Lovett v. Lovett , 2022 ND 37 ( 2022 )

FILED
IN THE OFFICE OF THE
CLERK OF SUPREME COURT
FEBRUARY 18, 2022
STATE OF NORTH DAKOTA
IN THE SUPREME COURT
STATE OF NORTH DAKOTA
2022 ND 37Viviana J. Lovett, Plaintiff and Appellant
v.
Antonio R. Lovett, Defendant and Appellee
and
State of North Dakota, Statutory Real Party in Interest
No. 20210198
Appeal from the District Court of Ward County, North Central Judicial
District, the Honorable Stacy J. Louser, Judge.
APPEAL DISMISSED.
Opinion of the Court by VandeWalle, Justice.
Christene A. Reierson, Minot, ND, for plaintiff and appellant; submitted on
brief.
Kyle R. Craig, Minot, ND, for defendant and appellee; submitted on brief.
Lovett v. Lovett
No. 20210198
VandeWalle, Justice.
[¶1] Viviana Lovett appealed from an order denying her motion to modify
primary residential responsibility for the children she has with Antonio Lovett.
Viviana Lovett argues the district court erred by finding she failed to establish
a prima facie case for modification because the divorce judgment stated the
parties would revisit the parenting plan if either parent intends to move and
Antonio Lovett filed a motion to relocate the children. We do not reach the
merits of Viviana Lovett’s argument because we conclude the issue on appeal
is now moot. We dismiss the appeal.
I
[¶2] Viviana Lovett and Antonio Lovett divorced in 2018 and have two minor
children together. The divorce judgment, which adopted the parties’
stipulation, awarded the parties equal residential responsibility for the
children and included a parenting plan. The judgment included a provision
stating the parenting plan would be reviewed upon the oldest child reaching
the age of ten or if either parent intends to move more than 50 miles from their
current residence.
[¶3] In 2019, Antonio Lovett moved to modify primary residential
responsibility for the children. In January 2020, the district court granted the
father’s motion and awarded him primary residential responsibility for the
children. The parties agreed to modify certain sections of the parenting plan,
the court adopted the parties’ stipulation, and judgment was entered. The
judgment indicated which paragraphs of the prior judgment were modified and
stated all other provisions of the parenting plan incorporated in the 2018
judgment “that do not conflict with the terms agreed upon shall remain
unchanged.”
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[¶4] In April 2021, Antonio Lovett moved to relocate with the children to
Japan. Viviana Lovett moved to modify residential responsibility, arguing the
judgment allows a motion to modify residential responsibility in less than two
years from the prior order if either party intends to move more than 50 miles
and Antonio Lovett’s motion to relocate triggers that provision.
[¶5] In June 2021, the district court denied Viviana Lovett’s motion to modify
primary residential responsibility, finding she failed to establish a prima facie
case for modification because she did not allege any of the statutory exceptions
to the two-year time limitation on modification motions applied. In August
2021, the court denied Antonio Lovett’s motion to relocate.
II
[¶6] Viviana Lovett argues the district court erred by finding she failed to
establish a prima facie case for modification. She asserts the parties stipulated
and the parenting plan provided that they would review the parenting plan
upon the oldest child reaching the age of ten or if either parent intends to move
more than 50 miles from their current residence. She claims this provision
from the 2018 judgment was incorporated by reference in the 2020 judgment,
both of those conditions have been met, and therefore she was not required to
show any of the statutory exceptions to overcome the two-year time limitation
on modifying residential responsibility.
[¶7] Section 14-09-06.6, N.D.C.C., governs modifications of primary
residential responsibility and provides:
1. Unless agreed to in writing by the parties, or if included in the
parenting plan, no motion for an order to modify primary
residential responsibility may be made earlier than two years after
the date of entry of an order establishing primary residential
responsibility, except in accordance with subsection 3.
2. Unless agreed to in writing by the parties, or if included in the
parenting plan, if a motion for modification has been disposed of
upon its merits, no subsequent motion may be filed within two
years of disposition of the prior motion, except in accordance with
subsection 5.
