Green v. Green

upon judge to a different sign the case agree- if no of bias perception prevent remand. rejects the court is reached ment trial ensued subsequent “and a

agreement, language judge.” This the same IV before may be judge suggests the remain- have considered We [¶ 33] of bias. appearance necessary to avoid by the raised arguments ing issues Dimmitt, concluded: we unnecessary to them to be and find parties only to 11 is not of Rule purpose We reverse or without merit. our decision neutrality also but judicial protect and remand of conviction judgment judicial effect the coercive eliminate guilty his to withdraw allow Vandehoven bargaining. plea participation presiding that the instructions with plea, in United Appeals Court Sixth Circuit origi- than the judge other assign judge (6th Barrett, F.2d States further judge to conduct sentencing nal (citation omitted), Cir.1992) explains: proceedings. objectivity, judge’s

“Regardless WALLE, VANDE GERALD W. perception [¶ 34] it is the defendant’s CROTHERS, J., C.J., DANIEL J. whether judge that will determine to enter will feel coerced concur. defendant Judge can District Even if the plea.” Justice, in the KAPSNER, concurring the defen- knowledge about aside put result. hearing, a fair provide dant and reached in the result concur [¶ 35] doubt from remove the

judge cannot articu- for the reasons majority opinion by his mind caused the defendant’s that opinion. B and III of parts in II lated To cure this case. this statements judicial participation improper SANDSTROM, J., DALE V. then, process, plea bargaining concurs. to another assigned case must be

judge. re- sentencing judge could if the

Even objectivity and act with impartial

main case, issue is whether larger

in this judge perception

the defendant’s coerced to enter that he will feel is such 2009 ND 162 circum- these particular plea. Under GREEN, Appellant Plaintiff judicial stances, improper cure an pro- plea bargaining participation cess, assign appropriate it is GREEN, Lucy Defendant A. judge. to another Appellee improper par- court’s A district No. 20080284. may lead to negotiations ticipation plea ultimately if the case perception of bias Dakota. of North Supreme Court judge. See the same goes to trial before Sept. Dimmitt, Note. Explanatory N.D.R.Crim.P. in this presented Under the circumstances as-

case, appropriate it is we conclude affidavit, Hann she also states that she (argued), Hann B.G.’s O’Kara Camille Dickinson, ND, PLLC, plaintiff house does not feel safe her mother’s Law appellant. her mother fails to lock their doors, drinks to excess and leaves her and (argued) Nelson and Carol Jennifer overnight. B.G.’s her sister alone affidavit Legal Myron (appeared), Thomas Jackson mother also claims that when her drinks Dakota, Bismarck, ND, of North Services names, derogatory making calls she B.G. appellee. and for defendant feel sad and uncomfortable. B.G. B.G. CROTHERS, Justice. is when mother said she afraid her drinks always not because she does come home appeals from the dis- Britt Green [¶ 1] denying him an she is afraid her mother will be in an order eviden- and trict court’s a tiary change on his motion for of hearing accident. the district court’s custody. We reverse Lucy Britt opposed Green [¶ 4] an remand for hear- order and a change custody. for of Green’s motion motion, concluding Britt

ing on the Green September setting In a date without facie prima entitling a him established for hearing, district evidentiary hearing. to court denied Britt Green’s motion for a custody. Britt change denying of In a change custody, Green’s motion for Lucy and Green were Britt Green heightened requirements the court stated May child was 2007. One born divorced placed were Britt he on Green because Lucy marriage, B.G. also has Green moving a custody was modification Britt whom Green two other children years existing within two from the date a at adopted, one of whom was still minor custody parties parties order was issued. district the time the divorced. judgment, giving the divorce stipulated to court Britt did meet concluded Green Lucy physical custody of chil- Green heightened requirements because he to with the allowing dren her relocate “specifically did not on what address basis judg- to Nebraska. The divorce children he claims development [B.G.’s] emotional visitation, ment gave Green liberal might impaired.” him summer visitation with providing B.G. commencing following “one week [B.G.’s] II until spring

