                 Filed 3/13/19 by Clerk of Supreme Court
                        IN THE SUPREME COURT
                        STATE OF NORTH DAKOTA


                                 2019 ND 75___


Jessica Purdy,                                               Plaintiff and Appellee

      v.

Daren Purdy,                                              Defendant and Appellant
       and
State of North Dakota                               Statutory Real Party In Interest


                                  No. 20180133


      Appeal from the District Court of Cass County, East Cemtra; Judicial District,
the Honorable Steven E. McCullough, Judge.

      AFFIRMED.

      Opinion of the Court by Crothers, Justice.

      Jason W. McLean, Fargo, ND, for plaintiff and appellee.

      Daren Purdy, self-represented, Fargo, ND, defendant and appellant.
                                   Purdy v. Purdy
                                    No. 20180133


       Crothers, Justice.
[¶1]   Daren Purdy appeals from an amended judgment after the district court denied
his motion to modify primary residential responsibility for his two minor children and
granted his motion to modify parenting time. He argues the district court erred in
awarding Jessica Purdy primary residential responsibility of the children. We affirm
the amended judgment, concluding the district court did not clearly err in denying his
motion to modify primary residential responsibility.


                                           I
[¶2]   Daren and Jessica Purdy were divorced in a May 2014 default judgment
awarding Jessica Purdy primary residential responsibility of the parties’ two minor
children, granting Daren Purdy parenting time, and ordering him to pay Jessica Purdy
$818 per month in child support. Daren Purdy was awarded parenting time on
alternating weekends from Friday at 4:00 p.m. to Sunday at 8:00 p.m., on Wednesday
from 4:00 p.m. to 8:00 p.m., on specified holidays alternating every other year and for
one week of uninterrupted parenting time during June, July and August.
[¶3]   In June 2017 Daren Purdy moved to modify primary residential responsibility
and parenting time for the parties’ children. His motion sought an order granting him
primary, or at least equal residential responsibility. He alternatively sought increased
parenting time. The district court ruled Daren Purdy established a prima facie case
for modification and ordered an evidentiary hearing. See N.D.C.C. § 14-09-06.6(4).
[¶4]   After an evidentiary hearing, the district court denied Daren Purdy’s motion
to modify primary residential responsibility, modified the parties’ parenting time and
ordered him to pay Jessica Purdy $932 per month in child support. In denying the
motion to modify primary residential responsibility, the court analyzed the best
interest factors and concluded most favored neither party, but factors (b), (d), (e) and

                                           1
(h) favored Jessica Purdy. The court modified Daren Purdy’s parenting time to
include alternating weekends from Friday at 4:00 p.m. to Sunday at 4:00 p.m., one
night a week from 4:00 p.m. to 8:00 a.m. the next morning or when school starts,
alternating weeks during June, July and August, and specified holidays alternating
every other year.


                                           II
[¶5]   Daren Purdy argues the district court erred in awarding Jessica Purdy primary
residential responsibility of the children. He contends the court’s decision is not in
the best interests of the children and he should have been granted at least equal
residential responsibility for the children. He argues the court did not address his
claim that Jessica Purdy was in possession of a controlled substance near the children,
the court erred in finding Jessica Purdy’s statements about his parenting time were
true and accurate, and the court erred in finding a “boiler plate” parenting schedule
was in the children’s best interests. He argues the best interest factors should be
reevaluated with consideration given to his evidence that he is an involved parent and
there is no plausible reason why equal residential responsibility would cause harm to
the children.1
[¶6]   Jessica Purdy responds that the district court’s findings on the best interests of
the children are not clearly erroneous. She argues that she adequately explained the
presence of a prescription pill near the children and that Daren Purdy essentially seeks
to have this Court reweigh evidence and reevaluate the district court’s findings on the
best interests of the children.
[¶7]   A party moving to modify primary residential responsibility has the burden of
proof. N.D.C.C. § 14-09-06.6(8). A motion for modification of primary residential


