Krump-Wootton v. Krump

935 N.W.2d 534

Becky Jo KRUMP-WOOTTON, f/k/a Becky Jo Krump, Plaintiff, Appellant, and Cross-Appellee

v. Daniel Paul KRUMP, Defendant, Appellee, and Cross-AppellantandState of North Dakota, Statutory Real Party in Interest

No. 20190089

Supreme Court of North Dakota.

Filed November 20, 2019

Rehearing Denied December 12, 2019

William Woodworth, Bismarck, N.D., for plaintiff, appellant, and cross-appellee.

Leah M. Warner, Fargo, N.D., for defendant, appellee, and cross-appellant.

Jensen, Justice.

[¶1] Becky Jo Krump-Wootton [Becky Krump-Wootton], appeals from a district court order denying her request to change the school location for the parties' children and denying her request to modify the parties' parenting time. Daniel Paul Krump [Daniel Krump] cross-appeals the denial of his request for modification of primary responsibility. We affirm.

I

[¶2] The parties were divorced in 2012. Becky Krump-Wootton was awarded primary residential responsibility of the parties' two children and Daniel Krump was allocated parenting time with the children. The judgment requires the parties to agree on the children’s education. The children have attended school in Hankinson, North Dakota.

[¶3] Becky Krump-Wootton has remarried and her husband lives in Lisbon, North Dakota, about 65 miles from Hankinson. Believing Becky Krump-Wootton would remove the children from school in Hankinson and enroll them in school in Lisbon, Daniel Krump filed a motion seeking to enforce the provision of the judgment requiring the parties to agree on the children’s education to prevent Becky Krump-Wootton from enrolling the children in Lisbon. Daniel Krump also sought modification of primary residential responsibility.

Becky Krump-Wootton opposed the modification of primary residential responsibility and filed a motion seeking to modify Daniel Krump’s parenting time to accommodate enrolling the children in school in Lisbon.

[¶4] The court found a prima facie case for modification of primary residential responsibility as required by N.D.C.C. § 14-09-06.6 and scheduled a combined hearing for resolution of all of the pending motions. At the beginning of the hearing, Becky Krump-Wootton requested the court approve the enrollment of the children in school in Lisbon.

[¶5] Following the evidentiary hearing, the court issued its findings, conclusions of law, and order denying all of the pending motions. Daniel Krump moved to amend the findings as follows: 1) removing references to Daniel Krump’s motion to modify primary residential responsibility as an "alternative" request for relief to the children staying in school in Hankinson; 2) finding a significant or material change in circumstances had occurred notwithstanding the children’s continued attendance in the Hankinson Public School; 3) finding it is in the children’s best interests for Daniel Krump to be awarded primary residential responsibility of the children; and 4) to specifically state that the children shall continue to attend the Hankinson Public School. The court granted Daniel Krump’s motion to amend the findings with the exception of it being in the best interests of the children to modify primary residential responsibility.

II

[¶6] Daniel Krump filed a motion seeking to dismiss Becky Krump-Wootton’s appeal asserting she failed to comply with several of our rules of appellate procedure. See N.D.R.App.P. 3(a). In the alternative to dismissal, Daniel Krump seeks a recovery of attorney fees. See N.D.R.App.P. 13.

[¶7] Failure to adhere to our rules of appellate procedure can result in the dismissal of an appeal. N.D.R.App.P. 3(a)(2). While dismissal is permissible, this Court has been reluctant to dismiss an appeal and generally desires to reach the merits of a case. Latendresse v. Latendresse , 283 N.W.2d 70, 71 (N.D. 1979). "Whether to administer sanctions under N.D.R.App.P. 13 for noncompliance with the Rules of Appellate Procedure is discretionary with this Court." Silbernagel v. Silbernagel , 2007 ND 124, ¶ 21, 736 N.W.2d 441.

[¶8] Although we agree with Daniel Krump regarding Becky Krump-Wootton’s failure to adhere to our rules of appellate procedure, Becky Krump-Wootton’s issues on appeal significantly overlap with the issues raised by Daniel Krump in his cross-appeal. The significant overlap between the parties' issues reduces the justification for dismissal of the appeal because Daniel Krump would have likely filed substantially the same materials and engaged in similar briefing regardless of Becky Krump-Wootton’s failure to adhere to our rules. Under these circumstances we decline to dismiss Becky Krump-Wootton’s appeal and decline to exercise our discretion to award Daniel Krump a recovery of attorney fees.