release from school one Lagro Lagro, In to prior week to two weeks com- prior ¶ fall.” a plurality mencement of school B.G. spent summers with of this Court held that review of the denial Britt Green. of an on change custody is reviewed under abuse-of- August In Britt Green filed review, discretion standard. After further judgment a amend the divorce to motion to appropriate we conclude the standard of Lucy change of B.G. from applied to reviewing review be affidavit, In Britt Britt Green. Green’s evidentiary hearing denial of an on expressed he B.G. a desire to re- alleged is de novo. De novo is the Lucy side him because Green drinks with a names, appropriate standard of review because excessively, derogatory calls her party moving change custody, when less unsupervised overnight her leaves night. passed, fails lock their house than has required doors prima give facie case. N.D.C.C. shall notice establish to the other party 14-09-06.6(4). proceeding may held that who serve and We file response opposing determination whether facie case affidavits. The shall court consider the motion question of law. established briefs ¶ 8, O’Neill, argument and without oral evidentia- O’Neill ry hearing J., deny and shall at 29 the motion Lagro, (Kapsner, unless court Questions moving party finds dissenting). law are reviewed J.K., has established a facie justi- ease de novo. Interest fying If modification. To the cases extent established, case is the court shall a set abuse of as the reflect discretion standard for an evidentiary hearing.” date reviewing when denial of an evidentia- ry hearing change on a of motion custody prima The burden to a establish facie case within years prior made two order moving is on the party. § N.D.C.C. 14- establishing they custody, are overruled. 09-06.6(8). Frueh, In Frueh v. we stated: prima “A facie does require case not argues Britt Green the district

[¶ which, if proved, facts would mandate erred an grant court when it failed to him change custody as a matter of law. A he hearing because established prima only facie requires case facts facie Britt Green prima ease. claims which, proved if at an hear- for three affidavits attached his motion ing, change custody would provide of custody first-hand that could be if A appealed. affirmed knowledge affi- alleged of the facts prima facie only ‘enough case is evidence that in an davits and establish B.G. lives to allow the to infer fact-trier the fact at may endangering environment that be her and rule in party’s issue favor.’ It is health. emotional minimum.” bare 14-09-06.6(5), N.D.C.C., 7] Section ¶26, 6, (citation 745 N.W.2d 362 states: omitted). Tank, See also Tank v. court may prior “The cus- ¶15, 9, 673 N.W.2d 622. tody two-year order within the period A party opposing a custo following entry of an order date dy modification can rebut establishing custody court unless the by presenting demonstrating evidence necessary finds the is modification moving party is not entitled to modifi serve the best and: interest child ¶ Frueh, at opposing cation. “When persistent and a. willful denial or party presents counter-affidavits that con visitation; interference with clusively allegations show the of the mov present b. child’s environment ing party credibility, have no or when the may endanger physical the child’s or face, allegations are, on their movant’s in impair emotional health or child’s modification, justify custody sufficient emotional development; court, § the district under N.D.C.C. 14- c. The primary physical care of the 09-06.6(4), moving party can find the changed child has to the parent other not established a facie case and longer for than six months.” deny the motion without 14-09-06.6(4), N.D.C.C., requires: Section hearing.” at 7. When determin party “A seeking ing modification of a custo- whether a facie case has been established, dy moving order shall weigh serve file the court cannot papers supporting conflicting allegations. affidavits and at 13. Id. To estab- development.” child’s emotional argues Britt Green Lucy Green evidentiary hearing may be- present environment lish B.G.’s not entitled motion under brought his im- cause B.G.’s health or endangering he emotional Green’s agree Britt wrong statute. We Britt development, pairing her emotional incorrectly motion modification affidavit, affi- his own Green submitted 14-09-06.6(6), al- which cites N.D.C.C. wife, Green, B.G.’s of his Terri davit modify custody if more lows the court affidavit, In Britt he affidavit. Green’s the exist- since passed than en- alleges present environment is B.G.’s However, custody order was issued. ing health dangering her emotional and his affidavit Britt Green’s motion both Lucy told him B.G. is warrant- allege a modification drinks, derogatory calls B.G. names. she B.G.’s environment “present ed because his Britt Green’s affidavit also discusses her health emotional endangering Lucy negative effect concern about impaired risk emotional places her at drinking may have on B.G. Terri Green’s Therefore, although development.” B.G. said she alleges Green’s affidavit in his mo- wrong the statute Green cites live with and Britt Green wanted to her tion, alleges correctly he one drink, they they do not eat dinner § 14-09- in N.D.C.C. grounds listed enjoys family spend- home B.G. at as and 06.6(5), allowing a modification of step-brothers. time her ing with years passed have when than two less existing custody order. entry since affidavit, In B.G.’s she states she to live with her father because she wants dis argues Britt does not safe with her mother since feel eviden- denying trict him an court erred doors, fails to lock their house her mother B.G.’s tiary hearing because he established B.G. and her sister drinks lot leaves her present endangering environment is overnight sleeps alone while her mother impairing emotion health or her emotional boyfriend’s house. also over her B.G. determining an evi- development. al drinks, calls states when her mother she warranted, not dentiary was names, making her her “feel derogatory that correctly recognized district court very sad and said uncomfortable.” B.G. heightened requirements placed on a when her mother drinks be- she afraid to custo bringing a motion movant always cause her mother not come does years passed have dy less than two when get home and is afraid her mother will was is she existing since the order sued. district court determined into an accident. claims her mother B.G. re heightened not meet ignores Green did when she her mother that her tells to quirements entitling him an being alone. also she is afraid left B.G. “spe Britt Green did not hearing because night January stated that one she claims cifically address on what basis he up night woke in the middle of development might be emotional [B.G.’s] way she her bathroom saw impaired.” strange sleeping in their recliner in man living her room. B.G. claims she woke 09—06.6(5)(b),

