Stoddard v. Singer

954 N.W.2d 696

Daniel Joseph STODDARD, Jr., Plaintiff and Appellant

v. Christina Jean SINGER, f/k/a Christina Jean Stoddard f/k/a Christina Jean Ringering, Defendant and AppelleeandState of North Dakota, Statutory Real Party in Interest

No. 20200157

Supreme Court of North Dakota.

FILED FEBRUARY 18, 2021

Bonnie P. Humphrey, Minot, ND, for plaintiff and appellant; submitted on brief.

Elizabeth J. Sundby, West Fargo, ND, for defendant and appellee; submitted on brief.

Crothers, Justice.

[¶1] Daniel Stoddard appeals from a district court order and judgment amending the parenting plan between Stoddard and Christina Singer for their minor child, M.S.S. Stoddard presents 12 issues, asserting the district court erred in its determination a change in primary residential responsibility was unwarranted. Stoddard's issues can be condensed to the four arguments we address below. We affirm the district court's order and judgment finding Stoddard did not meet his burden of proof regarding primary residential responsibility, not appointing a parenting investigator, and delaying the emergency hearing. We reverse the district court's order preventing Stoddard from proceeding on a psychological parent claim related to J.B.G.

I

[¶2] Stoddard and Singer were married on April 24, 2010, in Washington state. The parties’ minor child, M.S.S., was born in January 2010. Singer has a child from a previous relationship, J.B.G., born in 2006. J.B.G. has no biological or legal connection with Stoddard. The parties separated in May, 2016 while living in North Dakota. They resided in the same house until Stoddard returned to Washington in August, 2016. The parties were divorced on March 15, 2017. The divorce was by agreement of the parties, each self-represented. As part of the agreement, Singer received primary residential responsibility for M.S.S. while Stoddard received parenting time on alternating holidays and summer vacations.

[¶3] On May 20, 2018, Stoddard filed an expedited motion to modify and enforce judgment. The parties reached a temporary agreement for Stoddard's summer parenting time. The district court denied any other immediate relief. On June 20, 2018, a schedule and order for mediation was entered. A partial agreement was reached during mediation regarding winter parenting time and some property and debt issues. On December 23, 2018, Stoddard filed an amended motion to amend and enforce judgment. On January 28, 2019, an order finding prima facie case and granting an evidentiary hearing was entered. The evidentiary hearing was held on July 18, 2019. Stoddard filed his closing argument on August 19, 2019, and Singer filed a letter brief on August 20, 2019.

[¶4] On September 25, 2019, before the district court made a decision on the pending issues, Stoddard filed an emergency motion for an interim order placing M.S.S. in his custody. When Stoddard's telephonic requests to schedule an emergency hearing were denied, he wrote letters to the court to request a hearing. A hearing was scheduled on the emergency motion for January 21, 2020. During the hearing, the court interviewed J.B.G. and M.S.S. On February 24, 2020, the court entered an order denying Stoddard's amended motion to modify and enforce judgment, as well as his emergency motion. The order amending the parenting plan and the amended judgment were filed on May 18, 2020.

II

[¶5] Stoddard argues the district court erred in finding he did not meet his burden of proof in seeking a change of primary residential responsibility for M.S.S. Stoddard asserts the court erred in: (1) failing to find abuse or neglect by Singer, (2) not finding Singer's alleged failures to provide for M.S.S.’s needs was a reason to award him primary residential responsibility, (3) failing to find Singer's alcohol and marijuana use interfered with M.S.S.’s safety, (4) failing to find a change in residential responsibility was necessary to provide for M.S.S.’s special needs, (5) failing to find Singer willfully violated and interfered with parenting time, (6) failing to consider Singer's alleged lack of credibility, and (7) failing to find a material change in circumstances existed that warranted a modification in parenting time.

[¶6] A district court's decision on whether to modify primary residential responsibility is a finding of fact, which will not be reversed on appeal unless it is clearly erroneous. Regan v. Lervold , 2014 ND 56, ¶ 15, 844 N.W.2d 576. A finding of fact is clearly erroneous if it is induced by an erroneous view of the law, there is no evidence to support it, or if the appellate court is convinced, on the entire record, a mistake has been made. Id.

