McCay v. McCay

1

2024 ND 130

Amber Elizabeth McCay, Plaintiff and Appellee v. David William McCay, Defendant and Appellant and State of North Dakota, Statutory Real Party in Interest

No. 20230360

Supreme Court of North Dakota

July 5, 2024

Appeal from the District Court of Cass County, East Central Judicial District, the Honorable Constance L. Cleveland, Judge.

Christopher E. Rausch, Bismarck, ND, for plaintiff and appellee.

Jennifer M. Gooss, Beulah, ND, for defendant and appellant.

OPINION

Jensen, Chief Justice.

[¶1] David McCay appeals from an amended judgment modifying primary residential responsibility and granting Amber McCay's request to relocate. David McCay challenges the court's findings on a material change in circumstances best interest factors (a), (b), (c), and (d), the findings supporting relocation, and the findings related to the new parenting schedule. Amber McCay requests an award of attorney's fees, asserting the appeal is frivolous. We conclude the findings supporting the material change in circumstances, best interest factors (a), (b), (c), and (d), relocation, and the modified parenting schedule are not clearly erroneous. We affirm the amended judgment of the district court.

I

[¶2] David McCay and Amber McCay were married in 2016 and have one minor child. The parties divorced in 2018, and the district court awarded David McCay primary residential responsibility.

[¶3] On May 10, 2019, Amber McCay moved for an ex parte interim order and filed a supporting affidavit and exhibits. She alleged David McCay had a long history of using alcohol, he was convicted of a second DUI, and he was charged with child neglect for being intoxicated and unconscious outside his apartment door. The district court denied Amber McCay's motion because David McCay had not yet been convicted and was "innocent until proven guilty." David McCay ultimately entered an Alford plea to a charge of reckless endangerment.

[¶4] On April 14, 2023, Amber McCay moved to modify primary residential responsibility of the child and requested a change in residence of the child from North Dakota to Nevada. The district court found Amber McCay established a prima facie case justifying modification and ordered an evidentiary hearing be held. Following the evidentiary hearing, the district court granted Amber McCay's motion, awarding her primary residential responsibility and permission to relocate the child to Nevada. The court entered an amended judgment and parenting plan.

II

[¶5] When a motion to modify primary residential responsibility is brought more than two years after the date of entry of an order establishing primary residential responsibility, modification is appropriate only if the district court finds the following:

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 prior 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 interests of the child.

N.D.C.C. § 14-09-06.6(6). A district court's decision to grant or deny a motion for a change of residential responsibility is subject to a clearly erroneous standard of review. Krueger v. Tran, 2012 ND 227, ¶ 11, 822 N.W.2d 44 (citing Stanhope v. Phillips-Stanhope, 2008 ND 61, ¶ 7, 747 N.W.2d 79). "A finding is clearly erroneous if it is induced by an erroneous view of the law, there is no evidence to support it, or we are convinced, based on the entire record, that a mistake has been made." Krueger, at ¶ 11 (citing Stanhope, at ¶ 7).

A

[¶6] David McCay argues the district court erred in finding a material change existed. "A material change in circumstances occurs when new facts are presented that were unknown to the moving party at the time the decree was entered." Mayo v. Mayo, 2000 ND 204, ¶ 16, 619 N.W.2d 631. A material change of circumstances can occur if a child's present environment may endanger the child's physical or emotional health or impair the child's emotional development. Selzler v. Selzler, 2001 ND 138, ¶ 21, 631 N.W.2d 564.

[¶7] David McCay contends the district court impermissibly relied on his alcohol usage and the events used as a basis for Amber McCay's 2019 ex parte motion, arguing these were known facts when the motion to modify was brought. While the alcohol issues were known before the initial custody determination, the court focused on the subsequent impact on the child. We do not need to decide if the ex parte order triggered the exclusion of evidence, because the record contains clear evidence of new facts that were not known at the time of the prior custody decree or when the ex parte motion was filed, supporting the finding of a material change in circumstances has occurred.