[¶ Section 11] 14— up up mother and her mother woke N.D.C.C., allows custo- the court stranger him could there sleep and told he dy passed if when less than two have night for the but he had to leave present the court finds that child’s “[t]he morning. especially B.G. said was may endanger the child’s she environment impair night health afraid because her bedroom physical or emotional this SANDSTROM, Justice, and her does living next room room concurring. door. not have lock on the consequential The most of this disagreements Court’s relating have “al [¶ 13] We stated that 14-09-06.6(4) N.D.C.C. has related to alone establish facie legations prima do not type required evidence establish hear requiring evidence facie case. strongly have advocat- Frueh, 26, 6, ing.” 2008 ND ed that the evidence must competent be To establish a enti and admissible. See Frueh evidentiary hearing, the movant tling to an 362; Lagro the affidavits submitted the movant ¶¶ 15, 18, Lagro, 2005 ND Id. competent. must We have held ¶¶ Tank, 53, 55, Tank v. “competence usually requires that the wit (Sandstrom, J., dissent- knowledge, have wit ness first-hand ing). words, In other person must generally competent nesses are to tes normally personal, firsthand knowl- suspect to what are.” tify they the facts edge. cases, This has had an effect not competent Id. “Affidavits are requirement, without this cases would have they fail to personal show basis actual See, differently. e.g., decided Lagro, they knowledge or if state conclusions ¶¶ 703 N.W.2d 322 without facts.” (“The lack of detail and competency in Id. Lagro’s allegations Leah make them insuf- ficient on their face to establish a by 14] affidavits submitted [¶ for custody facie case modification. We competent affida- Green B.G.’s order[J”). affirm district the court’s knowledge vit is based on her first-hand provides [¶ 18] and because B.G.’s affidavit factu- standard of review for this Court’s evaluation of a district court’s de- allegations al for the contained in termination of whether a facie case Britt Green’s and Terri Green’s affidavits. has been been subject established has conclude Britt suf- provided We of more esoteric debate. Some have con- competent ficient evidence to a establish tended that the standard should be de warranting case an law, novo of a question review and oth- hearing on his motion for a ers have contended that the standard custody.