       1
        During oral argument to this Court, Daren Purdy claimed for the first time that
he did not receive proper legal representation in the proceeding to modify primary
residential responsibility. We generally do not consider issues raised for the first time
at oral argument. E.g., Cavendish Farms, Inc. v. Mathiason Farms, Inc.,
2010 ND 236, ¶ 5, 792 N.W.2d 500.
                                           2
responsibility filed more than two years after an earlier order establishing residential
responsibility is governed by N.D.C.C. § 14-09-06.6(6), which provides:
       “The court may modify the primary residential responsibility after the
       two-year period following the date of entry of an order establishing
       primary residential responsibility if the court finds:
             a.     On the basis of facts that have arisen since the
                    prior order or which were unknown to the court at
                    the time of the prior order, a material change has
                    occurred in the circumstances of the child or the
                    parties; and
             b.     The modification is necessary to serve the best
                    interests of the child.”
[¶8]   Under N.D.C.C. § 14-09-06.6(6), a district court may modify primary
residential responsibility if it finds: (1) a material change in circumstances has
occurred; and (2) a modification is necessary to serve the child’s best interests.
Seibold v. Leverington, 2013 ND 173, ¶¶ 10-11, 837 N.W.2d 342. To find a
modification is in the child’s best interests, the court must evaluate the best interests
factors under N.D.C.C. § 14-09-06.2(1)(a)-(m):
       “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.


                                           3
       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. . . .
       k.     The interaction and inter-relationship, or the potential for
              interaction 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.”
[¶9]   In Seibold, we explained that courts considering a motion to modify primary
residential responsibility must analyze the best interest factors in light of two
additional considerations:
       “First, the best interests of the child factors must be gauged against the
       backdrop of the stability of the child’s relationship with the custodial
       parent, because that stability is the primary concern in a change of
       custody proceeding. Second, after balancing the child’s best interests
       and stability with the custodial parent, the trial court must conclude that
       a change in the status quo is required. A child is presumed to be better
       off with the custodial parent, and close calls should be resolved in favor
       of continuing custody. A change should only be made when the
       reasons for transferring custody substantially outweigh the child’s
       stability with the custodial parent.”
2013 ND 173, ¶ 11, 837 N.W.2d 342 (quoting Vining v. Renton, 2012 ND 86, ¶ 17,
816 N.W.2d 63).
[¶10] A district court’s decision on a motion to modify primary residential
responsibility is a finding of fact, subject to the clearly erroneous standard of review
under N.D.R.Civ.P. 52(a). Seibold, 2013 ND 173, ¶ 12, 837 N.W.2d 342. “A finding
of fact is clearly erroneous if there is no evidence to support it, if the finding is
                                           4
induced by an erroneous view of the law, or if the reviewing court is left with a
definite and firm conviction a mistake has been made.” Id. Under the clearly
erroneous standard for appellate court review of a district court’s findings, we “must
give due regard to the trial court’s opportunity to judge the witnesses’ credibility.”
N.D.R.Civ.P 52(a)(6). Under that standard, we view the evidence in the light most
favorable to the findings, and we do not reweigh conflicting evidence, reassess
witness credibility, retry the case or substitute our judgment for the district court’s
decision. Seibold, at ¶ 13. A choice between two permissible views of the evidence
is not clearly erroneous, and simply because we may have viewed the evidence
differently does not entitle us to reverse the district court. Id. We have recognized
“[o]ur deferential review is ‘especially applicable for a difficult primary residential
responsibility decision involving two fit parents.’” Id. (quoting Hammeren v.
Hammeren, 2012 ND 225, ¶ 8, 823 N.W.2d 482). In Molitor v. Molitor, we explained
a basis for our deferential review:
              “Our standard of review also allows us to reverse if our review
       of the entire record leaves us with a definite and firm conviction a
       mistake has been made. Our standard of review does not allow us to
       reverse the trial court merely because of the possibility we may have
       decided a case differently. As we have said, when dealing with
       findings of fact:
              [R]eading a cold transcript is no substitute for hearing
              and observing witnesses as they testify. Tones of voice,
              hesitations, confusion, surprise, and other telltale
              indications of mental state convey to trial judges and
              jurors much that is lost to appellate judges. If we were to
              judge from the cold print, we might decide many cases
              differently than trial judges do, and this case might be
              one of them. But, if we decided differently, we would
              have no assurance that ours was the better decision.”
2006 ND 163, ¶ 10, 718 N.W.2d 13 (quoting City of Jamestown v. Neumiller,
2000 ND 11, ¶ 12, 604 N.W.2d 441).
[¶11] Here, the district court’s findings do not mention Daren Purdy’s claim about
Jessica Purdy’s possession of a controlled substance near the children. However, the
court explicitly found neither parent had any significant moral failings that would