[¶7] Unless agreed to in writing or in the parenting plan, a motion for an order to modify primary residential responsibility may not be made earlier than two years after the entry of an order establishing primary residential responsibility. N.D.C.C. § 14-09-06.6(1). That time limitation does not apply if the court finds:

"a. The persistent and willful denial or interference with parenting time; 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 residential responsibility for the child has changed to the other parent for longer than six months."

N.D.C.C. § 14-09-06.6(3)(a)-(c). Under the clearly erroneous standard of review, this Court will not "reweigh the evidence, reassess the credibility of witnesses, or substitute [its] own judgment for a district court's initial decision." Vandal v. Leno , 2014 ND 45, ¶ 6, 843 N.W.2d 313.

[¶8] Stoddard argues on several occasions the district court erred by not making certain findings. Although on a different basis, the Minnesota Supreme Court concluded a district court's failure to make certain findings was not clearly erroneous. In re Disciplinary Action against Albrecht , 779 N.W.2d 530, 538 (Minn. 2010) (explaining that in deference to a referee's findings and because findings on mitigating factors require an assessment of witness credibility, the referee's decision not to find additional mitigating factors was not clearly erroneous).

A

[¶9] Stoddard argues Singer deprived and neglected M.S.S. to a point below minimum community standards, constituting domestic violence against M.S.S. Domestic violence is defined as "physical harm, bodily injury, sexual activity compelled by physical force, assault, or the infliction of fear of imminent physical harm, bodily injury, sexual activity compelled by physical force, or assault, not committed in self-defense, on the complaining family or household members." N.D.C.C. § 14-07.1-01. Stoddard asserts Singer's use of a baby gate at night, M.S.S.’s alleged exposure to unsafe and unsanitary conditions, including feces in a bathroom, and Singer's lack of attention to M.S.S.’s dental and medical needs support this contention. Stoddard asserts he addressed M.S.S.’s continuing medical problems, which should have contributed to a finding M.S.S. was deprived and neglected while in Singer's care.

[¶10] Despite Stoddard's assertion, the court received evidence showing M.S.S. did not have access to the bathroom that was allegedly covered in feces. Additionally, Stoddard filed several reports with social services regarding alleged unsafe conditions and alleged lack of medical care for M.S.S. Each investigation was terminated in progress with no findings or basis for abuse or neglect allegations. Testimony also was presented showing Easter Seals approved of Singer's use of a baby gate at night for M.S.S. Testimony also showed Singer was unable to promptly take care of M.S.S.’s dental problems because she was referred to a different dentist due to M.S.S.’s special needs.

[¶11] The district court was presented with conflicting evidence about Singer's care for M.S.S. This Court will not reweigh the evidence presented. Vandal , 2014 ND 45, ¶ 6, 843 N.W.2d 313. The district court's lack of a finding of domestic violence was not clearly erroneous and we are not left with a definite and firm conviction a mistake was made.

B

[¶12] Stoddard argues the district court erred by not finding Singer's alleged failures to provide for M.S.S.’s safety, structure, educational needs, medical and dental problems were reasons to award him primary residential responsibility. Stoddard argues Singer continually failed to provide M.S.S. with a safe environment. He asserts Singer's alcohol and marijuana use were ignored by the court, including that illegal substances should not be used around a special needs child.

[¶13] Stoddard filed several complaints with social services regarding these issues. The complaint investigations all were terminated in progress finding no neglect or abuse. A school paraprofessional testified M.S.S. was well-dressed at school each day, with unmatted hair and clean fingernails. A social worker with whom Singer voluntarily engaged on a monthly basis testified she had no concerns about M.S.S.’s safety with Singer after thoroughly inspecting and touring Singer's home. The district court noted the medical and school records showed that despite M.S.S.’s heightened hygienic and medical needs due to his sensory processing disorder, those needs were met by Singer. Although Singer admitted to going to the bar each Wednesday to visit with a friend, M.S.S. was left in the care of J.B.G., something social services found on more than one occasion was not a problem. Further, despite Singer's admitted marijuana use, she testified she did not use around M.S.S. or J.B.G. No evidence was offered by Stoddard to the contrary. As the court noted, Stoddard presented no evidence of Singer's association with illegal drug dealing and M.S.S.’s possible access to the illegal drugs. The district court not finding Singer failed to provide for M.S.S.’s needs was not clearly erroneous.

C

[¶14] Stoddard asserts the district court erred in failing to find Singer's admitted use of alcohol and illegal drugs...