Fleck v. Fleck

                                                                                 FILED
                                                                         IN THE OFFICE OF THE
                                                                      CLERK OF SUPREME COURT
                                                                              JULY 19, 2023
                                                                       STATE OF NORTH DAKOTA




                  IN THE SUPREME COURT
                  STATE OF NORTH DAKOTA

                                

Ryan Fleck,                                               Plaintiff and Appellant
      v.
Dana Fleck,                                            Defendant and Appellee
      and
State of North Dakota,                         Statutory Real Party in Interest



                                No. 20230011

Appeal from the District Court of Oliver County, South Central Judicial
District, the Honorable James S. Hill, Judge.

AFFIRMED IN PART, REVERSED IN PART, AND REMANDED.

Opinion of the Court by McEvers, Justice.

Emily J. Rouse, Fargo, ND, for plaintiff and appellant.

Jennifer M. Gooss, Beulah, ND, for defendant and appellee.
                           Fleck v. Fleck, et al.
                              No. 20230011

McEvers, Justice.

[¶1] Ryan Fleck appeals from an order denying his motion to amend a
parenting plan. He argues the district court erred in allowing Dana Fleck to
testify, and he makes various challenges to the court’s findings. We hold the
court did not err in allowing Dana Fleck to testify. We further hold the court
applied an erroneous standard for determining whether a material change in
circumstances has occurred for purposes of modifying parenting time. We
affirm in part, reverse in part, and remand for further proceedings.

                                      I

[¶2] The parties married in 2015 and have two minor children. In 2019, when
Ryan Fleck sued for divorce, the children were living with Dana Fleck in
Oklahoma. Ryan Fleck remained in North Dakota. The parties stipulated to a
marital termination agreement, which included a parenting plan. They agreed
Dana Fleck would have primary residential responsibility of the children. The
parenting plan does not specify a schedule for Ryan Fleck’s parenting time. It
allows him “regular parenting time” in Oklahoma provided he gives
“reasonable notice.” The plan also provides Ryan Fleck parenting time in North
Dakota for a minimum of one week in the summer and one week during winter
break. The plan gives Dana Fleck final decision-making authority in the event
of a dispute. The parties’ stipulated agreement was incorporated into the
divorce judgment, which neither party appealed.

[¶3] In 2022, Ryan Fleck filed a motion requesting the district court hold
Dana Fleck in contempt alleging she violated the terms of the parenting plan
by failing to communicate and depriving him of time with the children. He also
requested the court modify the parenting plan to set a summer and holiday
schedule, to allow the children to spend the majority of the summer with him
in North Dakota, and to remove the provision allowing Dana Fleck to make the
final decision in the event of a dispute. He asserted the current plan was too
unstructured and not in the best interests of the children.


                                      1
[¶4] The district court entered an order for an evidentiary hearing
determining Ryan Fleck established a prima facie case there had been a
material change in circumstances adversely affecting the children. At the
outset of the hearing, Ryan Fleck objected to Dana Fleck offering evidence. He
argued she failed to comply with N.D.R.Ct. 3.2, which governs motion practice,
because she did not provide notice that she intended to present evidence at the
hearing. He claimed her testimony would amount to unfair surprise. The court
overruled his objection. Both parties testified. Ryan Fleck testified he is no
longer a truck driver. He argued this constituted a material change in
circumstances because, as a truck driver, “he was making frequent trips to
Oklahoma” and “this is now no longer the case.”

[¶5] The district court denied Ryan Fleck’s motion. The court held he failed
to prove the existence of a material change in circumstances and either a
general decline in the condition of the children or that the change has adversely
affected the children. The court also held the evidence did not support a finding
that modification of the parenting plan would be in the best interest of the
children, noting: “Ryan Fleck did not submit a ‘best interest analysis’ upon
which the Court could make that determination.” Ryan Fleck appeals.

                                       II

[¶6] Ryan Fleck argues the district court erred when it overruled his objection
and allowed Dana Fleck to testify. He also asserts the court applied an
erroneous standard to his motion to modify parenting time, the court made
insufficient findings concerning the best interests of the children, and the
current parenting plan constitutes an improper restriction on his right to
parent.

                                       A

[¶7] Rule 3.2(a)(2), N.D.R.Ct., sets deadlines for when a moving party and
responding party may file their briefs and “other supporting papers.” Ryan
Fleck argues the term “other supporting papers” encompasses “declarations
and exhibits,” and consequently evidence may not be presented at a motion
hearing unless notice of the evidence is included with briefing in accordance


                                       2
with the Rule 3.2(a)(2) deadlines. He argues the district court erred by
considering the evidence offered by Dana Fleck because it was not presented
in a timely “declaration in support of her response.”

