                Filed 11/20/19 by Clerk of Supreme Court

                  IN THE SUPREME COURT
                  STATE OF NORTH DAKOTA

                                2019 ND 275

Becky Jo Krump-Wootton,
f/k/a Becky Jo Krump,                 Plaintiff, Appellant, and Cross-Appellee
      v.
Daniel Paul Krump,                  Defendant, Appellee, and Cross-Appellant
      and
State of North Dakota,                        Statutory Real Party in Interest

                                No. 20190089

Appeal from the District Court of Richland County, Southeast Judicial District,
the Honorable Bradley A. Cruff, Judge.

AFFIRMED.

Opinion of the Court by Jensen, Justice.

William Woodworth, Bismarck, N.D., for plaintiff, appellant, and cross-
appellee.

Leah M. Warner, Fargo, N.D., for defendant, appellee, and cross-appellant.
                         Krump-Wootton v. Krump
                              No. 20190089

Jensen, Justice.

[¶1] Becky Jo Krump-Wootton [Becky Krump-Wootton], appeals from a
district court order denying her request to change the school location for the
parties’ children and denying her request to modify the parties’ parenting time.
Daniel Paul Krump [Daniel Krump] cross-appeals the denial of his request for
modification of primary responsibility. We affirm.

                                       I

[¶2] The parties were divorced in 2012. Becky Krump-Wootton was awarded
primary residential responsibility of the parties’ two children and Daniel
Krump was allocated parenting time with the children. The judgment requires
the parties to agree on the children’s education. The children have attended
school in Hankinson, North Dakota.

[¶3] Becky Krump-Wootton has remarried and her husband lives in Lisbon,
North Dakota, about 65 miles from Hankinson. Believing Becky Krump-
Wootton would remove the children from school in Hankinson and enroll them
in school in Lisbon, Daniel Krump filed a motion seeking to enforce the
provision of the judgment requiring the parties to agree on the children’s
education to prevent Becky Krump-Wootton from enrolling the children in
Lisbon. Daniel Krump also sought modification of primary residential
responsibility. Becky Krump-Wootton opposed the modification of primary
residential responsibility and filed a motion seeking to modify Daniel Krump’s
parenting time to accommodate enrolling the children in school in Lisbon.

[¶4] The court found a prima facie case for modification of primary residential
responsibility as required by N.D.C.C. § 14-09-06.6 and scheduled a combined
hearing for resolution of all of the pending motions. At the beginning of the
hearing, Becky Krump-Wootton requested the court approve the enrollment of
the children in school in Lisbon.




                                       1
[¶5] Following the evidentiary hearing, the court issued its findings,
conclusions of law, and order denying all of the pending motions. Daniel Krump
moved to amend the findings as follows: 1) removing references to Daniel
Krump’s motion to modify primary residential responsibility as an
“alternative” request for relief to the children staying in school in Hankinson;
2) finding a significant or material change in circumstances had occurred
notwithstanding the children’s continued attendance in the Hankinson Public
School; 3) finding it is in the children’s best interests for Daniel Krump to be
awarded primary residential responsibility of the children; and 4) to
specifically state that the children shall continue to attend the Hankinson
Public School. The court granted Daniel Krump’s motion to amend the findings
with the exception of it being in the best interests of the children to modify
primary residential responsibility.

                                       II

[¶6] Daniel Krump filed a motion seeking to dismiss Becky Krump-Wootton’s
appeal asserting she failed to comply with several of our rules of appellate
procedure. See N.D.R.App.P. 3(a). In the alternative to dismissal, Daniel
Krump seeks a recovery of attorney fees. See N.D.R.App.P. 13.

