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 crossappellee.

Leah M. Warner, Fargo, N.D., for defendant, appellee, and cross-appellant.
1

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 KrumpWootton 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.
2

[¶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 KrumpWootton’s failure to adhere to our rules of appellate procedure, Becky KrumpWootton’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 
3

our rules. Under these circumstances we decline to dismiss Becky KrumpWootton’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:
4

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-ofstate 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.
5

[¶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
6

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 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.

[¶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.”
7

[¶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.
8

[¶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.