 farming self-employed farmer Re- days. a.m. most around 11:00 up support obligation was acres. His child only been markably enough [Frueh] using support guide calculated wage pay minimum able to afford wage lines was based on minimum per month support based ex wage income because the minimum ($2,016 per year) to assist in five-year average ceeded his annual *6 child], less then half which is [the come, generally is to calculate which used he money As pays child]. he [the supрort child self-employed individual’s hearing when asked testified at requested the court obligation. Hoheisel farm large operation, his substan- about income, was impute arguing he in- acreage wage his minimum tial found Ho- underemployed, but come, Clearly got expenses.” “I’ve provide not sufficient evidence heisel did envi- deliberately has created an [Frueh] underemployed and ordered Frueh was wage income” ronment on “minimum his in child pay month provide far more that allows him to obligation child support. supрort It than his “remedial care.” [the child] the 2004 has been reviewed since to live is no wonder wants [the child] judgment was entered. Frueh amended with [Frueh]. recently expanded his testified that he considering factors relevant to 7,500 acres, other operation to farm farming § 14-09- custody dispute under N.D.C.C. held obligation of his was support review 06.2(l)(m), the court found: his motion to pending outcome custody. of a child fact The amount is troubled Court
[Frueh],
obligation
using
calculated
farming opera-
support
his large
with
is
be
acreage,
guidelines
presumed
his
support
substantial
tion
his
income,
N.D. Ad
very
support.
so
able
the correct amount of
wage”
“minimum
is
§
There was no
a min. Code 75-02-04.1-09.
willing
provide
with
[the child]
snowmobile,
pay
ever
more
evidence that Frueh
refused to
four wheeler and
was
support
or
he
pays
support,
than he
in child
the ordered child
cash
account,
support payments.
lots
late
his
Because
checking
phone
a cell
was
support obligation
calculated
of freedom.
has
been Frueh’s
[Frueh]
guidelines
is
“buy” using
support
in
long
term effort to
engaged
affection,
to be the correct amount
presumed
his
plan
[the child’s]
the district court
support,
to be
we conclude
worked.
wants
[The child]
misapplied
improperly
the law and
consid- mature child’s preference may
particu-
be
ered the amount of Frueh’s child support
larly significant in deciding what
inis
obligation
deciding whether to
interests,
best
child’s
but it is not neces-
McDowell,
v.
McDowell
sarily
Myers
Myers,
determinative.
Cf
¶¶
12-13,
(par-
erence, whether questions the Court clearly maturity to argues [the child] to him being failing is done allow the appreciate what discretion abused its essentially anything him giving testimony from attorneys present [Frueh] [the child] of what erred he wants. terms He contends child. wants, favors certain question [Frueh]. factor the child about failing this not preference is cus child’s] But since raised the motion [the issues child,” fa- mature this factor tody. that of “a The district court has discretion witnesses, party. vors neither regarding examination in custody pro including child witnesses maturity of the child 16] [¶ ¶ 16, Reineke, 167, ceedings. depend will factually driven issue and N.W.2d 841. of the case. on the facts and circumstances clearly erroneous standard Under the During August review, not evidence or the we do reassess in 2008, evidentiary hearing, credibility retry witnesses’ or it would interview parties formed the case, judg do not our and we substitute attor and the in chambers child merely ment for a district court’s decision be dur neys present be allowed to would might have reachеd different because we would not be allowed the interview but Niemann, result. Niemann attorney child. Frueh’s question ¶54, 11, 3. “A choice between 746 N.W.2d fine, said, Your object did “That’s not weight permissible views of the two questioned, child Honor.” evidence erroneous and our op attorney request did especially applicable review is deferential any ask portunity questions decision involv for difficult any further request the court ask the *8 appeal, the parents.” two fit Id. On object when the party “A must questions. of complaining party bеars burden may error occurs so the trial court alleged clearly finding of fact is errone proving a action, possible, if to rem appropriate take Koble, 11, 6, ND 743 ous. v. 2008 Koble edy that have resulted.” any prejudice Frueh failed to N.W.2d 797. We conclude ¶ 16, Shaliin, 767 v. 2009 Khokha proving meet burden of court’s his object 159. Frueh’s failure to findings maturity the child’s are about or to the court interviewed when erroneous, not with clearly and we are left certain request the court ask firm mistake a definite and conviction this is argument on questions waived his has been made. sue. IV Frueh contends district findings [¶ 20] that The district court’s
[¶ 17] and is against all farmers judge not was biased not a mature child are the child is hearing. conducting a fair erroneous, of incapable but we conclude change Frueh did not for a judge majority move The opinion [¶ 24] concludes judicial or raise issue bias before the that the trial court an impermis- relied on “ district court. ‘We have repeatedly held sible factor in deciding custody because that issues not raised [district] the court refеrred to the fact that Frueh cannot be for on raised the first time paying only month in child The appeal. failure to raise the issue support based on his claim of “minimum judicial bias in the court pre [district] wage” analysis income. In the trial court’s ” our on appeal.’ cludes review Molitor v. factors, of the best interest it does mention Molitor, 163, 12, (c) 718 N.W.2d analysis these facts in its of factor Wenzel, (m). (quoting Wenzel 469 N.W.2d factor (N.D.1991)).
