Brockmeyer v. Brockmeyer , 2023 ND 48 ( 2023 )

FILED
IN THE OFFICE OF THE
CLERK OF SUPREME COURT
MARCH 16, 2023
STATE OF NORTH DAKOTA
IN THE SUPREME COURT
STATE OF NORTH DAKOTA
2023 ND 48Michael Allen Brockmeyer, Plaintiff and Appellant
v.
Angela Joy Brockmeyer, Defendant
and
State of North Dakota, Statutory Real Party in Interest
No. 20220192
Appeal from the District Court of Grand Forks County, Northeast Central
Judicial District, the Honorable Jay D. Knudson, Judge.
AFFIRMED.
Opinion of the Court by McEvers, Justice.
Jacey L. Johnston (argued) and Olivia A. Jureidini (on brief), Grand Forks,
ND, for plaintiff and appellant.
Brockmeyer v. Brockmeyer, et al.
No. 20220192
McEvers, Justice.
[¶1] Michael Brockmeyer appeals from a district court order denying his
motion to modify his joint residential responsibility to primary residential
responsibility. He argues the district court erred as a matter of law by finding
best interest factors a, b, d, f, g, and k favor neither party. He also argues the
court erred by applying the endangerment standard of N.D.C.C. § 14-09-06.6
after the parties waived that provision in their stipulated divorce agreement.
He also argues the court erred by declining to modify residential responsibility
because of facts unknown to the court at the time the court entered the original
divorce judgment based on their stipulated agreement. Finally, he argues the
court erred by allowing various witnesses to assert their Fifth Amendment
privilege against self-incrimination at trial. We affirm.
I
[¶2] Michael and Angela Brockmeyer were married in 2010 and have two
minor children and one adult child. A divorce action was initiated in November
2020. The parties stipulated to joint residential responsibility of the children,
and judgment was entered in February 2021. In August 2021, Michael
Brockmeyer moved to modify joint residential responsibility arguing Angela
Brockmeyer was mentally unstable, and moved for an interim order. The court
held a hearing on Michael Brockmeyer’s motion for an interim order on
September 1, 2021, and denied the motion. On September 15, 2021, the district
court entered an order finding a prima facie case for modification of custody.
After the parties were unable to reach an agreement in mediation, an
evidentiary hearing was held on March 29, 2022. The court denied Michael
Brockmeyer’s motion. He appeals.
II
[¶3] Michael Brockmeyer claims the district court erred by conducting an
analysis under N.D.C.C. § 14-09-06.6(3), which includes an endangerment
analysis that the parties waived in writing.
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[¶4] The divorce judgment contains a waiver of the threshold requirements
under N.D.C.C. § 14-09-06.6, but only specifically mentions subsections (5) and
(6) of the statute. The district court noted N.D.C.C. § 14-09-06.6(3) sets forth
the test for changing primary residential responsibility within two years of an
order establishing primary residential responsibility. The court found Michael
Brockmeyer failed to show a denial or interference with parenting time,
endangerment or a change of residential responsibility for six months or longer
as required under N.D.C.C. § 14-09-06.6(3). While it appears the requirements
under N.D.C.C. § 14-09-06.6(3) are similar if not identical to N.D.C.C. § 14-09-
06.6(5) as stipulated to by the parties, because the court also decided the
motion on alternate grounds, it is irrelevant.
[¶5] The district court denied Michael Brockmeyer’s motion to modify
residential responsibility based on a detailed analysis of the best interest
factors without applying the heightened statutory requirements under
N.D.C.C. § 14-09-06.6(3) or (5). Michael Brockmeyer’s argument that the court
erred by considering the endangerment standard in addition to the best
interest factors is not necessary for this Court to address because the analysis
of the best interest factors was dispositive. See Carlson v. State, 2019 ND 242,
¶ 2, 933 N.W.2d 618 (holding this Court need not address questions to which
the answers are unnecessary to the determination of an appeal).
III
[¶6] Michael Brockmeyer argues the district court erred by declining to
modify residential responsibility because Michael Brockmeyer knew of Angela
Brockmeyer’s pre-divorce conduct at the time of the original judgment, based
on a stipulation to share equal residential responsibility.
[¶7] This Court has held pre-divorce conduct can be relevant in a custody
matter when the divorce was stipulated and the district court was unaware of
the facts at the time of stipulation. Haag v. Haag, 2016 ND 34, ¶ 12, 875
N.W.2d 539.
[¶8] Michael Brockmeyer, relying on Haag, argues the district court
impermissibly relied on his knowledge of Angela Brockmeyer’s pre-divorce
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conduct. See Haag, 2016 ND 34, ¶ 12. However, unlike Haag, the conduct was
known to the court and the parties at the time of the prior order. In December
2020, Michael Brockmeyer submitted an affidavit in support of the equal
primary residential responsibility stipulation that detailed Angela
Brockmeyer’s alleged self-harm attempt. The court entered its order
establishing primary residential responsibility in February 2021. Therefore,
the court was aware of this pre-divorce conduct at the time of stipulation, prior
to the court entering its order. In addition, in Haag, the pre-divorce conduct
was used to determine whether there was a material change of circumstances.
Id. at ¶ 13. Here, the court considered the evidence presented in the context
of the best interest factors regarding the parties physical and mental health
under factor (g) and specifically held “[t]here was no evidence presented that
the parties’ mental health has negatively impacted the children.” The court
did not err by considering the parties were aware of mental health concerns at
the time of the original judgment.
IV
[¶9] Michael Brockmeyer argues the district court erred by allowing
witnesses at trial to assert their Fifth Amendment privilege. This issue was
not raised in the district court, and Michael Brockmeyer has not argued
obvious error on review. We thus conclude his argument is waived. See State
v. Thomas, 2020 ND 30, ¶ 15, 938 N.W.2d 897 (stating a party who fails to
argue obvious error on appeal waives the argument).
V
[¶10] Michael Brockmeyer argues the district court erred by denying his
motion to modify primary residential responsibility. The standard of review
for modifying residential responsibility is well established:
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. 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.
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…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.”
Stoddard v. Singer, 2021 ND 23, ¶¶ 6-7, 954 N.W.2d 696 (quoting Vandal v.
Leno, 2014 ND 45, ¶ 6, 843 N.W.2d 313) (citations omitted).
[¶11] The district court made detailed findings under the best interest factors
when denying Michael Brockmeyer’s motion to modify residential
responsibility. After a review of the entire record, we conclude the court’s
findings were not clearly erroneous and we are not left with a definite and firm
conviction a mistake has been made. We affirm under N.D.R.App.P. 35.1(a)(2).
VI
[¶12] We affirm the district court’s denial of Michael Brockmeyer’s motion to
modify residential responsibility.
[¶13] Jon J. Jensen, C.J.
Daniel J. Crothers
Lisa Fair McEvers
Jerod E. Tufte
Douglas A. Bahr
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