should be abuse of discretion. Of course, a court abuses its discretion if it Ill misinterprets misapplies or I law. conclusion, previously Because of our it is have for an [¶ 15] advocated abuse of discretion standard. In none of our unnecessary remaining prior to address the is- majority signed cases has of this Court raised parties. sues We reverse an opinion establishing an abuse of discre- district court’s order and remand for tion standard. evidentiary hearing motion, on con- cluding Britt Green established a Lagro, majority Before [¶ 19] this facie ease him to an entitling clearly Court had said that whether a pri- hearing. ma facie case has been made is a matter of subject to Hawley

law de novo review. v. ¶4, 16] CAROL 215, [¶ RONNING KAPSNER 2004 ND LaRocque, 689 N.W.2d SANDSTROM, JJ„ 386; O’Neill, 200, 8, and DALE 2000 V. concur. O’Neill v. ND 618 abuses discre- Quarne Quarne, membering that a court its 855; v.

619 N.W.2d misapplies misinterprets tion it ND thought grant- I have law. never 151, ND Logro, 2005 In 20] [¶ evidentiary hearing should be ing anof justices only four 322, case with N.W.2d discretion. matter of unfettered authored, I opinion that participating, Maring joined, advo- Justice and which reflection, I the de On believe [¶ 23] abuse of sought establish cated and of a law standard question novo review of review for the as the standard discretion § 14-09- N.D.C.C. applications under dissented, justice and Chief Court. One 06.6(4) intent brings us much closer to the explana- Justice VandeWalle —without certainly than closer legislation of the result, withholding tion—concurred suggest- discretion largely unfettered standard. The third new vote ed. the same in the have been result would either standard. under DALE SANDSTROM V. Hertz, In Lausen v. 2006 ND [¶21] 57; Dietz, 101, Dietz Justice, WALLE, Chief concur- VANDE Kourajian N.W.2d ring dissenting.

Kourajian, 2008 ND 744 N.W.2d I would adhere to the standard view noted the divided on the Court ap- majority of this Court of review said the result of review and standard Frueh, in Frueh v. plied under either standard. would be the same for the reasons set forth I Maring’s dissenting opinion. Justice 362, again opinion that wrote part dissent from therefore abuse of discretion would have established novo embraces a de majority opinion which While the result would as standard. determining whether standard of review in standard, the same under either the mo- or not an justices dissented from standard. custody have tion should for time, This Chief Justice VandeWalle— been granted. again explanation signed the without — time opinion authored. But this it was I Nevertheless, the abuse applying [¶ 26] specially, Maring Justice who concurred standard, I in the of discretion concur majority denying opinion status. Jus- A by majority opinion. result reached having cite as estab- Maring Lagro tice did parent’s style may endanger life custodial question lished of whether to “[t]he physical a child’s emotional and health grant hearing rests in the safety. allegations I believe the contained Frueh, trial discretion of the court.” 2008 a in in this case deserve the affidavits filed ¶26, 20, J., (Maring, ND 362 recognize I that “art- hearing. Although result). concurring But specially by lawyer ful” can turn pleading an adroit Lagro this was in statement error because issue, major a minor matter into a sanc- only plurality opinion was and not N.D.R.Civ.P., 11, under Rule tions majority opinion, and I believe the state- those imposed and should be available summary ment a fair I was not what evidentiary sup- which have no allegations Lagro. I had thought had written port. question largely ques- should WALLE, GERALD W. VANDE layer [¶ 27] tion of with a thin of discretion law cases, coming only a few re- C.J. play into