[¶8] We apply principles of statutory construction when interpreting court
rules. Interest of A.P., 

, 

. We attempt to
ascertain intent by first looking to the language of the rule, and we construe
the rule’s words based on their plain, ordinary, and commonly understood
meaning. Id.; see also Olsrud v. Bismarck-Mandan Orchestral Ass’n, 

, 

. When possible, we construe the rule as a whole to
give meaning to each word and phrase. Olsrud, at ¶ 12. “‘The interpretation of
a court rule, like the interpretation of a statute, is a question of law.’” Desert
Partners IV, L.P. v. Benson, 

, 

 (quoting State
v. Ebertz, 

, 

).

[¶9] We reject Ryan Fleck’s reading of the briefing deadlines in N.D.R.Ct.
3.2(a) as governing the presentation of evidence at a motion hearing. Rule
3.2(b) instead refers to motion hearings. It allows the district court to set a
hearing on any motion and states: “the court may require oral argument and
may allow or require evidence on a motion.” Rule 3.2(b) does not contain any
notice or timing requirements. Rule 3.2(b) is consistent with N.D.R.Civ.P. 43(b),
which applies to the presentation of evidence on a motion and provides: “When
a motion relies on facts outside the record, the court may hear the matter on
declarations or may hear it wholly or partly on oral testimony or on
depositions.” See Ibach v. Zacher, 

, 

. The word
“may”—used in both N.D.R.Ct. 3.2(b) and N.D.R.Civ.P. 43(b)—operates to
confer discretion. E.R.J. v. T.L.B., 

, 

. Whether
to allow evidence on a motion, and what type of evidence to allow, is
consequently within the sound discretion of the district court. Ibach, at ¶¶ 5–
6; see also State v. Krous, 

, ¶¶ 10–11, 

 (holding the
district court did not abuse its discretion when it allowed the State to present
evidence at a suppression hearing despite the State’s failure to file any
briefing).




                                        3
[¶10] Ryan Fleck also argues the district court’s decision to allow Dana Fleck
to testify at the evidentiary hearing amounted to unfair surprise and “a trial
by ambush.” It is unclear why Ryan Fleck, who moved to hold Dana Fleck in
contempt and to modify their parenting plan, would be surprised by her
decision to testify at the evidentiary hearing set for his motion. In any event,
the remedy for unfair surprise is a continuance, which he did not request. See
Sollin v. Klein, 

, 

 (failure to request a
continuance constituted waiver of claim for unfair surprise). We conclude the
district court did not abuse its discretion when it allowed Dana Fleck to present
evidence at the motion hearing.

                                       B

[¶11] Ryan Fleck argues the district court improperly applied the standard for
modifying primary residential responsibility to his motion to modify parenting
time.

[¶12] Section 14-09-30, N.D.C.C., sets out the required content for parenting
plans. The district court has continuing jurisdiction to modify parenting time
under N.D.C.C. § 14-05-22. Green v. Swiers, 

, 

. Section 14-05-22(2) states:

      After making an award of primary residential responsibility, the
      court, upon request of the other parent, 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 or emotional health.

The standard for modifying parenting time under § 14-05-22(2) is governed by
our case law. Simburger v. Simburger, 

, 

. “A
party moving to modify parenting time must show that a material change in
circumstances has occurred since entry of the prior parenting time order and
that the modification is in the child’s best interests.” Konkel v. Amb, 

, 

. For purposes of modifying parenting time, we have
defined a material change in circumstances as “important new facts that were
unknown at the time” of the initial parenting time order. Wolt v. Wolt, 

, 

 (quoting Helfenstein v. Schutt, 

,

).

[¶13] A district court’s decision on whether to modify parenting time is a
finding of fact reviewed under the clearly erroneous standard of review. Prchal
v. Prchal, 

, 

. “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 on the entire evidence we are left with a definite and firm
conviction a mistake has been made.” 

 (cleaned up) (quoting Dufner v.
Trottier, 

, 

).

[¶14] The standard for modifying parenting time is similar to, but distinct
from, the standard for modifying primary residential responsibility, which is
governed by N.D.C.C. § 14-09-06.6(6). Simburger, 

. Both
standards require a showing of a material change in circumstances and that
modification is in the best interest of the child. Ritter v. Ritter, 

, 

. However, unlike a party requesting a modification of
primary residential responsibility, a movant requesting changed parenting
time is not required to establish a prima facie case to obtain an evidentiary
hearing. Id.; see also State ex rel. Seibold v. Leverington, 

, 

. That requirement, as well as other limitations on modifying
primary residential responsibility set out by § 14-09-06.6, are the result of the
Legislature’s intent “to dissuade dissatisfied or disgruntled parents from
continuously using motions to change child custody as a means to disrupt the
life of the child and custodial parent.” Simburger, at ¶ 13. Section 14-05-22(2),
however, does not contain these limitations.

