Schurmann v. SchurmannSchurmann v. Schurmann
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- Before:
- Sandstrom
[¶ 1] Patricia Schurmann, now known as Patricia Heidt, appeals after the district court modified parenting time and child support. She argues the district court failed to properly weigh evidence of domestic violence in increasing Ralf Schur-mann’s parenting time. She also argues the court should’ not have reduced child support. We affirm the district court’s order regarding parenting time, and reverse and remand the order regarding child support.
I
[¶ 2] In January 2013, Schurmann and Heidt were divorced. The couple has three children. The parties stipulated to the terms of the divorce, and the district court awarded primary residential responsibility and child support to Heidt and parenting time to Schurmann. Under the original divorce judgment, Schurmann was allowed to spénd time with the children one time per month for up to seven days in Grand Forks. He was also allowed to spend time with the children two times per year in Arizona, where he resided. His parenting time was to increase incrementally as the children grew older. During his parenting time in Arizona, Heidt was entitled to daily visitation. The judgment required both parents to accompany the children on all flights between North Dakota and Arizona until the youngest child reached the age of 7. This required Schur-mann to fly to North Dakota to meet
[¶ 3] After the divorce, Schumann moved between cities but continued to reside in Arizona, Heidt and the children moved from Grand Forks to Grafton. Both parties remarried following the divorce.
[¶4] In January 2015, Schumann moved to modify his parenting time and child support obligation. He said there had been a material change in circumstances warranting modification. In a supporting affidavit, he alleged the original parenting plan was impractical, given the parties’ different locations; he was being alienated from the children in multiple ways; Heidt interfered during his parenting time; and the children were not being adequately supervised and cared for while in her home.
[¶5] The district court, finding there had been a material change in circumstances warranting modification, increased Schurmann’s parenting. time and decreased his child support obligation. Heidt appealed.
[¶ 6] The district court had jurisdiction under
II
[¶ 7] On appeal, Heidt! argues the district court erred by increasing Schur-mann’s parenting time.
[¶ 8] A district court’s decision regarding parenting time is a finding of fact and is subject to the clearly erroneous standard of review.
Capes v. Capes,
2015 ND 254, ¶ 6, 870 N.W.2d 448. “A finding of fact is clearly erroneous if it is induced by an erroneous view of the law, if no evidence exists to support it, or if, upon review of the entire record, this Court is left with a definite and firm conviction a mistake has been made.”
Id.
After an initial award of primary residential -responsibility, awards of parenting time are governed by
[¶ 9] Heidt argues the” district court failed to properly weigh evidence of domestic violence in increasing Schur-mann’s parenting time. She argues the original parenting plan included restrictions because of his propensity to act violently, and the district court misapplied the law by expanding his parenting time without clear and convincing evidence that the domestic violence presumption had been rebutted or that increasing his parenting time was in the children’s best interests.
[¶ 10] Heidt relies on this Court’s reasoning in
Berg v. Berg,
2000 ND 36, ¶ 8,
[¶ 11] Under the prior law, a finding of domestic violence triggered a presumption that only supervised visitation should be allowed unless there was á showing by clear and convincing evidence that unsupervised visitation would not endanger the. child’s physical or emotional health.
Berg,
2000 ND 36, ¶ 8, 606 N.W.2d 895. In 2009, the law was amended and subsection three was removed, thereby also removing the domestic violence presumption as applied-to visitation. The current law, as .amended, simply states, the court “shall grant such rights of parenting time as will enable the child to maintain a parent-child relationship that will be beneficial to the child, unless the court finds, after a hearing, that such rights of parenting time are likely to endanger the child’s physical pr emotional health.”
[¶ 12] Here Schurmann was not seeking residential responsibility of his childreh but -rather was seeking a modification of his current parenting time. “Visitation should be restricted only upon a showing by a preponderance of the evidence that unrestricted visitation is likely to endanger the child’s physical or emotional health.” Paulson v. Paulson, 2005 ND 72, ¶ 21, 694 N.W.2d 681 (citing Wigginton v. Wigginton, 2005 ND 31, ¶ 11, 692 N.W.2d 108). After the initial determination of residential responsibility, the standard is similar to that for a modification of residential responsibility. Simburger, 2005 ND 139, ¶ 13, 701 N.W.2d 880. “The moving party bears the burden of establishing that a‘significant change of circumstances has occurred since the prior visitation order and that it is in the best interests of the child to modify the order.” Id. A -material change of circumstances means important new facts that were unknown at the time of a prior parenting time order. Capes v. Capes, 2015 ND 254, ¶ 7, 870 N.W.2d 448.
.[¶ 13] In this ease,, the district court found a material change in circumstances had occurred. Specifically, the court found both parties had remarried since the initial divorce and Heidt had moved with the children from Grand Forks to Grafton. The court also noted both
Both parties recognize limitations in the current parenting time schedules, although for different reasons. The court finds that the current practices are not working for either of them, leaving the children with less than optimal time with Ralf. It also exposes the children to controversies between the parties about parenting time. In addition, the Judgment indicates that Ralf is -to exercise monthly parenting time in Grand Forks, ND. Since neither of the parties lives in Grand Forks, ND there is no logical reason why Ralf should be required to exercise parenting time in Grand Forks, ND. Accordingly, the court finds there has been a material change in circumstances justifying a modification of parenting time. That modification would be beneficial to the children, and in the children’s best interests so that they maintain a healthy relationship with their father, Ralf. ’
On the basis of these findings, the district court properly found a material change in circumstances justifying modification in this case.
