### IN THE SUPREME COURT STATE OF NORTH DAKOT A

2021 ND 150

Kelsey Rae Lerfald, aka Kelsey Rae Bosch, Plaintiff and Appellee

v. Tyson Arleigh Lerfald, Defendant and Appellant

and State of North Dakota, Statutory Real Party in Interest

No. 20210008

Appeal from the District Court of Cass County, East Central Judicial District, the Honorable Thomas R. Olson , Judge.

AFFIRMED

. Opinion of the Court by VandeWalle , Justice.

Kelsey R. Bosch, self

- represented, Horace, ND, plaintiff and appellee ; subm tited on brief

.
Kristin A. Overboe, Fargo, ND

, for defendant and appellant ; submitted on brief

.1 Lerfald v. Lerfald No. 20210008

VandeWalle , Justice.

[¶1] Tyson Lerfald appealed from a district court order d enying his motion to modify his child support obligation and the parenting time provisions of the amended judgment . Lerfald argues the district court erred by denying his
motion to modify the parenting time provisions

. He contends the parenting time provis ions require him to maintain a valid driver’s license and be solely responsible for parenting time transportation, which causes his parenting time to be contingent on having a valid driver’s license. We affirm, concluding the

court ’s finding that Lerfald f ailed to establish a materia l change in
circumstances is not clearly erroneous and the court did not err in denying Lerfald’s motion

.

I

[¶2] In 2015, Kelsey Lerfald, now known as Kelsey Bosch, sued for divorce. The parties have one minor child together. In November 2015, a divorce judgment was entered, incorporating the parties’ stipulation, including that Bosch have primary residenti al responsibility of the child.

[¶3] In February 2020, Bosch m oved to modify parenting time. Lerfald did not respond to the motion or appear at a hearing on the motion . On March 3,
2020 , the district court granted Bosch’s motion. The court modified parenting
time , including order ing , “Tyson must maintain a valid driver’s license and shall be solely responsible for transportation to fa cilitate his parenting time.”
A n amended judgment was entered.

[¶4] In November 2020, Lerfald moved to modify the amended judgment. He request ed the district court remove the provision requiring him to have a valid driver’s license, enforce his parenting time, order reinstate ment of his driver’s license, and modify his child support obl igation.2

[¶5] After a hearing, the district court denied Lerfald’s motion. The court found there had not been a material change of circumstances since entry of the amended judgment which would warran t modification of the parenting

- time provisions. The court found any changes that occurred were all negative regarding Lerfald’s parenting time, including Lerfald’s arrest for driving under
the influence while the child was in the vehicle . The court also found an analysis o f the best interest factors weigh ed in Bosch’s favor.

II

[¶6] Lerfald ar gues the district court erred by denying his request to modify the amended judgment to remove the requirement that he maintain a driver’s
license and be s olely responsible for parenting time transportation. He claims the driver’s license requirement provides an unreasonable restriction on his ability to exercise parenting time and parenting time should not be contingen t on having a driver’s license.

[¶7] A court ’s decision concerning parenting time is a finding of fact, which will not be reversed on appeal unless it is clearly erroneous. Rustad v. Baumgartner , 2020 ND 126, ¶ 8, 943 N.W.2d 786. A finding of fact is clearly erroneous if it is induced by an erroneou s view of the law, if there is no evidence to support it, or if we are left with a definite and firm conviction a mistake has
been made. Id. To modify a parenting time provision, the moving party must show that a material change in circumstances has occurr ed since entry of the prior pa renting time order and that modification is in the child’s best interests.
Id. A material change is an important new fact that has occurred since the entry of the prior order. Id.

