FILED
IN THE OFFICE OF THE
CLERK OF SUPREME COURT
MARCH 31, 2023
STATE OF NORTH DAKOTA
IN THE SUPREME COURT
STATE OF NORTH DAKOTA
2023 ND 53
Joshua M. Goetz, Plaintiff and Appellee
v.
Cassandra B. Goetz, n.k.a. Cassandra Smith, Defendant and Appellant
and
State of North Dakota, Statutory Real Party in Interest
No. 20220231
Appeal from the District Court of McLean County, South Central Judicial
District, the Honorable James D. Gion, Judge.
REMANDED WITH INSTRUCTIONS.
Opinion of the Court by McEvers, Justice.
Justin D. Hager, Bismarck, ND, for plaintiff and appellee.
Garrett D. Ludwig, Mandan, ND, for defendant and appellant.
Goetz v. Goetz, et al.
No. 20220231
McEvers, Justice.
[¶1] Cassandra Goetz appeals from a corrected amended judgment awarding
her and Joshua Goetz equal residential responsibility of their minor children
and awarding Joshua Goetz primary decision making responsibility. For the
reasons discussed in this opinion, we retain jurisdiction under N.D.R.App.P.
35(a)(3)(B) and remand with instructions that the district court make specific
findings regarding whether the material change in circumstances resulted in
a general decline or adversely affected the children.
I
[¶2] Cassandra Goetz and Joshua Goetz divorced in 2018 and have two minor
children together. In the original judgment, the district court awarded
Cassandra Goetz primary residential responsibility based on the parties’
agreement. Joshua Goetz was awarded parenting time every other weekend
and holiday. The court also awarded the parties joint decision-making
responsibility on all matters except for daycare and spiritual development
decisions, which were awarded to Cassandra Goetz.
[¶3] In February 2021, Joshua Goetz moved to modify primary residential
responsibility, due to issues with co-parenting with Cassandra Goetz.
Allegations included her refusing to allow him communication with the
children, her animosity towards his wife and her children with Joshua Goetz,
and initiating a welfare check during his parenting time without reason. After
two evidentiary hearings, the district court awarded the parties equal
residential responsibility and awarded Joshua Goetz primary decision-making
responsibility.
II
[¶4] Cassandra Goetz argues the district court erred in awarding equal
residential responsibility and giving Joshua Goetz primary decision-making
responsibility. “A district court’s decision on residential responsibility is a
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finding of fact subject to the clearly erroneous standard of review.” Queen v.
Martel, 2022 ND 178, ¶ 3,
980 N.W.2d 914. 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,
after reviewing the entire record, we are left with a definite and firm conviction
a mistake has been made.
Id.
[¶5] A party seeking to modify an existing primary residential responsibility
determination more than two years after entry of a prior order must establish
a material change in circumstances and show modification is necessary to
serve the best interests of the child. Haag v. Haag,
2016 ND 34, ¶ 8,
875
N.W.2d 539. This Court explained:
In the context of improvements to the life of the parent seeking
modification, we have determined a general decline in the
condition of the child coupled with the finding a change is in the
best interests of the child satisfies subpart (b) of N.D.C.C. § 14-09-
06.6(6). The district court’s finding that it was in the child’s best
interests to modify the existing residential responsibility without
a finding the changed circumstances had an adverse effect on the
child, or that there had been a general decline in the child’s
condition, was induced by an erroneous view of the law[.]
Kunz v. Slappy, 2021 ND 186, ¶ 28,
965 N.W.2d 408.
[¶6] Despite relying on Kunz for setting forth the relevant standard for a
motion to modify in this case, the district court did not make specific findings,
as required under Kunz, regarding whether the change in circumstances
adversely affected the children or there had been a general decline in the
children’s condition. The court made findings about Cassandra Goetz’s various
concerning behaviors:
Cassandra’s continued animus impacts the interaction between
Joshua’s new family and Cassandra’s new family, with an impact
on their daughters L.G.G. and A.J.G. as does Cassandra’s
manipulation of the parenting plan. Cassandra required a transfer
of L.G.G. and A.J.G. when weather conditions made travel unsafe.
…
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The Court became aware of the continued animosity toward
Joshua from Cassandra at the outset of the Court’s involvement.
The Court cannot fault Cassandra’s personal animus toward
Joshua, but Cassandra’s obsession with Joshua’s fault prevented
her from considering the best interests of [L.G.G.] and A.J.G. to
their detriment.
[¶7] Despite the aforementioned findings, the district court also found
“L.G.G. and A.J.G. apparently are rather normal children.” This seemingly
conflicts with a finding that it is necessary to change primary residential
responsibility. Although the district court recognized the requirement stated in
Kunz, the court did not make any specific findings of adverse effects on the
children or a general decline in the children’s conditions.
[¶8] In Anderson v. Spitzer, the district court modified primary residential
responsibility based on different parenting styles, inability to communicate,
and inability to agree on scheduling and discipline without any findings on how
the child was adversely affected. 2022 ND 110, ¶ 10,
974 N.W.2d 695. In
Spitzer, the court found “By all accounts, P.T.S. appears to be developing well.
He is an accomplished athlete and receives high academic marks.” Id. at ¶ 9.
The only challenge to that finding was an assertion P.T.S. has experienced
anxiety about being with Spitzer. Id. The court did not make any findings
regarding P.T.S.’s anxiety. Id. We reversed rather than remanded because the
findings did not indicate how changed circumstances adversely affected the
child or his condition declined. Id. at ¶ 10.
[¶9] Conversely, here, the district court made findings that could be inferred
to show how changed circumstances adversely affected the children. The court
found Cassandra Goetz’s animus towards Joshua Goetz and his new family
impacts the children and that her obsession with Joshua Goetz’s fault is to the
children’s detriment. Unlike Spitzer, the district court’s findings are unclear
rather than completely absent. Because the court did not undertake an
analysis on the effect on the children, we remand to the district court to make
these findings. See Curtiss v. Curtiss,
2016 ND 197, ¶ 13,
886 N.W.2d 565
(remanding when the district court does not make sufficient findings, and
because we are unable to understand the factual basis for the court’s decision).
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III
[¶10] We conclude the district court did not make sufficient findings of fact to
permit appellate review. We retain jurisdiction under N.D.R.App.P. 35(a)(3)(B)
and remand to the district court with instructions that, within thirty days from
the filing of this opinion, the court make specific findings of fact on whether
the material change in circumstances resulted in a general decline or had an
adverse effect on the children.
[¶11] Jon J. Jensen, C.J.
Lisa Fair McEvers
Jerod E. Tufte
David W. Nelson, S.J.
Stacy J. Louser, D.J.
[¶12] The Honorable David W. Nelson, S.J., and the Honorable Stacy J. Louser,
D.J, sitting in place of Crothers, J., and Bahr, J., disqualified.
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