[¶15] Modification of primary residential responsibility also requires a
showing that the materially changed circumstances “adversely affect the child
or result in a general decline in the child’s condition.” Anderson v. Spitzer, 

, 

; see also Kunz v. Slappy, 

, ¶ 28 , 

 (holding the district court erred by modifying primary residential
responsibility without an adverse effect or general decline finding).
Dissimilarly, our standard for determining whether a material change in
circumstances has occurred for purposes of modifying parenting time does not


                                        5
require an adverse effect on the child or a resulting decline in the child’s
condition. We have recognized materially changed circumstances warranting
modification of parenting time that do not necessarily implicate the child’s
welfare. For example, a material change in circumstances warranting
modification of parenting time may occur when there have been significant
changes to a parent’s work schedule or a parent has remarried, see Konkel,

, or when a parent has experienced a serious health condition
requiring treatment and associated scheduling changes, see Ibach, 

. We have also recognized modification may be warranted based on a
parent moving or based on conflict between parents concerning parenting time.
Schurmann v. Schurmann, 

, 

; see also Prchal,

 (collecting additional cases analyzing materially changed
circumstances in the context of parenting time). However, to be clear,
regardless of how or whether the changed circumstances affect the child,
modification of parenting time must always be in the child’s best interests.
Ritter, 

. As a corollary to this rule, changes to parenting time
may never be at the child’s expense or create conditions adverse to the child’s
interests.

[¶16] Here, the district court entered a preliminary order for an evidentiary
hearing determining Ryan Fleck had met his burden of establishing a prima
facie case under N.D.C.C. § 14-09-06.6. Based on the evidence presented at the
hearing, the court found Ryan Fleck had not met his burden of proof. The court
determined Ryan Fleck was required to “show, in addition to a material change
in circumstance, that the material change in circumstance adversely affected
[the children] or resulted in a general decline in their condition.” On this basis,
and specifically relying on our opinion in Kunz v. Slappy, 

, the
court declined to modify parenting time.

[¶17] We conclude the district court misapplied the law. Kunz clarified the
requirements for modifying primary residential responsibility under N.D.C.C.
§ 14-09-06.6(6), which does not apply to modifications of parenting time.
Section 14-05-22(2) instead governs parenting time modifications. Under § 14-
05-22(2) and our case law, Ryan Fleck was not required to establish a prima
facie case to be entitled to an evidentiary hearing. Nor was he required to prove


                                        6
a material change in circumstances adversely affected the children or resulted
in a decline in their condition. Adding the unnecessary requirement of proving
a prima facie case was harmless because he received an evidentiary hearing;
however, the district court’s imposition of these additional statutory
requirements on Ryan Fleck’s motion to modify parenting time constitutes a
misapplication of the law, and we therefore hold the court’s decision is clearly
erroneous.

                                       C

[¶18] In addition to the district court’s determination that Ryan Fleck did not
establish a material change in circumstances, the court appears to have made
an alternative finding that modification of parenting time would not be in the
best interests of the children. The court noted Ryan Fleck did not analyze the
best interest factors under N.D.C.C. § 14-09-06.2, and the court found Ryan
Fleck’s testimony “was more of a statement as to what he wanted for visitation
and parenting time rather than a persuasive analysis of facts that would
justify modification.” The court’s analysis does not address the main impetus
of Ryan Fleck’s argument. He asserted the current “loose” and “not structured”
parenting plan is not in the best interests of the children given the conflict
between the parties and their inability to communicate. He also argued the
plan was not in compliance with N.D.C.C. § 14-09-30 because it does not
contain various scheduling, transportation, and communication provisions.
The thrust of his argument is that a more structured plan, specifically
complying with § 14-09-30, would benefit the children by imposing, in his
words, “clear expectations” that will “avoid future disputes.” Because we are
unable to decipher the court’s rationale for rejecting Ryan Fleck’s argument,
we decline to affirm the court’s decision on the basis of its alternative best
interest finding. See McCormick, Inc. v. Fredericks, 

, 

 (stating we cannot perform our appellate function if we cannot
understand the district court’s rationale).

                                       D

[¶19] Ryan Fleck argues the current parenting plan constitutes an improper
restriction on his right to parent. However, he did not appeal from the initial

                                       7
judgment. His arguments concerning the validity of the restrictions in the
unappealed judgment constitute an impermissible collateral attack. See
Lerfald v. Lerfald, 

, 

 (holding movant for
modification of parenting time was not allowed to challenge unappealed
parenting time requirements). A party may not use subsequent proceedings to
attack a final decision that was not appealed. 

 If Ryan Fleck believed the
court erred when it adopted the parties’ stipulated parenting plan, “his remedy
was to appeal that decision.” 

                                     III

[¶20] We affirm the district court’s ruling allowing Dana Fleck to testify under
N.D.R.Ct. 3.2. We reverse the portion of the district court’s order denying Ryan
Fleck’s motion to modify parenting time and remand the case for the court to
make new findings applying the legal standards consistent with this opinion.

[¶21] Jon J. Jensen, C.J.
      Daniel J. Crothers
      Lisa Fair McEvers
      Jerod E. Tufte
      Jay A. Schmitz, D.J.

[¶22] The Honorable Jay A. Schmitz, D.J., sitting in place of Bahr, J.,
disqualified.




                                       8