Capes v. Capes

McEVERS, Justice,

dissenting.

[¶31] I join Justice Crothers in his dissent. The original findings made in the underlying divorce showed many of the best interest factors as neutral or not fa*455voring either party. The district court in the original divorce action specifically found, under factor (e), “[b]oth parents are willing to facilitate and encourage a close and continuing relationship between the other parent and children.”

[¶ 32] In its Order Granting the Motion to Amend the Judgment and Decree, the district court made specific findings that Jennifer Novak had met her burden to show a material change in circumstances: (1) that the evidence establishes that Jason Capes is openly hostile to Jennifer Novak and the hostility is negatively impacting the children; and (2) that Jason Capes had engaged in behaviors aimed at discouraging the relationship between Jennifer No-vak and the children, demonstrating an inability or unwillingness of Jason Capes to facilitate and encourage a close relationship. Jason Capes’ unwillingness to facilitate and encourage a close relationship between Jennifer Novak and the children involves important new facts that were unknown at the time of the initial parenting order. The district court made lengthy findings supporting its reasons for the modification, and I would not second guess the fact-finder who is in a better position to judge the credibility of the witnesses.

[¶ 33] The majority suggests the district court erred in its findings regarding daycare, indicating that the district court did not cite any authority for the proposition that choosing a daycare provider is a “major decision” requiring input from both parties. Majority, at ¶ 9. However, the daycare issue was ultimately stipulated to by the parties prior to the district court issuing its opinion. It appears the district court’s reason for including it in its findings was not to modify what constitutes a major decision, but to show how Jason Capes’ decision to change daycare providers resulted in a reduction of parenting time Jennifer Novak had with her children. This was only one of many examples noted by the district court of Jason Capes’ attempts to control and limit Jennifer Novak’s access and time with the children.

[¶ 34] I also disagree with the majority that the district court’s analysis was “completely lacking.” Majority, at ¶ 14. The district court addressed the factor that had changed — factor (e), “[t]he willingness and ability of each parent to facilitate and encourage a close and continuing relationship between the other parent and the child.” N.D.C.C. § 14-09-06.2(l)(e). The district court issued a lengthy order discussing the factor that was at issue. I do not believe analyzing factors which were not at issue would have added to the analysis.

[¶ 35] Based on the standard of review, I would affirm.

[¶ 36] DANIEL J. CROTHERS, J., concurs.