Konkel v. Amb , 2020 ND 17 ( 2020 )

Filed 1/23/20 by Clerk of Supreme Court
IN THE SUPREME COURT
STATE OF NORTH DAKOTA
2020 ND 17
Blaine Dylan Konkel, Plaintiff and Appellant
v.
Courtney Eileen Amb, Defendant
No. 20190152
Appeal from the District Court of Steele County, East Central Judicial District,
the Honorable Steven L. Marquart, Judge.
AFFIRMED.
Opinion of the Court by McEvers, Justice.
Blaine D. Konkel, Fort Collins, CO, plaintiff and appellant.
Konkel v. Amb
No. 20190152
McEvers, Justice.
[¶1] Blaine Konkel appeals from an amended judgment entered after the
district court denied his request to modify his parenting time with the child he
has with Courtney Amb and clarified the location of the parenting time
exchanges. Konkel argues the district court erred by finding a material change
in circumstances does not exist and also by amending the parenting plan
without finding a material change in circumstances. We affirm.
I
[¶2] Konkel and Amb have one minor child together, who was born in 2015.
Konkel lives in Colorado and Amb lives in North Dakota. In 2016, a judgment
was entered, ordering Amb have primary residential responsibility of the child.
Konkel was awarded parenting time with the child for up to 72 hours per
month in North Dakota, up to four weeks per year in Colorado once the child
turned two years old, and Thanksgivings in odd years and Christmases in even
years. The district court also ordered Konkel was responsible for all expenses
related to parenting time.
[¶3] In October 2018, Konkel moved for “visitation assistance,” requesting the
district court modify his parenting time. He argued changes in the parties’
employment and the child’s age were material changes of circumstance, the
current parenting plan was vague, the prior judgment failed to include a
provision for the transportation and exchange of the child, and he exercised all
of the Colorado parenting time ordered. He requested the court order
parenting time for additional holidays and that he have parenting time in
Colorado in June, July, and August until the child is school age and then he
have parenting time during the entire summer break. He also requested the
court provide more detailed terms for parenting time transportation and
exchanges.
[¶4] After a hearing, the district court denied Konkel’s motion, finding he
failed to show a material change in circumstances that would necessitate a
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parenting time modification. However, the court ordered the transportation
provision of the judgment be clarified to specify the exchange location.
II
[¶5] Konkel argues the district court erred by finding there was no material
change in circumstances and denying his motion to modify parenting time. He
claims the child’s age and developmental needs and the changes in the parties’
employment are material changes justifying a modification of parenting time.
[¶6] A district court’s decision on parenting time is a finding of fact, which
will not be reversed on appeal unless it is clearly erroneous. Curtiss v. Curtiss,
2016 ND 197, ¶ 10, 886 N.W.2d 565. A finding of fact is clearly erroneous if
there is no evidence to support it, it is induced by an erroneous view of the law,
or we are left with a definite and firm conviction a mistake has been made. Id.
[¶7] After an initial award of primary residential responsibility has been
made, parenting time is governed by N.D.C.C. § 14-05-22(2). Curtiss, 2016 ND
197, ¶ 11, 886 N.W.2d 565. Under N.D.C.C. § 14-05-22(2):
[T]he 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.
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. Curtiss, 2016 ND 197, ¶
12, 886 N.W.2d 565. Material changes in circumstance are important new
facts that have occurred since entry of the prior order. Id. Whether a fact is a
material change in circumstance is dependent upon the facts of the case, but
we have previously recognized various factors that may constitute material
changes in circumstance, including a significant change in a parent’s work
schedule, the marriage of a parent, attempts to alienate the child’s affection
for the other parent, and a parenting time schedule that causes conflict
between the parents and behavior problems in the child. See Green v. Swiers,
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2018 ND 258, ¶ 15, 920 N.W.2d 471 (holding district court did not err in
modifying parenting time when there was evidence one parent attempted to
alienate child’s affection for other parent); Siewert v. Siewert, 2008 ND 221, ¶
18, 758 N.W.2d 691 (holding district court did not err in finding parent’s
remarriage was a material change when parent’s new spouse caused increased
conflict); Young v. Young, 2008 ND 55, ¶ 14, 746 N.W.2d 153 (stating a change
in a parent’s work schedule may be a material change); Reinecke v. Griffeth,
533 N.W.2d 695, 698-99 (N.D. 1995) (holding a material change existed when
the parenting time schedule caused conflict and behavior problems in the
child).
