                 Filed 06/02/20 by Clerk of Supreme Court

                  IN THE SUPREME COURT
                  STATE OF NORTH DAKOTA

                                2020 ND 126

Trevor Rustad,                        Plaintiff, Appellant, and Cross-Appellee
      v.
Mary Baumgartner,                   Defendant, Appellee, and Cross-Appellant



                                No. 20190276

Appeal from the District Court of Stark County, Southwest Judicial District,
the Honorable William A. Herauf, Judge.

AFFIRMED.

Opinion of the Court by VandeWalle, Justice.

Joshua Nyberg, Fargo, ND, for plaintiff, appellant, and cross-appellee.

Jennifer M. Gooss, Beulah, ND, for defendant, appellee, and cross-appellant.
                          Rustad v. Baumgartner
                               No. 20190276

VandeWalle, Justice.

      Trevor Rustad appealed from an amended judgment modifying a
previous parenting plan. Mary Baumgartner cross-appealed from an order
denying her motion to modify parenting time. We affirm.

                                       I

      The parties to this action have two minor children together, L.J.B., born
in 2017, and L.B.R., born in 2015. The district court awarded primary
residential responsibility to Baumgartner and parenting time to Rustad. The
court’s parenting plan provided:

      Regular Parenting Schedule. Mary shall have [L.B.R.] and L.J.B.
      in her primary care. Trevor shall have parenting time with the
      children every other weekend.

      a. Until the Child(ren) are three (3) years old, Trevor’s parenting
      time shall be up to eight (8) hours a day every other weekend, with
      no overnight parenting time. However, until L.J.B. is nine (9)
      months old, parenting time shall be in up to four (4) hour
      increments. All parenting time shall be in Glasgow, MT, unless
      otherwise agreed by the parties.

      b. Once the child(ren) are three (3) years old, Trevor shall have
      parenting time every other weekend from 10:00am on Saturday to
      4:00pm on Sunday.

      c. Once the child(ren) are five (5) years old, Trevor shall have
      parenting time every other weekend for a period of 48 hours and
      additional parenting time in the summer as the parties agree.

      In Rustad v. Baumgartner, 2018 ND 268, ¶ 10, 920 N.W.2d 465, we
remanded for the district court to reconsider the parenting plan. We concluded
there was no evidence in the record indicating that giving Rustad more
parenting time would physically or emotionally harm the children. Id. at ¶ 9.
To the contrary, we noted the district court “affirmatively found the absence of


                                       1
such risks” and concluded the parenting time schedule could not reasonably be
expected to maintain a parent-child relationship between Rustad and the
children. Id. at ¶ 10. We stated, “The court’s highly restrictive weekend
visitation is compounded by its failure to grant extended summer visitation,
which it left to Baumgartner’s discretion.” Id. at ¶ 9.

      On remand the district court did not modify section a of the parenting
plan. The court did modify section b to provide:

      Once the children are three (3) years old, Trevor shall have
      parenting time every other weekend from Thursday at 6:00 p.m.
      until Sunday at 4:00pm. Trevor shall exercise his parenting time
      wherever Trevor deems appropriate.

Because of the change to section b, the court removed section c of the original
parenting plan. The court also awarded Rustad additional summer parenting
time:

      Summer Parenting Time.
      1. Until the children start school Trevor shall, in addition to his
      regular parenting time, have two, two (2) week blocks of parenting
      time that he may exercise during the summer months. The parties
      shall mutually agree as to when Trevor shall exercise his
      parenting time each summer.
      2. Once the children begin school, Trevor shall, in addition to his
      regular parenting time, have summer parenting time beginning at
      6:00 p.m. on the Sunday after the last day of school and ending six
      (6) weeks later at 6:00 p.m. Mary shall be entitled to have
      parenting time every other weekend in Dickinson if she so chooses.

      After the district court issued its amended parenting plan, both parties
moved the court for reconsideration. Additionally, Baumgartner made a
motion to modify parenting time and requested an evidentiary hearing.
Baumgartner argued the amended parenting plan was not in the best interests
of the children because it would require them to miss a day of school every
other week when Rustad exercised his parenting time. Baumgartner
contended the children reaching school age constituted a material change in
circumstances not considered by the district court. After holding a hearing, the


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district court determined Baumgartner failed to establish a material change in
circumstances had occurred and denied her motion.

                                       II

      Rustad argues the district court did not adhere to this Court’s mandate
on remand. Rustad’s argument involves the law of the case doctrine and, more
specifically, the mandate rule.