156, 158 ¶In opinion, [¶ 25] its the majori- ty length at quotes from the trial court’s V (c), analysis of factor but fails to recognize Wе conclude the [¶21] district court’s (c) that the trial court found factor “favors decision is erroneous because the Therefore, (c) party.” neither factor did impermissible factors weigh in favor of ma- Hoheisel. The deciding whether it was in the child’s best (b) (m) jority states only that factors modify custody. interests to We reverse Hoheisel, favored but in fact the trial court order motion (e), permanence also found factor as “[t]he and remand for the unit, family the existing or proposed district court to properly сonsider the best home,” favored See Hoheisel. N.D.C.C. interest factors. 14-09-06.2(l)(e). § Frueh does not raise regard an issue to the trial court’s WALLE, GERALD W. YANDE (e). finding on factor Frueh also does C.J., CROTHERS, DANIEL J. an with regard raise issue to the trial KAPSNER, JJ., CAROL RONNING (b), finding court’s on factor capacity “[t]he concur. disposition parents give MARING, Justice, concurring and dis- love, affection, guidance senting. continue the education of the child.” See I II respectfully parts 14-09-06.2(1)(b). concur III, B.2, IV, dissent objection Frueh does raise majority opinion. remainder of the (m), be- trial court’s on factor majority concludes that the district court cause of the court’s reference his “mini- in denying erred motion wage” mum income and child support his majority con- ¶ 12, payment. majority opinion, at improperly cludes the court its based quotes finding: this opinion decision its that Frueh is not *9 paying enough support. by child I am the The Court is troubled fact the [Frueh], opinion that in there is evidence the with large farming opera- record his support finding, to the trial I and acreage, court’s and tion his substantial and his income, disagree misapplied that the trial court “minimum is so wage” very able law impermissibly willing or a provide considered with [the child] snowmobile, support obligation amount child four wheeler and a more Frueh’s pays income its decision that it would not than a support, cash he child account, be in modify checking the child’s best interest a cell lots phone and custody. of freedom. has been [Frueh] work, phone cell “buy” for summer’s long in a term effort to
engaged affection, his plan consequently child’s] trial court [the contract. The to be wants child] worked. [The credibility of Frueh’s mo- questioned the [Frueh], this treatment will but inference tives. The trial court drew the stop [Frueh’s] whether [the child] that the child’s reasons the evidence custody [Ho- or [Hoheisel’s] wanting to live with his dad were influ- have financial re- does not heisel] money, by expensive gifts, enced un- compete. simply This is sources he his dad and that freedom received from [Hoheisel], fair. This factor favors his dad had created “fun” environment (m), 14-09- Factor gain preference. order to the child’s 06.2(1), “[a]ny оther is a consideration of The essence of the trial court’s [¶ 28] by the court to be rele- factors considered paying is not that Frueh is too finding custody dispute.” to a child particular vant therefore, and, little his mo- support child case, During hearing in this Hoheisel denied, modify custody is but rath- tion to many how he farm- asked Frueh acres was farming giving of Frueh in his ing and Frueh that he er that the conduct answered 7,500 employ- and has two full-time thirteen-year-old significant acres son twelve to trial part-time employee. ees and оne he has “minimum gifts money when expressed surprise pay- that he was wage” question income calls into support minimum ing wage child credibility and on the improper influence ex- Frueh “I have a lot of responded: preference. him pense.” attorney then asked majority summarily declares [¶ 29] if child example, on redirect: “For impermissible that it trial you now on support did review based wage court to his minimum in- consider income, year’s your support last would paid support come and the amount of child probably go up?” Frueh answered: by sup- Frueh one attorney citing Ho- without case “Yes.” Frueh’s then asked on if there was port heisel recross-examination it. pending child review the out- support Our Court has affirmed trial come of the modification case Hoheisel decisions, in which the trial court “[y]es.” answered the economics of parents trial opinion I am of the that the custody determinations. Woods v. deny did not base its decision Ryan, the father moved for modification opinion its motion on that child who inwas and, enough
was not
paying
of the mother. 2005
therefore, disagree
majority’s po-
with the
granted
consider of whether nation there were claimed that circumstances, namely changes material moth- preference which necessitated remarriage, er’s custody of the child physical in the The trial court found neither him. in the changes necessitated these custody of the child the best interests the 197 pages After a review of the child. findings transcript, I conclude by the supported court are evidence trial the trial court did not the record and impermissibly the law or consid- misapply er I would affirm the order evidence. motion modi- the trial court fy custody it is not errone- because ous. Maring Mary Muehlen Dakota, of North Plaintiff
STATE Appellee BOYLE, Defendant Thomas Scott Appellant. No. 20090020. Dakota. Supreme Court North Aug.