[¶8] The district court denied Lerfald’s motion, fi nding Lerfald failed to establish a material change in circumstances had occurred since entry of the amended judgm ent. Lerfald argues the court’s finding is clearly erroneous but
he does not explain what material change occurred that supports his motion

. H e argues the court failed to apply the best interest factors and the requirement that he provide the parenting time transportation with a valid driver’s license is not in the child’s best interest

.3

[¶9] Lerfald testified his driver’s license was suspended befor e th e amended judgment was issued. The loss of his license is not a new fact that has occurred since the entry of the prior order, and therefore is not a material change in
circumstances. The district court was not required to consider and make findings ab out the best interest factors unless a material change in
circumstances was established. Cf. Valeu v. Strube , 2018 ND 30, ¶ 20, 905 N.W.2d 728 (stating district court was not required to consider the best interest
factors when the party moving to modify primary residential responsibility
failed to establish a mate rial change in circumstances).

[¶10] Lerfald essentially argues the district court erred in ordering him to maintain a valid driver’s license and be solely responsible for parenting time transportation

. Lerfald’s arguments constitute a collateral attack on the amended judgment. Lerfald did not appeal the amended judgment. “A party may not collaterally attack a final decision, that was not appealed, in subsequent proceedings.” In re T.H. , 2012 ND 38, ¶ 2 0, 812 N.W.2d 373. If Lerfald believed the district court erred in entering the amended judgment by ordering him to maintain a driver’s license and be solely responsible for parenting time transportation, his reme dy was to appeal that decision.

[¶11] As the movi ng party, Lerfald had the burden to show a material change
in circumstances exists. The district court found Lerfald failed to prove a material change. The evidence supports the court’s findings

. We conclude the court’s findings are not clearly erroneous. W e acknowledge the concern that requiring a parent to maintain a driver’s license and be solely responsible for parenting time transportation may result in a denial of parenting time. However, Lerfald did not appeal the amended judgment and he failed to sh ow a material change in circumstances exists , and therefore we are left without a remedy.4 III

[¶12] Lerfald argues the district court’s findings are based on inadmissible hearsay evidence. He argues the court relied on Bosch’s affidavits and exhibits,
but she did n ot offer her exhibits or affidavits at the hearing, and therefore the court relied on inadmissible hearsay.

[¶13] In reviewing the district court’s decision to admit evidence, we apply an
abuse of discretion standard. Krueger v. Krueger , 2013 ND 245, ¶ 22, 840
N .W.2d 613. The court abuses its discretion when it acts in an arbitrary, unreasonable, or unconscionable manner, or when its decision is not the product of a rational mental process leading to a reasoned determination. Id. “[T]he ‘introduction of allegedly inadmissible evidence in a non

- jury case is rarely reversible error, and we would only reverse such a holding if all the competent evidence is insufficient to support the judgment or unless it affirmatively appears that the incompetent evidence induced th e court to make an essential finding which would not otherwise have been made.’” Id. at ¶ 23 (quoting In re J.S.L. , 2009 ND 43, ¶ 25, 763 N.W.2d 783).

[¶14] At the beginning of the hearing, Lerfald’s attorney stated, “What I’ve got is a preliminary matter that w e could offer the affidavits and exhibits into
evidenc e.” There was no further offer of Bosch’s affidavit. Lerfald then called
Bosch as a witness and cross examine d her on the statements she made in her
affidavits and exhibits. Generally a party cannot complain on appeal of alleged
errors he invited. State v. Morales , 2019 ND 206, ¶ 30, 932 N.W.2d 106.

[¶15] Lerfald had the burden to establish a material change in circumstances occurred justifying a modification of the parenting time p rovisions. See
Schurmann v. Schurmann , 2016 ND 69, ¶ 12, 877 N.W.2d 20. He failed to present evidence establishing a m aterial change existed . To the extent the district court admitted any inadmissible evidence, the error was not a
reversible error.5 IV

[¶16] We hav e considered all remaining issues and arguments raised, and we conclude they are either without merit or unnecessary to our decision. We
affirm the order

.
[¶17] Jon J. Jensen, C.J

. Gerald W. VandeWall e Daniel J. Crother s Lisa Fair McEver s Jerod E. Tuft e