[¶8] The district court denied Konkel’s motion. The court found, “[Konkel]
has failed to show a material change in circumstance which would necessitate
a modification of the parties’ parenting time schedule.” The court further
orally explained at the end of the hearing that the child’s age and development
were not material changes because they were anticipated by the prior
judgment and the judgment addressed those circumstances. The court also
found the changes in the parties’ employment were not material changes.
[¶9] Konkel argues the child’s current age and developmental needs are
material changes in circumstance justifying modification of parenting time.
He contends the child was only one year old when the prior order was entered
and she is now four years old. He alleges there is no way the court could have
foreseen that he would use all of his allowed parenting time in Colorado, the
child has begun to develop bonds with him and his family, and it would cause
irreparable harm not to allow him to have more parenting time in Colorado.
[¶10] The prior parenting time order took into consideration the child’s age
and set different visitation terms based on the age, stating:
A. Blaine shall have up to 72 hours per month of parenting time
in North Dakota. These may be overnight visits.
B. When [the child] turns two years old, Blaine will have
parenting time with [the child] for up to four weeks per year
in Colorado, to be exercised in periods not exceeding two
3
weeks. Blaine will provide Courtney a 30-day notice of the
parenting time he intends to exercise in Colorado.
C. When [the child] is of school age, the parenting time set forth
above must be exercised when [the child] is not in school.
D. Once [the child] is two years old, Blaine will have
Thanksgiving with [the child] in odd years and Christmas
with [the child] in even years. Courtney will have
Thanksgiving with [the child] in even years, and Christmas
with [the child] in odd years.
The district court considered how the parenting time schedule should change
as the child aged. The child’s increased age and development were anticipated
by the court when the prior judgment was entered. Under the facts of this
case, the evidence supports the court’s finding that the child’s current age and
developmental needs are not a material change in circumstances.
[¶11] Konkel argues the changes in the parties’ employment is a material
change in circumstances. He contends he is now self-employed, he started his
own fencing and construction business, and he is in the process of starting a
property management business. He claims this change in his employment will
allow for more flexibility during the day but less flexibility in traveling to North
Dakota to pick up the child once he starts managing properties because he will
be on call 24/7.
[¶12] The district court found the change in employment was not a material
change in circumstances. A change in a parent’s work schedule may be a
material change in circumstances. See Young v. Young, 2008 ND 55, ¶ 14, 746
N.W.2d 153. However, Konkel’s argument is based on the potential for
problems in the future if he starts managing properties, but there was no
evidence the change in employment currently had any impact on parenting
time. Any argument about the possibility of future changes negatively
impacting parenting time was speculative. The evidence supports the court’s
finding that a change in employment did not constitute a material change in
circumstance.
[¶13] Evidence also established Konkel has not exercised all of the parenting
time he is currently awarded, particularly the 72-hours of parenting time he is
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entitled to each month in North Dakota. He contends the costs to travel back
and forth from Colorado to North Dakota can be prohibitively expensive and
time consuming, which makes exercising the monthly parenting time nearly
impossible. Konkel admitted he currently does not receive a reduction in his
child support for parenting time travel expenses. The child support guidelines
allow a court to modify child support from the presumed correct amount under
the guidelines for parenting time travel expenses. See N.D. Admin. Code § 75-
02-04.1-09(2)(j). There is nothing precluding Konkel from moving to modify
his child support obligation to allow for a reduction for travel expenses.
[¶14] The evidence supports the district court’s findings. Konkel failed to
demonstrate a material change in circumstances occurred that was sufficient
to justify a modification of parenting time. We affirm the district court’s
decision.
III
[¶15] Konkel argues the district court erred by amending the parenting plan
to specify the location of the parenting time exchanges after finding he failed
to prove a material change in circumstances.
[¶16] The district court found the parties agreed that disputes arose around
the location of the parenting time exchanges. The court amended the
parenting time provision of the judgment to include the location of the
parenting time exchanges, stating, “Unless otherwise agreed by the parties, all
exchanges of [the child] shall take place in Jamestown, Devils Lake, Fargo or
Grand Forks.”