                                          5
impact the children. From this finding the court ostensibly believed Jessica Purdy’s
explanation that almost two years before Daren Purdy’s motion she inadvertently left
a bottle in her car with one prescription pill for her gastrointestinal pain. The court
did not err as a matter of law by not explicitly mentioning the prescription pill in its
findings on the best interest factors.
[¶12] The court considered each of the best interest factors under N.D.C.C. §
14-09-06.2(1)(a)-(m) and found that most favored neither party, but factors (b), (d),
(e) and (h) favored Jessica Purdy:
       “B.    The ability of each parent to assure that the child receives
              adequate food, clothing, shelter, medical care, and a safe
              environment.
               “Both parents are gainfully employed and reside in suitable
       residences. Jessica is the one that has historically been the one to
       schedule and ensure that the children have gotten to medical
       appointments. Daren emphasized heavily an incident involving pain in
       the girl’s ‘bottom.’ He complains that this is a result of the girl’s
       alleged poor hygiene practices when they are with Jessica and that
       Jessica does nothing to fix this situation. Daren’s mother testified that
       this condition has been ongoing since the date of the parties’ separation.
       The only documentary evidence in the record on this point is a text
       message exchange on September 27, 2016. Exhibit 90. In this
       exchange, Jessica indicated that she was aware of the problem and had
       contacted medical professionals about it, but was told there was no
       urgency. Further, she indicated that she had scheduled an appointment
       with the children’s pediatrician within two weeks, at which point the
       issue would be addressed. Daren did not contest this evidence.
       Frankly, Daren and his witnesses appear to have greatly exaggerated
       their testimony in this regard, rendering Jessica’s version of events
       more credible than Daren’s.
              “There was also testimony that Jessica allowed the children to
       be at home after school without supervision. Jessica testified credibly
       and without being impeached that this may have happened very
       infrequently, due to a late babysitter. Jessica further explained that she
       retained a babysitter to be at her home by 3:10 p.m. during the school
       year and that the children did not get home prior to that time. If the
       babysitter was late or did not show up, she had a back-up plan that they
       could go [to] a neighbor’s house, at which resided a stay-at-home dad.
       Further, [one child] had a key to get into Jessica’s home. It appears

                                           6
that, if anything, Jessica has exercised reasonable prudence and care to
make sure the children are supervised. This factor favors Jessica.
....
“D.    The sufficiency and stability of each parent’s home
       environment, the impact of extended family, 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.
        “Since the divorce, the children have resided primarily with
Jessica (pursuant to the terms of the JUDGMENT BY DEFAULT).
Jessica has resided at the present location for two years. The girls are
more used to Jessica’s residence. Daren indicated that if he were to
prevail in this motion, that he would likely try to relocate to somewhere
in West Fargo to be closer to the children’s school. This is admirable
on his part. However, a change in the parenting time arrangement
would result in a change to the girls’ living situation. This factor
slightly favors Jessica.
“E.    The willingness and ability of each parent to facilitate and
       encourage a close and continuing relationship between the
       other parent and the child.
        “There is a plethora of evidence in this case that Jessica has
attempted to facilitate Daren’s ability to spend time with the children.
She has agreed to vary from the terms of the JUDGMENT BY
DEFAULT to facilitate Daren’s work schedule. There are numerous
text messages in evidence in which she has offered to switch dates or
give Daren additional time. On the other hand, there is also evidence
that Daren has, occasionally, kept the girls beyond the time he is
allotted in the JUDGMENT BY DEFAULT. His responses, when
questioned by Jessica, indicate a cavalier attitude toward her rights
under the decree. Further, Daren’s attitude has been that he is
unwilling to discuss modifications to the Court’s schedule unless he
receives his demanded 50/50 custody arrangement. Overall, this factor
favors Jessica.
....
“H.    The home, school, and community record of the child and
       the potential effect of any change.
       “Both the children appear to be well-adjusted. School records
of [one child] reflect that she is an above-average student that is
exhibiting no behavioral issues. In short, there is not sufficient

                                   7
       evidence that the current situation is detrimental to the children. This
       factor favors Jessica.”
[¶13] Under the clearly erroneous standard for our appellate review, the district
court’s findings were not induced by an erroneous view of the law and evidence exists
in the record to support the court’s findings. We are not left with a definite and firm
conviction the court made a mistake in evaluating the best interest factors. It is not
our function as an appellate court to reweigh or reevaluate the evidence, or to reassess
witness credibility, and we decline Daren Purdy’s request to do so in this case.


                                          III
[¶14] The district court did not clearly err evaluating the best interest factors and in
denying Daren Purdy’s motion to modify primary residential responsibility. We
affirm the amended judgment.
[¶15] Daniel J. Crothers
      Lisa Fair McEvers
      Jon J. Jensen
      Jerod E. Tufte
      Gerald W. VandeWalle, C.J.




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