Lerfald v. Lerfald , 2021 ND 150 ( 2021 )

FILED
IN THE OFFICE OF THE
CLERK OF SUPREME COURT
AUGUST 5, 2021
STATE OF NORTH DAKOTA
IN THE SUPREME COURT
STATE OF NORTH DAKOTA
2021 ND 150Kelsey Rae Lerfald, aka Kelsey Rae Bosch, Plaintiff and Appellee
v.
Tyson Arleigh Lerfald, Defendant and Appellant
and
State of North Dakota, Statutory Real Party in Interest
No. 20210008
Appeal from the District Court of Cass County, East Central Judicial District,
the Honorable Thomas R. Olson, Judge.
AFFIRMED.
Opinion of the Court by VandeWalle, Justice.
Kelsey R. Bosch, self-represented, Horace, ND, plaintiff and appellee;
submtited on brief.
Kristin A. Overboe, Fargo, ND, for defendant and appellant; submitted on
brief.
Lerfald v. Lerfald
No. 20210008
VandeWalle, Justice.
[¶1] Tyson Lerfald appealed from a district court order denying his motion to
modify his child support obligation and the parenting time provisions of the
amended judgment. Lerfald argues the district court erred by denying his
motion to modify the parenting time provisions. He contends the parenting
time provisions require him to maintain a valid driver’s license and be solely
responsible for parenting time transportation, which causes his parenting time
to be contingent on having a valid driver’s license. We affirm, concluding the
court’s finding that Lerfald failed to establish a material change in
circumstances is not clearly erroneous and the court did not err in denying
Lerfald’s motion.
I
[¶2] In 2015, Kelsey Lerfald, now known as Kelsey Bosch, sued for divorce.
The parties have one minor child together. In November 2015, a divorce
judgment was entered, incorporating the parties’ stipulation, including that
Bosch have primary residential responsibility of the child.
[¶3] In February 2020, Bosch moved to modify parenting time. Lerfald did
not respond to the motion or appear at a hearing on the motion. On March 3,
2020, the district court granted Bosch’s motion. The court modified parenting
time, including ordering, “Tyson must maintain a valid driver’s license and
shall be solely responsible for transportation to facilitate his parenting time.”
An amended judgment was entered.
[¶4] In November 2020, Lerfald moved to modify the amended judgment. He
requested the district court remove the provision requiring him to have a valid
driver’s license, enforce his parenting time, order reinstatement of his driver’s
license, and modify his child support obligation.
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[¶5] After a hearing, the district court denied Lerfald’s motion. The court
found there had not been a material change of circumstances since entry of the
amended judgment which would warrant modification of the parenting-time
provisions. The court found any changes that occurred were all negative
regarding Lerfald’s parenting time, including Lerfald’s arrest for driving under
the influence while the child was in the vehicle. The court also found an
analysis of the best interest factors weighed in Bosch’s favor.
II
[¶6] Lerfald argues the district court erred by denying his request to modify
the amended judgment to remove the requirement that he maintain a driver’s
license and be solely responsible for parenting time transportation. He claims
the driver’s license requirement provides an unreasonable restriction on his
ability to exercise parenting time and parenting time should not be contingent
on having a driver’s license.
[¶7] A court’s decision concerning parenting time is a finding of fact, which
will not be reversed on appeal unless it is clearly erroneous. Rustad v.
Baumgartner, 2020 ND 126, ¶ 8, 943 N.W.2d 786. A finding of fact is clearly
erroneous if it is induced by an erroneous view of the law, if there is no evidence
to support it, or if we are left with a definite and firm conviction a mistake has
been made. Id. To modify a parenting time provision, the moving party must
show that a material change in circumstances has occurred since entry of the
prior parenting time order and that modification is in the child’s best interests.
Id. A material change is an important new fact that has occurred since the
entry of the prior order. Id.[¶8] The district court denied Lerfald’s motion, finding Lerfald failed to
establish a material change in circumstances had occurred since entry of the
amended judgment. Lerfald argues the court’s finding is clearly erroneous but
he does not explain what material change occurred that supports his motion.
