[¶ 1] Appellee, Keith Hanson, and Appellant, Jennifer Engels, formerly known as Jennifer Hanson, were married on October 18, 1997. The couple have two children, ages four and five. During the marriage, the couple and their children resided on a farm approximately 14 miles east of Sheyenne, North Dakota. Keith was employed as a farmer in his family’s farming operation, while Jennifer was a stay-at-home mother.
[¶ 2] In August 2000, Keith began divorce and child custody proceedings. The parties stipulated to interim shared custody of the children. The custody hearing was held on June 5 and 7, 2001, with both parties requesting custody of the children. At the time of the hearing, Keith was still residing in the family farmhouse and employed as a farmer. Jennifer was residing in an apartment in New Rockford, North Dakota. She was employed by Painet Digital Stock working regular business hours. In its Memorandum Opinion, issued on December 3, 2001, and its Findings of Fact, Conclusions of Law and Order for Judgment, issued on February 26, 2002, the trial court evaluated what was in the children’s best interests. To do so, it
[¶ 3] On March 11, 2002, Jennifer made a motion to change custody pursuant to N.D.R.Civ.P. 59(j) and a motion to modify the judgment under N.D.C.C. § 14-09-06.6. She contended custody should be changed to her because the children’s living environment with Keith could endanger their emotional health and could impair their emotional development. Keith filed a response to the motions, but did not file any opposing affidavits. The trial court granted Jennifer an evidentiary hearing, which was held on April 16, 2002. At the time of the hearing, Keith was still living in the family farmhouse near Sheyenne, but he had given up his farming operation and, instead, was employed as a mechanic in Lakota, North Dakota. Jennifer had moved into a three-bedroom home in New Rockford and was still employed at Painet Digital Stock. At the evidentiary hearing, Jennifer argued that because Keith had switched his employment from Sheyenne to Lakota, the children were having to get up earlier each morning to travel and, therefore, they were sleep-deprived and were getting sick more often. Also, she claimed that since the initial custody hearing, there had been two incidents of domestic violence. Jennifer argued that since the initial hearing, the children had exhibited a number of behaviors and symptoms which showed the custodial arrangement was not emotionally healthy for them. On May 8, 2002, the trial court entered an order denying Jennifer’s motions, finding there was no showing that the environment of the children endangered or impaired their health or development.
[¶ 4] Jennifer appeals from the trial court’s order denying her motions to modify the custodial arrangement. She claims that in denying her motions, the trial court did not fully consider all of the evidence, namely, the fact that Keith had changed occupations since the custody determination and Jennifer’s allegations of domestic violence.
I
[¶ 5] Rule 59(j), N.D.R.Civ.P., allows a party to file a motion to alter or amend a judgment within 15 days after notice of entry of the judgment. A trial court’s decision on a Rule 59(j) motion will not be reversed absent an abuse of discretion.
See Dinger v. Strata Corp.,
Unlike a N.D.R.Civ.P. 59(b) motion for a new trial, a N.D.R.Civ.P. 59(j) motion to alter or amend a judgment does not usually request a reexamination of issues of fact. Rather, a motion to alter or amend “may be used to ask the court to reconsider its judgment and correct errors of law.”
II
[¶ 6] Section 14-09-06.6(1)-(5), N.D.C.C., “limits the permissible bases for custody modifications brought or made within two years after a custody determination.”
State ex rel. D.D. v. G.K.,
The court may not modify a prior custody order within the two-year period following the date of entry of an order establishing custody unless the court finds the modification is necessary to serve the best interest of the child and:
a. The persistent and willful denial or interference with visitation;
b. The child’s present environment may endanger the child’s physical or emotional health or impair the child’s emotional development; or
c. The primary physical care of the child has changed to the other parent for longer than six months.
[¶ 7] Jennifer brought her motion for modification less than one month after the original custody order was entered; therefore, N.D.C.C. § 14-09-06.6 applies. Jennifer asserted that under subsection (5)(b), the children’s present environment may endanger their physical or emotional health or impair their emotional development.
[¶ 8] A trial court’s decision to modify custody is a finding of fact which will not be overturned unless it is clearly erroneous.
See In re K.M.G.,
[¶ 9] In its order denying Jennifer’s motion to amend the custody judgment, the trial court applied N.D.C.C. § 14-09-06.6(5) and found:
The parties have engaged in two physical altercations, at least one of which took place after the Court issued its Memorandum Opinion and before the entry of judgment. The Court findsthat both parties took physical action against each other and are both at fault in these altercations. The Court also finds that there has been no showing that the present environment of the children endangers or impairs their health or development.
[¶ 10] There is no indication that the trial court’s decision was clearly erroneous. At the evidentiary hearing, the court had an opportunity to hear from both parties and several witnesses. As to the children’s emotional well-being, Jennifer and her witnesses, who included her mother, her grandmother, and her sister, testified that the five-year-old had “regressed” and had become more “frustrated” and “aggressive” since Keith was awarded custody. Likewise, they testified that the four-year-old had become more emotional and had wet her pants three times since the initial custody decision. Keith and his witness, his mother, testified that they had not seen any major differences in the temperaments of the children and that the children were reacting as children do when dealing with the divorce of their parents. As to the incidents of domestic violence, both parties admitted the fights took place, but testified the other party was the aggressor. Likewise, both Keith and Jennifer claimed they were physically injured by the other during the fights.
[¶ 11] A trial court’s “opportunity to observe the witnesses and determine credibility should be given great deference.”
K.M.G.,
Ill
[¶ 12] Jennifer moved to strike portions of Keith’s brief on appeal. She asserts Keith included facts in his appellate brief that were not a part of the record. She requests costs be awarded for the expense of bringing the motion to strike those statements from the brief.
[¶ 13] Under N.D.RApp.P. 28(e), “[b]riefs must contain references to the page of the appendix where the part of the record relied on appears.... ” In his response to the motion to strike, Keith’s attorney agreed that the statements in question were facts that were not in the record. Therefore, a violation of Rule 28(e) has occurred.
See Hurt v. Freeland,
[¶ 14] Rule 13, N.D.RApp.P., provides: “The supreme court may take any appropriate action against any person failing to perform an act required by the rules or required by court order.” This rule is used as an enforcement tool to encourage compliance with the North Dakota Rules of Appellate Procedure.
See City of Fargo v. Wonder,
[¶ 16] The trial court’s order denying the motions to modify custody is affirmed.