IN THE SUPREME COURT

STATE OF NORTH DAKOTA

2023 ND 120

Joshua M. Goetz, Plaintiff and Appellee

v.

Cassandra B. Goetz, n.k.a. Cassandra Smith, Defendant and Appellant

and

State of North Dakota, Statutory Real Party in Interest 

No. 20220231

Appeal from the District Court of McLean County, South Central Judicial 

District, the Honorable James D. Gion, Judge.

REVERSED.

Opinion of the Court by McEvers, Justice, in which Chief Justice Jensen and 

Justice Tufte joined. Surrogate Judge Nelson filed a dissenting opinion, in 

which District Judge Louser joined.

Justin D. Hager, Bismarck, ND, for plaintiff and appellee.

Garrett D. Ludwig, Mandan, ND, for defendant and appellant.

FILED 

IN THE OFFICE OF THE 

CLERK OF SUPREME COURT 

JULY 7, 2023 

STATE OF NORTH DAKOTA
1

Goetz v. Goetz, et al.

No. 20220231

McEvers, Justice.

[¶1] Cassandra Smith, formerly Cassandra Goetz, appeals from a corrected 

amended judgment awarding her and Joshua Goetz equal residential 

responsibility of their minor children and awarding Goetz primary decision 

making responsibility. In Goetz v. Goetz, 2023 ND 53, 988 N.W.2d 553, we 

remanded the case concluding the district court did not make specific findings 

regarding whether the material change in circumstances resulted in a general 

decline or adversely affected the children. Upon reviewing the district court’s 

findings on remand, we reverse the judgment because the court once again 

failed to make specific findings regarding whether the material change in 

circumstances resulted in a general decline or adversely affected the children.

I

[¶2] Cassandra Smith and Joshua Goetz divorced in 2018 and have two minor 

children together. In the original judgment, the district court awarded Smith

primary residential responsibility based on the parties’ agreement. Goetz was 

awarded parenting time every other weekend and holiday. The court also 

awarded the parties joint decision-making responsibility on all matters except 

for daycare and spiritual development decisions, which were awarded to 

Smith.

[¶3] In February 2021, Goetz moved to modify primary residential 

responsibility due to co-parenting issues with Smith. He alleged she refused to 

allow him communication with the children, held animosity towards his wife

and their children, and initiated a welfare check during his parenting time 

without reason. After two evidentiary hearings, the district court awarded the 

parties equal residential responsibility and awarded Goetz primary decisionmaking responsibility. Smith appealed. We retained jurisdiction under 

N.D.R.App.P. 35(a)(3)(B) and remanded with instructions that the district

court make specific findings regarding whether the material change in 
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circumstances resulted in a general decline or adversely affected the children. 

Goetz, 2023 ND 53, ¶ 10.

II

[¶4] Smith argues the district court erred in awarding equal residential 

responsibility and giving Goetz primary decision-making responsibility. She 

asserts there was not a material change in circumstances that adversely 

affected the children or resulted in a general decline.

[¶5] “A district court’s decision on residential responsibility is a finding of fact 

subject to the clearly erroneous standard of review.” Queen v. Martel, 2022 ND 

178, ¶ 3, 980 N.W.2d 914. A finding of fact is clearly erroneous if it is induced 

by an erroneous view of the law, if no evidence supports it, or if, after reviewing 

the entire record, we are left with a definite and firm conviction a mistake has 

been made. Id.

[¶6] A district court may modify residential responsibility two years after an 

order establishing primary residential responsibility if the court finds a 

material change in circumstances and the modification is necessary to serve 

the best interests of the child. N.D.C.C. § 14-09-06.6(6). To warrant 

modification, the material change in circumstances must adversely affect the 

child or result in a general decline in the child’s condition. Kunz v. Slappy, 2021 

ND 186, ¶ 28, 965 N.W.2d 408.

[¶7] In Anderson v. Spitzer, the district court found a material change in 

circumstances based on different parenting styles, inability to communicate, 

and inability to agree on scheduling and discipline without any findings on 

whether the child was adversely affected. 2022 ND 110, ¶ 9, 974 N.W.2d 695. 

In Spitzer, the court found: “By all accounts, P.T.S. appears to be developing 

well. He is an accomplished athlete and receives high academic marks.” Id. The 

only challenge to that finding was an assertion P.T.S. has experienced anxiety 

about being with Spitzer. Id. The court did not make any findings regarding 

P.T.S.’s anxiety. Id. In Spitzer, we reversed because the findings did not 

indicate how changed circumstances adversely affected the child or his 

condition. Id. at ¶ 10.
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[¶8] Here, even after being specifically instructed to indicate how the changed 

circumstances adversely affected the children, the district court made no such 

findings. The court made a variety of findings regarding the parties’ differing 

parenting styles, inability to communicate, and overall disagreements. The 

court also discussed Smith’s animus towards Goetz and his new family. The 

court’s findings regarding Smith’s concerning behaviors constituting a 

material change in circumstances were not clearly erroneous. However, the 

court failed to complete the next required step of the analysis because it did 

not make any specific findings regarding how the material change in 

circumstances resulted in a decline of any kind in the children. Slappy, 2021 

ND 186, ¶ 28. Rather, the court noted the children are overall normal and have 

a good relationship with their step-family. Although we do not condone Smith’s 

behavior, the district court’s determination that it was in the children’s best 

interests to modify primary residential responsibility without finding an 

adverse effect or declining condition of the children was induced by an 

erroneous view of the law and is clearly erroneous. Slappy, 2021 ND 186, ¶ 28.