      Generally, the law of the case is defined as the principle that if an
      appellate court has passed on a legal question and remanded the
      case to the court below for further proceedings, the legal question
      thus determined by the appellate court will not be differently
      determined on a subsequent appeal in the same case where the
      facts remain the same. In other words, the law of the case doctrine
      applies when an appellate court has decided a legal question and
      remanded to the district court for further proceedings, and a party
      cannot on a second appeal relitigate issues which were resolved by
      the Court in the first appeal or which would have been resolved
      had     they    been    properly     presented     in    the    first
      appeal. The mandate rule, a more specific application of law of the
      case, requires the trial court to follow pronouncements of an
      appellate court on legal issues in subsequent proceedings of the
      case and to carry the appellate court’s mandate into effect
      according to its terms. . . . and we retain the authority to decide
      whether the district court scrupulously and fully carried out
      our mandate’s terms.

Carlson v. Workforce Safety & Ins., 2012 ND 203, ¶ 16, 821 N.W.2d 760
(citations and quotations omitted).

      We remanded the case for the district court to reconsider its parenting
plan, specifically addressing Rustad’s weekend and summer parenting time.
On remand the district court awarded Rustad two more days of additional
parenting time every other weekend, and allowed Rustad to exercise his
weekend parenting time outside of Glasgow, MT. The district court also
awarded Rustad two weeks of summer parenting time until the children begin
school, and six weeks of summer parenting time after the children begin school.
The amended parenting plan provides Rustad considerably more parenting


                                       3
time and more flexibility in exercising his parenting time than the original
parenting plan. The district court carried out the terms of our mandate.

                                     III

      Baumgartner argues the district court erred in denying her motion to
modify the parenting plan because a material change in circumstances had
occurred since we remanded to the district court. We have explained our
standard for reviewing a district court’s decision to modify parenting time:

           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.

            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

                                      4
      parent, and a parenting time schedule that causes conflict between
      the parents and behavior problems in the child. See Green v.
      Swiers, 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).

Konkel v. Amb, 2020 ND 17, ¶¶ 6-7, 937 N.W.2d 540.

      The fact that the children are aging is not something new that has
occurred since entry of either the original or the amended parenting plan.
Moreover, the district court specifically contemplated the children reaching
school age and how the amended parenting plan would impact their school
attendance and participation in extracurricular activities. In the amended
parenting plan, the court awarded Rustad more parenting time “once the
children begin school.” And in its order denying the parties’ motions for
reconsideration, the court stated “the complicating factor of school time” will
be an issue the parties will have to work through going forward. The district
court’s finding that no material change of circumstances existed since entry of
the prior judgments is not clearly erroneous. Baumgartner’s additional
arguments alleging a material change in circumstances are without merit.




                                      5
                                       IV

     We affirm the amended judgment and order denying Baumgartner’s
motion to modify parenting time.

      Gerald W. VandeWalle
      Jerod E. Tufte
      Daniel J. Crothers
      Jon J. Jensen, C.J.

McEvers, Justice, concurring specially.

      I concur in the result based on the standard of review, however I do so
reluctantly. The district court made specific findings to support its decision,
including that Rustad at times elected to put his parenting time with the
children behind his recreational activities and Baumgartner demonstrated a
willingness to place the children and their developmental needs ahead of any
recreational activities. These findings are not clearly erroneous.

       Even after remand and modification of the parenting time schedule, I am
troubled by the restriction of overnight parenting time until the younger child
is three years of age. The district court noted in its order on remand, that had
these parties been living in the same town at the time of the divorce, it probably
would have granted equal residential responsibility, but did not based on the
250 mile distance between the parties’ residences. It is difficult to reconcile
this statement with not allowing overnight parenting time until the children
were three years old. Part of the underlying issue with overnights was
Baumgartner chose to breastfeed the children. I do not want this opinion to
send the signal that the mother can undermine the father’s parenting time by




                                        6
choosing to breastfeed. Although the court mentions it was unsure if
breastfeeding is still an issue, it appears this factored into the court’s decision.

       While I agree based on this record the district court should be affirmed,
courts should be careful not to fall back to applying the “tender years doctrine”
that young children regardless of gender belong with their mother. See Rustad
v. Rustad, 2014 ND 148, ¶ 12, 849 N.W.2d 607 (discussing this Court no longer
views the “tender years doctrine” with favor). There should be no gender bias
in deciding issues relating to parenting rights and responsibilities regardless
of the children’s age. Id.

[¶15] Lisa Fair McEvers




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