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3. The time limitation in subsections 1 and 2 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.
[¶8] The party moving to modify residential responsibility within two years
of a prior order deciding a motion on its merits is required to establish a prima
facie case justifying modification to obtain an evidentiary hearing. N.D.C.C. §
14-09-06.6(4); Wald v. Holmes, 2013 ND 212, ¶ 3, 839 N.W.2d 820. “A prima
facie case is established by the moving party ‘alleging, with supporting
affidavits, sufficient facts which, if they remained uncontradicted at an
evidentiary hearing, would support a [primary residential responsibility]
modification in her favor.’” Wald, at ¶ 5 (quoting Tank v. Tank, 2004 ND 15, ¶
9, 673 N.W.2d 622). “Whether a moving party has established a prima facie
case for a modification of primary residential responsibility is a question of law
which this Court reviews de novo on appeal.” Kerzmann v. Kerzmann, 2021 ND
183, ¶ 6, 965 N.W.2d 427 (quoting Baker v. Baker, 2019 ND 225, ¶ 7, 932
N.W.2d 510).
[¶9] Here, the district court found Viviana Lovett failed to establish a prima
facie case for modification of residential responsibility. The court explained the
two-year limitation on a motion to modify does not apply if the court finds any
of the exceptions under N.D.C.C. § 14-09-06.6(3), Viviana Lovett did not allege
any of the three statutory exceptions, her arguments about Antonio Lovett’s
proposed move to Japan ignores the 2020 order and assumes the father has
already moved, and there is no evidence the move has taken place. The court
found it had no option but to deny the motion to modify.
[¶10] Viviana Lovett alleges the judgment allows the district court to modify
residential responsibility within two years of a prior order when a parent
intends to move more than 50 miles from their current residence. She claims
Antonio Lovett requested the court order he be allowed to relocate with the
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children to Japan, and therefore she established a prima facie case for
modification. However, even if we were to conclude the district court
misapplied the law and erred in finding Viviana Lovett failed to establish a
prima facie case for modification, the basis for modification no longer exists.
The district court subsequently denied Antonio Lovett’s motion to relocate.
There was no other evidence that he has an intent to move more than 50 miles
from his current residence.
[¶11] This Court does not render advisory opinions and there must be an
actual controversy to be determined before we can properly adjudicate. Bies v.
Obregon, 1997 ND 18, ¶ 9, 558 N.W.2d 855. “No actual controversy exists if
subsequent events make it impossible for a court to provide effective relief, or
if the lapse of time has made the issue moot.” Nelson v. Nelson, 2020 ND 130,
¶ 7, 944 N.W.2d 335 (quoting In re Estate of Shubert, 2013 ND 215, ¶ 12, 839
N.W.2d 811). “An appeal is moot when ‘a determination is sought which, when
rendered, cannot have any practical legal effect upon a then-existing
controversy.’” Interest of B.A.C., 2017 ND 247, ¶ 7, 902 N.W.2d 767 (quoting
Varnson v. Satran, 368 N.W.2d 533, 535 (N.D. 1985)).
[¶12] Because Antonio Lovett’s motion to relocate was denied and the basis for
Viviana Lovett’s motion to modify no longer exists, our review of the district
court’s decision would have no practical legal effect. We conclude any issue
about whether the district court erred in finding Viviana Lovett failed to
establish a prima facie case for modification is moot.
[¶13] Viviana Lovett did not argue to the district court that the parenting plan
was subject to review because the oldest child is now ten years old. She raised
this issue for the first time on appeal. We will not consider arguments raised
for the first time on appeal. See Orwig v. Orwig, 2021 ND 33, ¶ 48, 955 N.W.2d
34.
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III
[¶14] We hold the issue raised on appeal is moot, and we dismiss the appeal.
[¶15] Jon J. Jensen, C.J.
Gerald W. VandeWalle
Daniel J. Crothers
Lisa Fair McEvers
Jerod E. Tufte
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