MARING, Justice, dissenting. under an abuse-of-discretion standard. A district court abuses its dis respectfully I dissent. The ma- [¶ 28] cretion if it misinterprets or misapplies the jority reverses the standard of our review 26, ¶ 8, law.” 2008 ND 745 N.W.2d 362 in Lagro Lagro, Court enunciated (citations omitted). Justice Sandstrom au 151, Frueh v. Lagro thored both and Frueh. Lagro, See Frueh, 2008 ND Ap- N.W.2d 362. Frueh, review, plying the new standard of 745 N.W.2d 362. I am of the majority next concludes that the father has opinion that our Court’s decision in Frueh established a facie case for modifica- on the standard of review for a denial tion of an and remands for the trial evidentiary hearing by a trial court court to on a evidentiary hearing. hold motion modify custody was disagree. precedent, within decisis, the rule of stare it Guskjolen [¶ 29] Our Court stated in opinion was an majority of a of our Court Guskjolen that clearly erroneous stan- directly on particular question. dard of applies review to our Court’s re- view of a trial court’s determination of a In there was a deliberate modify motion to a custody award. 391 unqualified agreement by a majority (N.D.1986). This is a of the Court on the standard of review. highly deferential standard of review. Un- ¶26, 8, (cita- See 2008 ND 745 N.W.2d 362 14-09-06.6(4), der N.D.C.C. party omitted). tions Our Court has addressed seeking custody modification must estab- the rule of stare stating: decisis lish a facie ease justifying a modifi- The rule of stare decisis is a rule of cation before even being entitled to an policy grounded on theory that when on a motion to a legal principle accepted and estab- custody. lished, rights may accrue under it and Lagro, our Court considered security certainty require that the the standard of review of a trial court’s principle recognized and followed deny decision to hearing on thereafter though even it later be found modify custody motion to and concluded to be not legally sound. To a certain the appropriate standard of review was an extent this is true. But the rule is not abuse of discretion. 2005 ND sacrosanct. Whether or holding not a N.W.2d 322. The decision of our Court in shall be adhered to or modified or over- Lagro, however, was participated ruled, question is a within the discretion only four members of the Court. Id. Two of the court under the circumstances of concurred, members one member con the case under consideration. result, curred in the and one dis member Bank, Otter Tail Power Co. v. Von 8 sented. Subsequent Id. Lagro, our 599, 497, (1942) N.W.2d 607 72 513 N.D. applied Court both an abuse-of-discretion Woodman, (citing 205, Hertz v. 218 U.S. 30 standard and de novo standard for its re 621, (1910)). S.Ct. 54 L.Ed. 1001 view of the denial an evidentiary of hear ¶¶ Hertz, ing 101, in Lausen v. 7- [¶ 33] We must “acknowledge the im- 8, 57, 714 N.W.2d Kourajian v. Kour portance decisis, of the rule of stare ¶ ajian, 8, 10, 744 274. N.W.2d grounded upon theory that when a However, in legal a clear ma- principle accepted rights may jority of our it, Court held: “We review the security accrue under certainty re- denial of an hearing on change quire the principle recognized be and fol- 620 C.R.C., request at the of 2001 this Court State Interest