[¶7] Failure to adhere to our rules of appellate procedure can result in the
dismissal of an appeal. N.D.R.App.P. 3(a)(2). While dismissal is permissible,
this Court has been reluctant to dismiss an appeal and generally desires to
reach the merits of a case. Latendresse v. Latendresse, 283 N.W.2d 70, 71
(N.D.1979). “Whether to administer sanctions under N.D.R.App.P. 13 for
noncompliance with the Rules of Appellate Procedure is discretionary with this
Court.” Silbernagel v. Silbernagel, 2007 ND 124, ¶ 21, 736 N.W.2d 441.

[¶8] Although we agree with Daniel Krump regarding Becky Krump-
Wootton’s failure to adhere to our rules of appellate procedure, Becky Krump-
Wootton’s issues on appeal significantly overlap with the issues raised by
Daniel Krump in his cross-appeal. The significant overlap between the parties’
issues reduces the justification for dismissal of the appeal because Daniel
Krump would have likely filed substantially the same materials and engaged
in similar briefing regardless of Becky Krump-Wootton’s failure to adhere to

                                       2
our rules. Under these circumstances we decline to dismiss Becky Krump-
Wootton’s appeal and decline to exercise our discretion to award Daniel Krump
a recovery of attorney fees.

                                      III

[¶9] The district court’s order considered and analyzed collectively Becky
Krump-Wootton’s motion to modify Daniel Krump’s parenting time, Becky
Krump-Wootton’s oral request to allow the children to attend school in Lisbon,
Daniel Krump’s motion to modify primary residential responsibility, and
Daniel Krump’s motion to enforce the education provision of the parties’
judgment to require the children to attend school in Hankinson. Both parties
challenge the factual findings of the district court.

[¶10] “Finding of fact, whether based on oral or documentary evidence, shall
not be set aside unless clearly erroneous, and due regard shall be given to the
opportunity of the trial court to judge the credibility of witnesses.”
N.D.R.Civ.P. 52(a)(6). We have recognized the following regarding our review
of a motion to modify parenting time:

      A district court’s decision resolving a motion to modify parenting
      time is a finding of fact, subject to the clearly erroneous standard
      of review. Harvey v. Harvey, 2016 ND 251, ¶ 4, 888 N.W.2d 543;
      Schurmann v. Schurmann, 2016 ND 69, ¶ 8, 877 N.W.2d 20. “[A]
      district court must adequately explain the evidentiary and legal
      basis for its decision, allowing the parties and this Court to
      understand the decision.” Curtiss v. Curtiss, 2016 ND 197, ¶ 13,
      886 N.W.2d 565 (quoting Estate of Nelson, 2015 ND 122, ¶ 13, 863
      N.W.2d 521). “The court’s findings are sufficient if they afford a
      clear understanding of the court’s decision and assist this Court in
      conducting its review.” Harvey, at ¶ 4 (citing Topolski v. Topolski,
      2014 ND 68, ¶ 7, 844 N.W.2d 875).

Rath v. Rath, 2018 ND 98, ¶ 7, 909 N.W.2d 666, reh’g denied. Similarly, we
have recognized the following regarding our review of a motion to modify
primary residential responsibility:




                                       3
      The district court’s ultimate decision whether to modify primary
      residential responsibility is a finding of fact, which will not be
      reversed on appeal unless it is clearly erroneous. Haag v. Haag,
      2016 ND 34, ¶ 7, 875 N.W.2d 539. A finding of fact is clearly
      erroneous if there is no evidence to support it, if it is induced by an
      erroneous view of the law, or if we are convinced, on the basis of
      the entire record, that a mistake has been made. Id. “Under the
      clearly erroneous standard, we do not reweigh the evidence nor
      reassess the credibility of witnesses, and we will not retry a
      [residential responsibility] case or substitute our judgment for a
      district court’s ... decision merely because we might have reached
      a different result.” Mowan v. Berg, 2015 ND 95, ¶ 5, 862 N.W.2d
      523 (quoting Wolt v. Wolt, 2010 ND 26, ¶ 7, 778 N.W.2d 786).

Valeu v. Strube, 2018 ND 30, ¶ 8, 905 N.W.2d 728.

