Brouillet v. Brouillet

875 N.W.2d 485

Bradley BROUILLET, Plaintiff and Appellee

v.Marsha BROUILLET, Defendant and Appellant.

No. 20150097.

Supreme Court of North Dakota.

Feb. 18, 2016.

Bradley Brouillet, Grand Forks, N.D., for plaintiff and appellee; on brief.

Timothy C. Lamb, Grand Forks, N.D., for defendant and appellant; on brief.

SANDSTROM, Justice.

[¶ 1] Marsha Brouillet appeals from a divorce judgment that granted primary residential responsibility for the parties' two younger children to Bradley Brouillet, awarded him child support, and divided the parties' marital estate. We conclude the district court's award of primary residential responsibility for the two children, finding of Marsha Brouillet's income in awarding child support, and distribution of marital assets and debts are supported by the record. We affirm.

I

[¶ 2] Bradley and Marsha Brouillet were married in September 2008. He was 33, and she was 32 years old at the time of trial. The parties had resided together since 2002, separating in 2013, and had two children together, born in 2010 and 2006. Marsha Brouillet also had a child born in 2003. At the time of trial, the oldest child believed Bradley Brouillet was her biological father, but in fact she has a different biological father, who is subject to a child support obligation. In October 2013, Bradley Brouillet sued for divorce. In December 2014, the district court held a two-day bench trial.

[¶ 3] The district court entered a divorce judgment dividing the parties' assets and debts, granting Bradley Brouillet primary residential responsibility for the younger two children with Marsha Brouillet receiving parenting time, and ordering her to pay child support. While Marsha Brouillet retained primary residential responsibility for the oldest child, the court granted Bradley Brouillet parenting time with the oldest child as the child's psychological parent.

[¶ 4] The district court had jurisdiction under N.D. Const. art. VI, § 8, and N.D.C.C. § 27–05–06. The appeal is timely under N.D.R.App.P. 4(a). This Court has jurisdiction under N.D. Const. art. VI, §§ 2 and 6, and N.D.C.C. § 28–27–01.

II

[¶ 5] Marsha Brouillet argues the district court erred in applying the best interest of the child factors for determining primary residential responsibility for the two younger children by granting Bradley Brouillet primary residential responsibility.

[¶ 6] Section 14–09–06.2(1), N.D.C.C., provides factors for evaluating the best interests and welfare of the child in awarding primary residential responsibility. The best-interest factors include:

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....

k. The interaction and interrelationship, or the potential for interaction and interrelationship, 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....

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.

N.D.C.C. § 14–09–06.2(1).

[¶ 7] Our standard of review on appeal from the district court's decision on primary residential responsibility is well-established:

[The district] court's award of primary residential responsibility is a finding of fact, which will not be reversed on appeal unless it is clearly erroneous or it is not sufficiently specific to show the factual basis for the decision.See, e.g., Rustad v. Rustad, 2013 ND 185, ¶ 5, 838 N.W.2d 421 ; Wolt v. Wolt, 2010 ND 26, ¶ 7, 778 N.W.2d 786. "A finding of fact is clearly erroneous if it is induced by an erroneous view of the law, if no evidence exists to support it, or, although there is some evidence to support it, on the entire record, we are left with a definite and firm conviction a mistake has been made." Doll v. Doll, 2011 ND 24, ¶ 6, 794 N.W.2d 425. "Under the clearly erroneous standard, we do not reweigh the evidence nor reassess the credibility of witnesses, and we will not retry a custody case or substitute our judgment for a district court's initial custody decision merely because we might have reached a different result." Wolt, at ¶ 7 (quotation marks omitted). The district court has substantial discretion in making a custody determination, but it must consider all of the best-interest factors. Id. at ¶ 9. "Although a separate finding is not required for each statutory factor, the court's findings must contain sufficient specificity to show the factual basis for the custody decision." Id.

Schlieve v. Schlieve, 2014 ND 107, ¶ 8, 846 N.W.2d 733.

[¶ 8] Marsha Brouillet argues the district court erred in granting Bradley Brouillet primary residential responsibility, because it is in the children's best interest to be with her. She argues the court erred by splitting the primary residential responsibility of the three minor children between the parents, awarding the oldest to her and the younger two children to the father. She also contends the court erred in giving inadequate weight to the testimony of the oldest daughter.

[¶ 9] Marsha Brouillet essentially argues on appeal that the district court's findings under the factors are clearly erroneous or the court improperly weighed the testimony. She argues the court erred in considering specific items under factor (m), such as her smoking, her previous child abuse conviction, and her decision to call the oldest child as a witness, because those issues should have been considered under other "germane" factors.

[¶ 10] She argues the district court also erred in applying the "moral fitness" factor (f), contending the court's specific examples of her dishonesty did not specifically impact the children. She asserts it is "difficult to understand the court's analysis" as to why factors (a) and (d) favor Bradley Brouillet, arguing the district court confused the definitions and misapplied the intended purpose of the factors. She contends it is not a gender argument to assert that as a "psychological factor" the young children are more likely to have a greater bond with their mother or primary caretaker. She argues the court erred in splitting up the three minor children and should have awarded her primary residential responsibility for all three. She asserts the court gave inadequate weight to the oldest child's testimony regarding Bradley Brouillet's residence with his parents.

[¶ 11] The district court, however, explicitly considered and made findings on the factors under N.D.C.C. § 14–09–06.2(1). In its analysis based on the evidence from trial, the court found that factors (b), (c), (e), (g), and (h) weighed evenly between the parties; factors (a), (d), (f), and (m) weighed in favor of Bradley Brouillet; factor (k) weighed in favor of Marsha Brouillet, and factors (i), (j), and (l ) did not apply. The court also gave heightened consideration to factor (k) based on the separation of the oldest child from her siblings. The district court found that the impact of the separation would be lessened by a parenting plan which provides continuing interaction of the children and that the father demonstrated stability and willingness to provide appropriate guidance, as opposed to the mother's poor judgment. The court found that, "while not ideal," the father should have primary residential responsibility for the younger two children.

[¶ 12] We have said a district court generally does not need to do a "line-by-line best-interest analysis" for each individual child. Schlieve, 2014 ND 107, ¶ 25, 846 N.W.2d 733. "When the factors are in fact different for each child, then such an analysis is permissible and under some circumstances may be necessary; nevertheless, courts should be cautious about dividing custody of children." Id. (citing Gravning v. Gravning, 389 N.W.2d 621, 622–23 (N.D.1986) ("courts are cautious about dividing custody of children"); Stoppler v. Stoppler, 2001 ND 148, ¶ 7, 633 N.W.2d 142 ("split custody of siblings is generally disfavored")). Here the court explained, while it weighed factor (k) in favor of Marsha Brouillet, that weight was tempered by several facts:

First, this case is procedurally uncommon. [The oldest child] has been raised in the home as if she was Bradley's biological daughter and she is unaware that Bradley is not her father. Bradley has conceded his assertion that he should have primary residential responsibility for [the oldest child], not because that is not his

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