III

[¶9] The district court’s order considered and analyzed collectively Becky Krump-Wootton’s motion to modify Daniel Krump’s parenting time, Becky Krump-Wootton’s oral request to allow the children to attend school in Lisbon, Daniel Krump’s motion to modify primary residential responsibility, and Daniel Krump’s motion to enforce the education provision of the parties' judgment to require the children to attend school in Hankinson. Both parties challenge the factual findings of the district court.

[¶10] "Finding of fact, whether based on oral or documentary evidence, shall not be set aside unless clearly erroneous, and due regard shall be given to the opportunity of the trial court to judge the credibility of witnesses." N.D.R.Civ.P. 52(a)(6). We have recognized the following regarding our review of a motion to modify parenting time:

A district court’s decision resolving a motion to modify parenting time is a finding of fact, subject to the clearly erroneous standard of review. Harvey v. Harvey , 2016 ND 251, ¶ 4, 888 N.W.2d 543 ; Schurmann v. Schurmann , 2016 ND 69, ¶ 8, 877 N.W.2d 20. "[A] district court must adequately explain the evidentiary and legal basis for its decision, allowing the parties and this Court to understand the decision." Curtiss v. Curtiss , 2016 ND 197, ¶ 13, 886 N.W.2d 565 (quoting Estate of Nelson , 2015 ND 122, ¶ 13, 863 N.W.2d 521 ). "The court’s findings are sufficient if they afford a clear understanding of the court’s decision and assist this Court in conducting its review." Harvey , at ¶ 4 (citing Topolski v. Topolski , 2014 ND 68, ¶ 7, 844 N.W.2d 875 ).

Rath v. Rath , 2018 ND 98, ¶ 7, 909 N.W.2d 666, reh'g denied. Similarly, we have recognized the following regarding our review of a motion to modify primary residential responsibility:

The district court’s ultimate decision whether to modify primary residential responsibility is a finding of fact, which will not be reversed on appeal unless it is clearly erroneous. Haag v. Haag , 2016 ND 34, ¶ 7, 875 N.W.2d 539. A finding of fact is clearly erroneous if there is no evidence to support it, if it is induced by an erroneous view of the law, or if we are convinced, on the basis of the entire record, that a mistake has been made. Id. "Under the clearly erroneous standard, we do not reweigh the evidence nor reassess the credibility of witnesses, and we will not retry a [residential responsibility] case or substitute our judgment for a district court’s ... decision merely because we might have reached a different result." Mowan v. Berg , 2015 ND 95, ¶ 5, 862 N.W.2d 523 (quoting Wolt v. Wolt , 2010 ND 26, ¶ 7, 778 N.W.2d 786 ).

Valeu v. Strube , 2018 ND 30, ¶ 8, 905 N.W.2d 728.

[¶11] The district court considered the motions collectively, and issued extensive findings pertaining to all of the motions. After recognizing it was not required to apply the four Stout - Hawkinson factors to consideration of moves within the state, the district court used those factors for guidance in determining what would be in the children’s best interests. See Stout v. Stout , 1997 ND 61, ¶ 33, 560 N.W.2d 903 (outlining the factors applying to consideration of an out-of-state move); Hawkinson v. Hawkinson , 1999 ND 58, ¶ 9, 591 N.W.2d 144 (modifying the factors applying to consideration of out-of-state moves). We agree with the district court, under the circumstances of this case, the Stout - Hawkinson factors provide appropriate guidance for consideration of the pending motions.

[¶12] In reviewing the Stout - Hawkinson factors, the district court did not find the prospective advantages of the move would improve the children’s quality of life. The district court did not find Becky Krump-Wootton’s proposed move was for purpose of defeating or deterring Daniel Krump’s direct parenting time and found Daniel Krump’s opposition to the move to be "valid and not motivated by ill will." The district court also found "the move to Lisbon would have a significant negative impact on the girls' relationship with Daniel Krump that cannot be maintained through longer but less frequent parenting time." These findings reflect consideration of the four Stout - Hawkinson factors.

[¶13] Having considered the Stout - Hawkinson factors, the district court then considered the best interest factors as provided by N.D.C.C. § 14-09-06.2 to determine what would be in the best interests of the children. The factors as provided in N.D.C.C. § 14-09-06.2 are as follows:

a. The love, affection, and other emotional ties existing between the parents and child and the ability of each parent to provide the child with nurture, love, affection, and guidance.

b. The ability of each parent to assure that the child receives adequate food, clothing, shelter, medical care, and a safe environment.

c. The child’s developmental needs and the ability of each parent to meet those needs, both in the present and in the future.

d. The sufficiency and stability of each parent’s home environment, the impact of extended family, the length of time the child has lived in each parent’s home, and the desirability of maintaining continuity in the child’s home and community.

e. The willingness and ability of each parent to facilitate and encourage a close and continuing relationship between the other

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