lowed thereafter.” (Neumann, ¶ on Testifying 533 625 N.W.2d Bar Association. ND Judiciary J., concurring). legislation before the Senate Committee, Sherry Chair Mills Moore provides no opinion majority The explained object proposed abandoning why Court our analysis legislation: issue. There is no on this precedent our ard'trying 2167 to put there With SB we of whether analysis State; stability there is no in lives of chil- law of our more in the change object a review of other of a indicating dren who custo- analysis the trend dy dispute by slowing revolving or decisions courts’ law; no indication that and there is to the courthouse.... door are no is obsolete. There the standard custody, .... The decision about arguments made thoughtful compelling process and the attendant mak- rule of stare ignore for our Court ing very that decision are of their parties argued our Neither of decisis. painful, disruptive, nature and des- its standard of re- overrule should Court tabilizing .... only we overruled The reason view. justice is that the review our standard period SB of two Under Frueh Lagro and has decid- authored who years following a determi- his This decision can- change mind. toed something there is of a nation mora- objective of stare to further not be said family. custody- for the torium cer- decisis, provide uniformity, is to which changing process cannot be initiated law. If stability get we tainty, and specific and neces- except some court, will standard justice on the new sary situations. appears Our Court to be change again? Hearing on SB 2167 Senate before than a court law. men rather court of Committee, N.D. Judiciary Leg. 55th Lagro, ac Justice Sandstrom (Jan. 21, 1997). Sess. majority that a of the Court knowledged ¶ Quarne Quarne, ND 1999 a de stan established novo had previously deciding review when whether dard of an requiring is established 151, 13, ND evidentiary hearing. patterned Dakota its North affidavit (citing Hawley LaR procedure within two ND ocque, 2004 prior of a on Minne consideration Tank, 15, ¶ 46, Tank v. Task sota’s statute. Joint Force J., (Maring, dissenting)). He (June Law, Family Summary Report changed the standard should reasoned 1996). employs Minnesota abuse-of- of discretion: abuse reviewing discretion standard the de § 14- legislature enacted N.D.C.C. evidentiary hearing on change nial of child frequency 09-06.6 to of Weber, address custody. of In re 653 N.W.2d disputes. 1997 N.D. Laws custody Sess. 804, (Minn.Ct.App.2002); 809 Valentine 149, § 1. held: (Minn. ch. We Lutz, 868, v. 872 Smith, 1994); v. legislation was to see also Smith 508 purpose of 222, (Minn.Ct.App.1993); custody litigation. It is 226-27 repeat curtail Nice-Petersen, Family product of the 1995 Joint Nice-Petersen 310 (Minn.1981). 471, of Law Task Force formed order ¶¶ 44-46, requires 48, Our North Dakota statute 673 N.W.2d 622 (citing Minn. only a prima facie case but also (2002)). § Stat. 518.185 The purpose for provides opposing party may file the affidavit practice is to “discourage con affidavits, requires and it the court to tests temporary over custody prevent “deny the motion unless the court finds repeated and insubstantial motions for moving party has established a pri- modifications.” Uniform Marriage and Di ma facie case justifying modification.” 410, Comment, § vorce Act 9A U.L.A. 14-09-06.6(4) § N.D.C.C. (emphasis (Supp.2003). legislature Our has rig added). The word “finds” reflects a de- orously grounds limited the for modifica evidence, of gree weighing conflicting of tion of within and the word “justifying” reflects “to date of order. See N.D.C.C. ... just right.” show to be 14-09-06.6(5). § I continue to be of the Dictionary Random House the En- that, opinion in light of easily how a good (2d 1987); glish Language ed. lawyer can draft an affidavit to meet the see also Dictionary Black’s Law 882-83 standard, Tank facie I believe we (8th 2004). In ed. view of the statutory require must that the affidavit contain first language, and consistent with legis- hand knowledge; history, specificity detail; lative our review of the denial of cus- facts that a material and continu tody will be under an abuse-of-discretion ing change in the circumstances; child’s standard. Tank and Hawley super- and when endangerment is alleged, facts they seded to the extent established a de “significant show a degree danger” novo review of a an evidentiary denial of to establish endangerment to the emotion hearing. al health and development of the child. ¶¶ 11, Lagro, at 13-14. Our applied Court ¶ Mock, See 2004 ND the abuse-of-discretion standard of review J., 635 (Maring, dissenting); see also Kelly Lagro. Id. 14. We outlined our ¶¶ Kelly, 44-52, establishing standard for a prima facie J., (Maring, N.W.2d 38 concurring in the case and concluded the affidavits did not result). also Oliphant, See Robert E. Chil provide sufficient evidence to create a pri- dren in the Law Issues: Contributors Re ma facie case that the child’s living envi- defining a Statute Out Existence: may ronment with his father endanger his Minnesota’s View When A Custody physical or impair emotional health or his Held, Hearing Can Be Modification emotional development. Id. at 21. Our (2000) Wm. Mitchell L.Rev. 711 (explaining Court affirmed the trial court’s denial of that, since the facie burden is so ¶¶ hearing. id. at See