[¶ 14] The district court also considered .Schumann‘s history of domestic violence in modifying parenting time. The court found he had committed domestic violence against Heidt during the parties’ marriage. The court found that much of this violence was attributed to his high stress level at the time and his consumption of alcohol; The court also considered Heidt’s testimony that he did not handle young children well and’ got along better with older children. The court found both parties express care and affection for the children, and. there was no evidence presented that Schumann consumes alcohol to, excess, or is violent with the children while exercising his parenting time. On the basis of these findings, the district court held:
There is no evidence that the children have suffered either physical or emotional harm as a result, of unsupervised parenting time..... It would be beneficial for the children to maintain a relationship with their father and it is in the children’s best interests to continue Ralf s unsupervised parenting time with them.
There was no evidence that, since the parties’ divorce, there has been any threat by Ralf to the children when he exercises his parenting time, either through anger or brandishing a gun.... [T]here is no rational’ basis that would require Patricia have visitation with the parties’ children during Ralf s parenting time, except via Skype or telephone, or unless Ralf otherwise agrees to it.
The district court then increased Schur-mann’s parenting time, holding:
It would be beneficial for the children, and is in the children’s best interests to have continued extended periods of time with Ralf. The evidence does not support the- need’ for supervised parenting time_
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In establishing parenting time, the court also considers the children’s emotional and physical maturation and development. This supports a graduated period of extended summer parenting time. It would be beneficial for the children if the period for Ralf s summer parenting time is set for a greater time period than currently allowed, to ensure that they do develop and maintain a parent/child relationship. ■
On the basis of these findings, the district court complied with the requirements of
111
[¶ 15] Heidt also argues the district court erred by. not giving appropriate weight to the recommendations of a child psychologist who advised the Schumanns at the time of their stipulation. She argues the district court’s failure to give appropriate weight to the recommendations effectively penalized her, for attempting to resolve the initial litigation by agreement, rather than utilizing the psychologist as an expert witness at trial.
[¶ 16] While both parties were guided by the child psychologist’s, suggestions when entering into the stipulation, the psychologist’s suggestions are not automatically pertinent in the present day. In its order, the, district court recognized the children .were seeing a child psychologist at the time of the divorce and some of the psychologist’s recommendations were incorporated into the parties’ stipulation. The district court also recognized, however, that no expert testimony was ever provided regarding the recommendations. Nothing would require the district court to rely on them. As detailed above, the district court properly found material changes in circumstances had occurred, warranting modification of the parenting plan. These material changes were not present when the psychologist made recommendations to the Schumanns, and any recommendations may very well be different in the present circumstances. The district court did not err in its consideration of the psychologist’s recommendations.
IV
[¶ 17] Heidt also argues the district court erred in its child support calculation. She argues the court improperly relied on Schumann‘s tax returns and failed to account for his experience level in calculating‘his income. ”
[¶ 18] “Child support determinations involve questions of law which are subject to the de novo standard of review, findings of fact which are subject to the clearly erroneous standard of review, and may, in some limited areas, be matters of discretion subject to the abuse of discretion standard of review.”
Buchholz v. Buchholz,
1999 ND 36, ¶ 11, 590 N.W.2d 215. Under
[¶ 19] Under the child support guidelines:
If the obligor fails, upon reasonable request made in any proceeding to review a child support obligation, to furnish reliable information concerning the obli-gor’s gross income from earnings, and if that information cannot be reasonably obtained from sources other than the obligor, income must be imputed based on the greatest of:
a. Subdivisions a through c of subsection 3; or
b. The obligor’s net‘income,’ at the time the child support order was entered or last modified, increased at the rate of ten percent per year.
[¶ 20] . Here the court found Schurmann’s monthly child support obligation should be reduced from $1,600 to $1,144. In making this finding, the court considered his tax returns and found they were incomplete or evasive and by theni-selvés did not appear to be reliable. “[T]his Court cautions against practices in which obligors intentionally distort income in order to reduce child support obligations and trial courts should not allow self-employed individuals to stray too far in accepting inaccurate tax returns as the basis for computing child support.” Torgerson v. Torgerson, 2003 ND 150, ¶ 20, 669 N.W.2d 98. The district court appropriately noted .that the burden was on Schurmann to provide appropriate and re-: liable, information to support, a modification of child support. Devine v. Hennessee, 2014 ND 122, ¶ 11, 848 N.W.2d 679. Despite the court’s finding Schurmann’s evidence to be inaccurate, incomplete, and evasive, it .still relied on this information to decrease his support obligation. Because the court found that Schurmanris income information ■ was unreliable, he failed to meet his burden to modify support. To hold otherwise would give Schurmann the benefit of .using incomplete, inaccurate,’ and evasive information to reduce a child support amount to which he himself had originally stipulated.
[¶21] The district court also included as in-kind income a gift received, citing
Cook v. Eggers,
1999 ND 97, 593 N.W.2d 781. The court failed to recognize that the current guidelines — unlike the guidelines at the time of
Cook
-limit in-kind income to that received “from employment or income-producing activity,” precluding the gift here.
See
[¶ 22] Because the district court relied on unreliable information to calculate child support in this case, the court failed to comply with the guidelines. We conclude the court’s child support calculation was clearly erroneous. We reverse and remand for recalculation of child support, and the district court may take additional evidence to do so.
V
[¶ 23] We affirm the district court’s order regarding parenting time, concluding the court did not err in modifying Schur-mann’s parenting time. We reverse the district court order regarding child support and remand for recalculation.
[¶ 24] GERALD W. VANDE WALLE, C.J., DANIEL J. CROTHERS, LISA FAIR McEVERS and CAROL RONNING KAPSNER, JJ„ concur.