III

[¶9] The district court erred in modifying primary residential responsibility 

without finding the children were adversely affected or evidence of a general 

decline in the children’s conditions. The court’s corrected amended judgment 

is reversed.

[¶10] Jon J. Jensen, C.J.

Lisa Fair McEvers

Jerod E. Tufte
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Nelson, Surrogate Judge, dissenting.

[¶11] I respectfully dissent from the majority’s decision to reverse the decision 

of the district court.

[¶12] The district court judge and the parenting investigator both gave a 

detailed analysis of the best interest factors and they both came to the same 

conclusion: that the parents should have joint parenting responsibility and 

that Joshua Goetz should have primary decision-making responsibility—the 

primary reasons in both analyses being Cassandra Smith’s concerning

behaviors since the divorce. According to N.D.C.C. § 14-09-06.6(6), this is all 

that is necessary in either an original custody or visitation decision or a 

modification after two years since the original judgment. Section 14-09-06.6(6), 

N.D.C.C., states the district court may modify residential responsibility two

years after an order establishing primary residential responsibility if the court 

finds a material change in circumstances and the modification is necessary to 

serve the best interests of the child.

[¶13] Based on the record, I am not left with a definite and firm conviction a 

mistake has been made in modifying the custody arrangement to award the 

parties equal residential responsibility and giving Goetz primary decisionmaking responsibility. I do not believe the district court’s decision was clearly 

erroneous because it was based on concerning behaviors exhibited by Smith 

which is clearly not in the best interests of the children. However, our case law 

requires the court to take its analysis a step further than just the best interest 

factors. The court must also find that the material change in circumstances 

that led to a modification of a custody arrangement must adversely affect the 

child or result in a general decline in the child’s condition. Kunz v. Slappy, 2021 

ND 186, ¶ 28, 965 N.W.2d 408. In Anderson v. Spitzer, 2022 ND 110, ¶ 9, 974 

N.W.2d 695, this Court reversed because the findings did not indicate how 

changed circumstances adversely affected the child or his condition.

[¶14] This Court remanded this case after concluding the district court did not 

make specific findings regarding whether the material change in 

circumstances adversely affected the children or resulted in a general decline 

in the children’s condition. Goetz v. Goetz, 2023 ND 53, ¶ 1, 988 N.W.2d 553. 
5

Although I admit the district court did not make these specific findings as 

required, ample evidence exists in the record that could have led to such 

findings, such as: both children reporting they wanted Smith to stop hitting 

them, Smith’s emotional abuse of the children, Smith’s inflexibility, Smith’s 

controlling tendencies, Smith’s large overreaction at any slight change in 

parenting plan by Goetz, Smith’s use of the children as pawns in her fighting 

with Goetz, Smith’s attempts to sabotage the children’s quality time with 

Goetz, Smith’s harassing phone calls when the children are with Goetz, Smith’s 

unfounded requests for welfare checks while the children are with Goetz, 

Smith’s removal of the children from paternal grandparents’ daycare for no 

apparent reason, and Smith’s termination of L.G.’s violin lessons taught by her 

paternal grandfather for no apparent reason. This evidence was contained in 

the Parenting Investigation Report completed by a court-appointed 

investigator who has no personal objective in the matter. 

[¶15] Although the seemingly magic words of “adversely affected” or “general 

decline in the children’s conditions” were not used in the district court’s order, 

it is clear that such criteria were met upon a review of the record—specifically 

a review of the parenting investigator’s report and testimony. To reverse the 

now established parenting plan would be to put form over substance and would 

ignore what has been clearly established as the best interest of the children 

simply to punish the lower court for a violation of a rule of construction. One 

could certainly infer from the record how Smith’s behavior adversely affected 

the children. The children here have lived in each parent’s home for over a year 

and to uproot them once again would be inconsistent with the goals of our case 

law which support “stability and continuity” for children. By reversing, this 

Court seems to be ignoring the best interest factors. The record supports the 

children are better off with the joint custody arrangement. The court’s decision 

to award equal primary residential responsibility was not clearly erroneous.

[¶16] Stacy J. Louser, D.J.

David W. Nelson, S.J.
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[¶17] The Honorable Stacy J. Louser, D.J., and the Honorable David W. 

Nelson, S.J., sitting in place of Crothers, J., and Bahr, J., disqualified.