[¶17] Konkel admits the parties had disagreements about where to exchange
the child, including occasions in which he was able to get cheaper flights to
Bismarck or Watertown, South Dakota and Amb refused to meet him in those
locations. Amb testified during the hearing that she would like the court to
clarify the exchange provision of the judgment.
[¶18] The initial judgment did not specify where exchanges of the child would
occur and only ordered Konkel would be responsible for all expenses related to
5
parenting time. A district court may clarify a judgment that is vague,
uncertain, or ambiguous. Orvedal v. Orvedal, 2003 ND 145, ¶ 4, 669 N.W.2d
89. This Court has said, “When a divorce decree fails to specify some
particulars and uncertainties in the decree arise from subsequent events,
clarification of the decree is often appropriate.” Id. The judgment did not
specify where parenting time exchanges would occur and there was evidence
the uncertainty created conflict between the parties. The court properly
clarified the judgment to specify locations where parenting time exchanges
would occur.
IV
[¶19] Konkel argues the district court’s initial judgment does not comply with
the minimum required provisions for a parenting plan under N.D.C.C. § 14-09-
30(2). He contends the judgment does not include required provisions for
parenting time related to days off from school, birthdays, weekends and
weekdays, summers, and vacation planning.
[¶20] To the extent Konkel argues the terms of the initial judgment do not
comply with N.D.C.C. § 14-09-30(2), those issues should have been raised in an
appeal of the judgment. Konkel did not appeal the initial judgment. Therefore,
Konkel is precluded from raising those issue in this appeal. See Glass v. Glass,
2018 ND 14, ¶¶ 5, 8, 906 N.W.2d 81 (stating this Court will not hear arguments
in the second appeal that could have been presented in a prior appeal); Tom
Beuchler Const. v. City of Williston, 413 N.W.2d 336, 338-39 (N.D. 1987)
(stating a party may not present issues in a second appeal that would have
been resolved in a prior appeal if they had been presented).
V
[¶21] Konkel argues N.D.C.C. §§ 14-05-22(2) and 14-09-06(2) are
unconstitutionally vague. He claims they offer no guidance on how to allocate
parenting time. He generally states these laws violate the separation of
powers and due process.
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[¶22] Konkel briefly argued to the district court that N.D.C.C. § 14-05-22(2) is
unconstitutionally vague because “it doesn’t really specify anything and that
falls to case precedent.” He also briefly argued the best interests of the child
standard is unconstitutionally vague. Konkel did not raise this issue in a
motion or brief to the district court and did not properly raise the argument
during the hearing.
[¶23] “’A party must do more than submit bare assertions to adequately raise
constitutional issues.’” Hagen v. Horst, 2019 ND 37, ¶2, 923 N.W.2d 106
(quoting Riemers v. O’Halloran, 2004 ND 79, ¶ 6, 678 N.W.2d 547). Issues not
presented to the district court will not be considered for the first time on
appeal. Peters-Riemers v. Riemers, 2001 ND 62, ¶ 23, 624 N.W.2d 83. Konkel’s
arguments about the constitutionality of N.D.C.C. §§ 14-05-22(2) and 14-09-
06(2) were raised for the first time on appeal and will not be considered.
[¶24] Moreover, the United States Supreme Court has indicated the best
interests of the child is an appropriate standard to use in determining custody
issues between parents and does not violate due process. See Reno v. Flores,
507 U.S. 292, 303-04 (1993) (stating, “‘The best interests of the child,’ a
venerable phrase familiar from divorce proceedings, is a proper and feasible
criterion for making the decision as to which of two parents will be accorded
custody.”); Pac. Mut. Life Ins. Co. v. Haslip, 499 U.S. 1, 20 (1991) (indicating
the discretion allowed in deciding “the best interests of the child” satisfies due
process as long as it is exercised within reasonable constraints).
VI
[¶25] We have considered the remaining issues and arguments raised and
have determined they are either meritless or are unnecessary to the outcome
of the case. We affirm the amended judgment.
[¶26] Lisa Fair McEvers
Gerald W. VandeWalle
Daniel J. Crothers
Jerod E. Tufte
Jon J. Jensen, C.J.
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