low, lawyer drafting ability with minimal will be persuade able to a court grant In my dissents in Mock v. Mock hearing, and concluding Tank, I have contended that our stat- burden is inconsistent with the purpose of ute is patterned after the restrictive provi- the Minnesota statute and the Uniform Marriage sions of the Uniform and Divorce Act). Marriage Therefore, and Divorce Act and the Minnesota statute on affidavit for us to abandon the abuse-of-discretion procedure Mock, for modification. See standard of step review is another ¶¶ toward 27-28, 31, 673 N.W.2d 635 our failure to legislative adhere to the (citing the Marriage Uniform and Divorce purpose §Act of N.D.C.C. 9A U.L.A. 2 14-09-06.6. would (Supp.2003); Minn. Tank, (2002)); Stat. 518.185 continue to precedent adhere to our and her her sister her slaps she tells mom that standard abuse-of-discretion apply it, names, calls her her sister denies and review. sister; and her mom believes her her mom case, Britt Green present the In 37] [¶ sister, her dad and so does her so hates May in Lucy divorced wants; in gets January her sister what she physical was awarded Lucy Green woke in the middle up she August minor children. parties’ sitting stranger and saw in their night a motion to Britt Green filed mom, living up room so woke her who she motion, minor child. In his custody of the man, not know who let the man did but was a mate- claimed that there Britt Green sleep morning; there until her mom does since di- change in circumstances rial their and she does not lock house doors environ- “present vorce child’s because Oxford; in feel safe her dad locks the not health endangering her emotional ment is night. in home doors Scranton and is at impaired at risk emo- places her “is development” and the child tional The trial court concluded that prefer- expressed who has mature child facts not sufficient to infer the these were The mi- to reside with her father.” ence or development child’s emotional health twelve old at the time nor child was endangered by present were environ- parties’ on the motion. The decided, ment. The trial court based on in which signed child an affidavit minor affidavits, not evi- there was sufficient like to live with that she would she stated from it could infer the dence which mom’s father, Green; living she likes in her endangered child’s home emotional Dakota; Scranton, she likes the North impaired the child’s emotional health has because she more school Scranton development. is whether The issue in Scranton and friends and classmates that she does not like child’s statements that are not of- there are classes offered drinking, her mother that she is scared Oxford; she a horse named fered has when and worried about her mother she is not have a Scooter in Scranton and does home, that and does not she scared Oxford; it is easier to talk her horse feel safe because her mom does not lock dad; every day; goes mom to the bar her doors, and sad un- that she feels just buy mom stops her beer sometimes filthy comfortable mom calls when her her home; stays other bring times she names rise to the level of evidence that drinks; lot; mom drinks a the bar and her appeal would to our Court an drinking, her mom when her mom calls of a affirmance modification based on an filthy her names which make her feel sad endangers environment child’s uncomfortable; boy- her mom has emotional health. our Court affirm Would friend; five times her mom approximately a trial court’s modification of overnight at his house stayed leaving finding based on a court’s that these facts fifteen-year-old alone with her at home her establish the child’s emotional health is sister; scared mom she is when her does endangered? The trial court concluded home; she not come is scared and worried justify that this evidence does not such an drinking her mom is and driving affirmative conclusion: accident; her mom will in an and afraid no presented allega- father] has “[The and aunt her uncle used to live within a child physical tion of abuse or harm and spend mile and she used a lot of time there, they country; allegations regarding possible harm but have moved to the definitely health her sister is her mom’s to the child’s emotional or devel- favorite lot; child; opment her do to a level sufficient fight she and sister not rise exception prohibiting for an to the law modify custody

motion to than less passed.” prepared The trial court thor-

ough citing and accurate order our court’s

case law on the purpose provision

requiring court to determine whether

hearing should be even held within two

years following determination

and on the heightened movant’s burden of

proof. The majority really conclusion disapproval

based on its own of the moth- style

er’s choice of person- life its own

al values. That the standard the

legislature has promulgated. The trial court did not abuse its

discretion in denying hearing on the modify custody.

motion to Applying an standard,

abuse-of-discretion af- would

firm. MARY

[V41] MUEHLEN MARING

2009 ND 163 Dakota,

STATE of North Plaintiff Appellee

Jeffrey SCHMEETS, Defendant Appellant.

No. 20080225.

Supreme Court of North Dakota.

Sept.

Case Details

Case Name: Green v. Green

Court Name: North Dakota Supreme Court

Date Published: Sep 16, 2009

Citation: 772 N.W.2d 612

Docket Number: 20080284

Court Abbreviation: N.D.