He argues the court failed to apply the best interest factors and the
requirement that he provide the parenting time transportation with a valid
driver’s license is not in the child’s best interest.
2
[¶9] Lerfald testified his driver’s license was suspended before the amended
judgment was issued. The loss of his license is not a new fact that has occurred
since the entry of the prior order, and therefore is not a material change in
circumstances. The district court was not required to consider and make
findings about the best interest factors unless a material change in
circumstances was established. Cf. Valeu v. Strube, 2018 ND 30, ¶ 20, 905
N.W.2d 728 (stating district court was not required to consider the best interest
factors when the party moving to modify primary residential responsibility
failed to establish a material change in circumstances).
[¶10] Lerfald essentially argues the district court erred in ordering him to
maintain a valid driver’s license and be solely responsible for parenting time
transportation. Lerfald’s arguments constitute a collateral attack on the
amended judgment. Lerfald did not appeal the amended judgment. “A party
may not collaterally attack a final decision, that was not appealed, in
subsequent proceedings.” In re T.H., 2012 ND 38, ¶ 20, 812 N.W.2d 373. If
Lerfald believed the district court erred in entering the amended judgment by
ordering him to maintain a driver’s license and be solely responsible for
parenting time transportation, his remedy was to appeal that decision.
[¶11] As the moving party, Lerfald had the burden to show a material change
in circumstances exists. The district court found Lerfald failed to prove a
material change. The evidence supports the court’s findings. We conclude the
court’s findings are not clearly erroneous. We acknowledge the concern that
requiring a parent to maintain a driver’s license and be solely responsible for
parenting time transportation may result in a denial of parenting time.
However, Lerfald did not appeal the amended judgment and he failed to show
a material change in circumstances exists, and therefore we are left without a
remedy.
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III
[¶12] Lerfald argues the district court’s findings are based on inadmissible
hearsay evidence. He argues the court relied on Bosch’s affidavits and exhibits,
but she did not offer her exhibits or affidavits at the hearing, and therefore the
court relied on inadmissible hearsay.
[¶13] In reviewing the district court’s decision to admit evidence, we apply an
abuse of discretion standard. Krueger v. Krueger, 2013 ND 245, ¶ 22, 840
N.W.2d 613. The court abuses its discretion when it acts in an arbitrary,
unreasonable, or unconscionable manner, or when its decision is not the
product of a rational mental process leading to a reasoned determination. Id.“[T]he ‘introduction of allegedly inadmissible evidence in a non-jury case is
rarely reversible error, and we would only reverse such a holding if all the
competent evidence is insufficient to support the judgment or unless it
affirmatively appears that the incompetent evidence induced the court to make
an essential finding which would not otherwise have been made.’” Id. at ¶ 23
(quoting In re J.S.L., 2009 ND 43, ¶ 25, 763 N.W.2d 783).
[¶14] At the beginning of the hearing, Lerfald’s attorney stated, “What I’ve got
is a preliminary matter that we could offer the affidavits and exhibits into
evidence.” There was no further offer of Bosch’s affidavit. Lerfald then called
Bosch as a witness and cross examined her on the statements she made in her
affidavits and exhibits. Generally a party cannot complain on appeal of alleged
errors he invited. State v. Morales, 2019 ND 206, ¶ 30, 932 N.W.2d 106.
[¶15] Lerfald had the burden to establish a material change in circumstances
occurred justifying a modification of the parenting time provisions. See
Schurmann v. Schurmann, 2016 ND 69, ¶ 12, 877 N.W.2d 20. He failed to
present evidence establishing a material change existed. To the extent the
district court admitted any inadmissible evidence, the error was not a
reversible error.
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IV
[¶16] We have considered all remaining issues and arguments raised, and we
conclude they are either without merit or unnecessary to our decision. We
affirm the order.
[¶17] Jon J. Jensen, C.J.
Gerald W. VandeWalle
Daniel J. Crothers
Lisa Fair McEvers
Jerod E. Tufte
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