[¶11] The district court considered the motions collectively, and issued
extensive findings pertaining to all of the motions. After recognizing it was not
required to apply the four Stout-Hawkinson factors to consideration of moves
within the state, the district court used those factors for guidance in
determining what would be in the children’s best interests. See Stout v. Stout,
1997 ND 61, ¶ 33, 560 N.W.2d 903 (outlining the factors applying to
consideration of an out-of-state move); Hawkinson v. Hawkinson, 1999 ND 58,
¶ 9, 591 N.W.2d 144 (modifying the factors applying to consideration of out-of-
state moves). We agree with the district court, under the circumstances of this
case, the Stout-Hawkinson factors provide appropriate guidance for
consideration of the pending motions.

[¶12] In reviewing the Stout-Hawkinson factors, the district court did not find
the prospective advantages of the move would improve the children’s quality
of life. The district court did not find Becky Krump-Wootton’s proposed move
was for purpose of defeating or deterring Daniel Krump’s direct parenting time
and found Daniel Krump’s opposition to the move to be “valid and not
motivated by ill will.” The district court also found “the move to Lisbon would
have a significant negative impact on the girls’ relationship with Daniel Krump
that cannot be maintained through longer but less frequent parenting time.”
These findings reflect consideration of the four Stout-Hawkinson factors.


                                        4
[¶13] Having considered the Stout-Hawkinson factors, the district court then
considered the best interest factors as provided by N.D.C.C. § 14-09-06.2 to
determine what would be in the best interests of the children. The factors as
provided in N.D.C.C. § 14-09-06.2 are as follows:

     a. The love, affection, and other emotional ties existing between
     the parents and child and the ability of each parent to provide the
     child with nurture, love, affection, and guidance.
     b. The ability of each parent to assure that the child receives
     adequate food, clothing, shelter, medical care, and a safe
     environment.
     c. The child’s developmental needs and the ability of each parent
     to meet those needs, both in the present and in the future.
     d. The sufficiency and stability of each parent’s home environment,
     the impact of extended family, the length of time the child has lived
     in each parent’s home, and the desirability of maintaining
     continuity in the child’s home and community.
     e. The willingness and ability of each parent to facilitate and
     encourage a close and continuing relationship between the other
     parent and the child.
     f. The moral fitness of the parents, as that fitness impacts the
     child.
     g. The mental and physical health of the parents, as that health
     impacts the child.
     h. The home, school, and community records of the child and the
     potential effect of any change.
     i. If the court finds by clear and convincing evidence that a child is
     of sufficient maturity to make a sound judgment, the court may
     give substantial weight to the preference of the mature child. The
     court also shall give due consideration to other factors that may
     have affected the child’s preference, including whether the child’s
     preference was based on undesirable or improper influences.
     j. Evidence of domestic violence. In determining parental rights
     and responsibilities, the court shall consider evidence of domestic
     violence. If the court finds credible evidence that domestic violence
     has occurred, and there exists one incident of domestic violence
     which resulted in serious bodily injury or involved the use of a
     dangerous weapon or there exists a pattern of domestic violence
     within a reasonable time proximate to the proceeding, this
     combination creates a rebuttable presumption that a parent who


