Filed 2/17/12 by Clerk of Supreme Court
IN THE SUPREME COURT
STATE OF NORTH DAKOTA
Charles J. Frison, Plaintiff and Appellant
v.
Stacey Ohlhauser, Defendant and Appellee
No. 20110224
Appeal from the District Court of Emmons County, South Central Judicial District, the Honorable Bruce B. Haskell, Judge.
AFFIRMED.
Opinion of the Court by VandeWalle, Chief Justice.
Theresa L. Kellington, 521 E. Main Ave., Ste. 400, Bismarck, ND 58501, for plaintiff and appellant.
Donavin L. Grenz, P.O. Box 637, Linton, ND 58552-0637, for defendant and аppellee.
Frison v. Ohlhauser
No. 20110224
VandeWalle, Chief Justice.
[¶1] Charles J. Frison appealed from a district court order denying his motion to amend judgment. Frison sought to modify the residential responsibility of his minor child with Stacey Ohlhauser and the associated child suрport obligation. We affirm.
I.
[¶2] Frison and Ohlhauser, who were never married, had a child, W.H.O., in 1998. That year, Frison filed a complaint seeking visitation rights. In January 1999, the district court filed a judgment granting Ohlhauser residential responsibility of W.H.O., establishing a visitation schedule for Frison, and ordering Frison to pay child support. The judgment was amended in 1999, 2003, and 2004 to modify either the visitation schedule, Frison’s child support obligation, or both. In December 2010, Frison moved to amеnd judgment, seeking modification of residential responsibility of W.H.O. Frison claimed a material change in circumstances had occurred because Ohlhauser was not properly feeding W.H.O., and Ohlhauser refused to remove a cat from her home despite the fact that W.H.O. is severely allergic to cats. A heаring on the motion was held on June 28, 2011. At the beginning of the hearing, the district court informed the parties that the heаring would focus on the two issues raised in Frison’s brief. W.H.O., Frison, and Ohlhauser testified.
[¶3] On July 7, 2011, the district court issued an order denying Frison’s mоtion to amend judgment. The district court noted there was contradictory testimony regarding whether W.H.O. was being properly fed, and no independent evidence was presented to corroborate this assertion. The court also noted the cat had been removed from the home several months prior to the hearing, and Ohlhauser testified she cleaned her home to the best of her ability after the cat wаs removed. The district court found Frison failed to establish a material change in circumstances had оccurred.
II.
[¶4] Frison argues the district court erred in ruling that no material change in circumstances had oсcurred.
[¶5] Section 14-09-06.6(6), N.D.C.C., provides a two-step process in analyzing a motion to modify primary residentiаl responsibility:
The court may modify the primary residential responsibility after the two-year period follоwing the date of entry of an order establishing primary residential responsibility if the court finds:
a. On the basis of facts that have arisen since the prior order or which were unknown to the court at the time of the priоr order, a material change has occurred in the circumstances of the child or the parties; and
b. The modification is necessary to serve the best interest of the child.
The party seeking to modify custody has the burden of proving a material change in circumstances has occurred and modification is necessary to serve the child’s best interests.
Siewert v. Siewert
,
[¶6] “A material change in circumstances is an important new fact that was not known at the time of the prior custody decree; however, not every change will be sufficient to warrant a change of custody.”
Siewert
,
[¶7] A mature child’s reasonable preference tо live with a particular parent may constitute a material change in circumstances.
Dietz v. Dietz
,
[¶8] The distriсt court found Frison failed to carry his burden to show a material change in circumstances had occurred because the testimony regarding whether W.H.O. was being properly fed was contradictory and lacked independent corroboration, all of the witnesses testified the cat had been gone for several months, and Ohlhauser testified she cleaned her residence to the best of her ability. We do not reweigh the evidence or reassess the credibility of witnesses on appeal.
Kienzle
,
III.
[¶9] We affirm the district court order.
[¶10] Gerald W. VandeWalle, C.J.
Dale V. Sandstrom
Daniel J. Crothers
Mary Muehlen Maring
Carol Ronning Kapsner