[¶8] The record reflects that subsequent to the initial custody determination and denial of the ex parte motion, David McCay has been diagnosed with alcohol use disorder and cannabis use disorder, failed to complete treatment, and had been charged with his fourth DUI offense. The district court found that David McCay has demonstrated a complete disregard of, or inability to comply with, court orders to address his chemical usage. The record reveals that subsequent to both the decree and the ex parte application, David McCay was convicted of endangering the child. Additional evidence of matters subsequent to the original decree and the ex parte order included the following: David McCay was repeatedly unemployed, had moved, and had been repeatedly incarcerated, and that others have served as the child's primary caregiver.

[¶9] In Ludwig v. Burchill, 514 N.W.2d 674 (N.D. 1994), we affirmed a material change in circumstances existed when the parent with primary residential responsibility failed to attend AA as ordered by the trial court, continued drinking, was convicted of a second DUI, and abdicated his parenting responsibilities to his parents. Id. at 676. We have also recognized that a parent's serious problem with drugs and alcohol constitutes a material change in circumstances. Haag v. Haag, 2016 ND 34, ¶ 15, 875 N.W.2d 539.

[¶10] The trial court was in the best position to determine whether these circumstances existed and whether they constituted a material change in circumstances under N.D.C.C. § 14-09-06.6(6). We conclude there is evidence in the record to support the court's findings of a material change in circumstances, the court did not misapply the law, and we are not convinced a mistake has been made. On this record, the court's finding that David McCay's conduct constituted a significant change of circumstances that required a change in custody was not clearly erroneous.

B

[¶11] In addition to a material change in circumstances, there must also be a general decline in the condition of the child or that a change has adversely affected the child so that a change is necessary or compels a change for the best interest of the child. Kunz v. Slappy, 2021 ND 186, ¶ 28, 965 N.W.2d 408. David McCay argues there was no evidence to support a finding that the environment he created was an environment that endangered the child.

[¶12] In finding an adverse effect on the child, the district court noted the following:

Since the Judgment has been entered there has been no stability while the child has been in the Defendant's care. The Defendant has been repeatedly unemployed, he has moved, he has been convicted of endangering this child, he has been repeatedly incarcerated and he has used the custody of the child to avoid jail time, while improperly characterizing and disparaging the child's mother as an absent and uncaring parent. That is a reflection of his position in this case, and what he believes to be true, and that is dangerous to the child as well. Holding a position that the other parent is uncaring or absent in light of the facts that have been established here is something that the Court does not think the Defendant is able to protect the child from in any sense of the word, and that adversely affects the child. It is the parent's responsibility, despite the failings of the person they chose to have a child with, to try to protect the child of course, but also to foster whatever safe relationship can be fostered.

[¶13] The court also found that the child was parentified and felt it was her responsibility to take care of her intoxicated father. The court further found that David McCay has no insight on how his alcohol use impacts the child.

[¶14] There is evidence to support the trial court's determination that the changes in circumstances so adversely affected the child that it required a change in custody to foster the child's best interests, the court did not misapply the law, and we are not left with a definite and firm conviction that the trial court made a mistake. The court's finding that the material change in circumstances adversely effects the child is not clearly erroneous.

III

[¶15] David McCay argues the district court erred in weighing best interest factors (a), (b), (c), and (d). The court found those factors favored Amber McCay.

[¶16] "A district court's primary residential responsibility decision is a finding of fact that we analyze under the clearly erroneous standard of review." Kershaw v. Finnson, 2022 ND 165, ¶ 9, 980 N.W.2d 40. "A district court's ruling on decision making is also a finding of fact, subject to the clearly erroneous standard." Taylor v. Taylor, 2022 ND 39, ¶ 20, 970 N.W.2d 209.

[¶17] "A finding of fact is clearly erroneous if it is induced by an erroneous view of the law, if no evidence supports it or if this Court, on the entire record, is left with a definite and firm conviction a mistake has been made." Kershaw, 2022 ND 165, ¶ 9 (quoting Vetter v. Vetter, 2020...