                                       5
      has perpetrated domestic violence may not be awarded residential
      responsibility for the child. This presumption may be overcome
      only by clear and convincing evidence that the best interests of the
      child require that parent have residential responsibility. The court
      shall cite specific findings of fact to show that the residential
      responsibility best protects the child and the parent or other family
      or household member who is the victim of domestic violence. If
      necessary to protect the welfare of the child, residential
      responsibility for a child may be awarded to a suitable third
      person, provided that the person would not allow access to a violent
      parent except as ordered by the court. If the court awards
      residential responsibility to a third person, the court shall give
      priority to the child’s nearest suitable adult relative. The fact that
      the abused parent suffers from the effects of the abuse may not be
      grounds for denying that parent residential responsibility. As used
      in this subdivision, “domestic violence” means domestic violence as
      defined in section 14-07.1-01. A court may consider, but is not
      bound by, a finding of domestic violence in another proceeding
      under chapter 14-07.1.
      k. The interaction and inter-relationship, or the potential for inter-
      action and inter-relationship, of the child with any person who
      resides in, is present, or frequents the household of a parent and
      who may significantly affect the child’s best interests. The court
      shall consider that person’s history of inflicting, or tendency to
      inflict, physical harm, bodily injury, assault, or the fear of physical
      harm, bodily injury, or assault, on other persons.
      l. The making of false allegations not made in good faith, by one
      parent against the other, of harm to a child as defined in section
      50-25.1-02.
      m. Any other factors considered by the court to be relevant to a
      particular parental rights and responsibilities dispute.


[¶14] The district court found that factors (d), (e), and (h) favored Daniel
Krump; factors (b), (c), (f), (g), (i), (j), (k), (l) and (m) favored neither party; and
only factor (a) favored Becky Krump-Wootton. On the basis of those findings,
the district court found “[i]t is in the best interest of AJK and CCK for Becky
Krump-Wootton to continue to have primary residential responsibility and for
Daniel Krump’s parenting time to remain unchanged. Also that the girls
continue attending Hankinson public school.”

                                           6
[¶15] Our standard of review on appeal with regard to the issues raised by the
parties is whether the district court’s findings are clearly erroneous. Upon
reviewing the record and the district court’s order, we conclude the findings
were not induced by an erroneous view of the law and evidence exists in the
record to support the court’s findings, and we are not left with a definite and
firm conviction the court made a mistake in evaluating the best interest
factors. Our function as an appellate court is not to reweigh or reevaluate the
evidence, or to reassess witness credibility, and we affirm the district court’s
findings.

                                      IV

[¶16] Because Daniel Krump’s motion for modification of primary residential
responsibility was more than two years after the entry of a prior order
establishing primary residential responsibility, in addition considering the
best interests would be met by the requested modification, the district court
was first required to determine whether there had been a material change of
circumstances. Valeu, 2018 ND 30, ¶ 9. In its original order the district court
determined there had not been a material change in circumstances but
analyzed the best interest factors, because the district court believed it was
“both necessary in its analysis of the proposed change in enrollment and
helpful to engage in a discussion of the factors set forth in NDCC 14-09-06.2 to
provide additional rationale for the court’s decision.” The district court
subsequently granted Daniel Krump’s motion to amend the findings to indicate
there had been a material change in circumstances but reaffirmed its finding
the best interests of the children were served by denying the motion to modify
primary residential responsibility.

[¶17] Daniel Krump has appealed the denial of his motion to amend regarding
the district court’s determination that it would not be in the children’s best
interests to grant his motion to modify primary residential responsibility. As
outlined above, we conclude the district court’s findings regarding the best
interests of the children are not clearly erroneous and we affirm the denial of
the motion to amend to include additional findings on the best interests of the
children.


                                       7
[¶18] The district court’s order considered and analyzed collectively Becky
Krump-Wootton’s motion to modify Daniel Krump’s parenting time, Becky
Krump-Wootton’s oral request to allow the children to attend school in Lisbon,
Daniel Krump’s motion to modify primary residential responsibility, and
Daniel Krump’s motion to enforce the education provision of the parties’
judgment to require the children to attend school in Hankinson. We affirm the
district court’s judgment denying Becky Krump-Wootton’s motion to modify
parenting time, Daniel Krump’s motion to modify primary residential
responsibility, and its amendment of the judgment providing the children will
attend school in Hankinson.

[¶19] Jon J. Jensen
      Daniel J. Crothers
      Lisa Fair McEvers
      Jerod E. Tufte
      Gerald W. VandeWalle, C.J.




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