Schmidt v. Schmidt

660 N.W.2d 196

2003 ND 55

MaLaura SCHMIDT, Plaintiff and Appellant, v. Warren A. SCHMIDT, Defendant and Appellee.

No. 20020202.

Supreme Court of North Dakota.

April 15, 2003.

Robert S. Rau, Bosard, McCutcheon & Rau, Ltd., Minot, ND, for plaintiff and appellant.

Chad C. Nodland, Chad C. Nodland, Bismarck, ND, for defendant and appellee.

VANDE WALLE, Chief Justice.

[¶ 1] MaLaura Schmidt ("Lauri") appealed from the judgment entered in her divorce action against Warren A. Schmidt. We conclude the trial court's findings of fact on child custody and visitation are not clearly erroneous, and we affirm.

[¶ 2] The parties married in 1996. The family lived on a farm near Max. Warren farmed throughout the marriage. Lauri worked part-time at a Max bank after the parties married and later worked in a Minot law office. Lauri stayed home for about eight weeks after their son, Trevor, was born in 1998. While the parties were working, Trevor went to a daycare provider near Max, but spent one day a week with Warren's mother.

[¶ 3] Lauri sued for a divorce in August of 2001, and moved out of the marital home in September. At an interim order hearing, Lauri testified she had leased a home at Prairie View Heights 15 miles south of Minot. The trial court issued an interim order providing, in part: (1) the parties had custody of Trevor on alternating weekends; (2) Warren had custody of Trevor during the daytime Monday through Friday, while Lauri had custody of Trevor in the evenings; and (3) "Daycare for Trevor shall remain with his previously established daycare provider unless the parties otherwise jointly agree." The judgment granted the parties a divorce, awarded primary physical custody of Trevor to Warren, provided Lauri with visitation, ordered Lauri to pay child support, awarded Lauri spousal support for 30 months, and divided the parties' marital property and debts. [¶ 4] On appeal, Lauri contends the trial court erred in its custody and visitation determinations. She also requests attorney fees.

I

[¶ 5] We exercise a limited review of child custody awards in divorce cases. Stoppler v. Stoppler, 2001 ND 148, ¶ 7, 633 N.W.2d 142. A custody determination is a finding of fact that will not be set aside on appeal unless it is clearly erroneous. Id. Before we can determine if findings of fact are clearly erroneous, we must understand the basis for the trial court's decision. In re Griffey, 2002 ND 160, ¶ 8, 652 N.W.2d 351. A trial court's findings of fact are presumptively correct, and we view the evidence in the light most favorable to the findings. Stoppler, at ¶ 7.

[¶ 6] Under N.D.C.C. § 14-09-06.1, the trial court must award the custody of an unmarried minor child "to a person, agency, organization, or institution as will, in the opinion of the judge, promote the best interests and welfare of the child." In making an initial custody determination, a trial court must consider all of the factors specified in N.D.C.C. § 14-09-06.2(1) and base its decision on the best interests and welfare of the child. Stoppler, 2001 ND 148, ¶ 5, 633 N.W.2d 142. Section 14-09-06.2(1), N.D.C.C., provides, in part:

1. For the purpose of custody, the best interests and welfare of the child is determined by the court's consideration and evaluation of all factors affecting the best interests and welfare of the child. These factors include all of the following when applicable:

a. The love, affection, and other emotional ties existing between the parents and child.

b. The capacity and disposition of the parents to give the child love, affection, and guidance and to continue the education of the child.

c. The disposition of the parents to provide the child with food, clothing, medical care, or other remedial care recognized and permitted under the laws of this state in lieu of medical care, and other material needs.

d. The length of time the child has lived in a stable satisfactory environment and the desirability of maintaining continuity.

e. The permanence, as a family unit, of the existing or proposed custodial home.

f. The moral fitness of the parents.

g. The mental and physical health of the parents.

h. The home, school, and community record of the child.

i. The reasonable preference of the child, if the court deems the child to be of sufficient intelligence, understanding, and experience to express a preference.

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. 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 child custody dispute.

Although a separate finding is not required for each factor under N.D.C.C. § 14-09-06.2(1), the trial court's findings should be stated with sufficient specificity to enable a reviewing court to understand the factual basis for the court's decision. Griffey, 2002 ND 160, ¶ 8, 652 N.W.2d 351.

[¶ 7] In considering the factors specified by N.D.C.C. § 14-09-06.2(1), the trial court found one, factor c, slightly favored Lauri; found factors a and e favored Warren; found factor k strongly favored Warren; and found the other factors favored neither party, or were not factors in the court's decision. Because Lauri contends the trial court's custody award is clearly erroneous, we quote the court's findings on the factors favoring Warren at length:

a. The love, affection and other emotional ties existing between the parents and child.

Several witnesses testified about the relationship between Trevor and each of his parents. Some of the more convincing testimony came from Agnes Dobowey, a retired elementary teacher, who now operates a day care facility. Ms. Dobowey started taking care of Trevor in 1998 during the month of December and now cares for him an average of four days a week.

Ms. Dobowey testified that Trevor has bonded well with his father—that Trevor warmly receives his father—but that he does not show the same warm reception toward his mother. Ms. Dobowey testified that when Trevor comes back from Warren's weekend visitation, Trevor talks about what he did with his dad, but when Trevor comes back from Lauri's weekend, Trevor never talks about it. Primarily because of Ms. Dobowey's experience with small children, I find that she likely possesses more insight than some of the other witnesses.

....

In addition to her added training, I find... Ms. Dobowey to be a more impartial witness than the relatives or close personal friends of either parent. This factor is not about which parent fixes the most meals or washes the most clothes. This factor is about bonding. At this point in his life, there appears to be a greater bonding between Trevor and his father. I find that this factor favors Warren Schmidt.

....

e. The permanence, as a family unit, of the existing or proposed custodial home.

Both Warren and Lauri were raised in North Dakota, and both have been gainfully employed in North Dakota for the past several years. The impact of remarriage by either parent would be a matter of speculation. Warren's situation may be more permanent than that of Lauri because of his investment in farming and his strong family ties in North Dakota. I find that this factor favors Warren.

....

k. The interaction and interrelationship, or the potential for interaction and interrelationship, of the child with any person who reside[s] 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.

Marian Schmidt, Warren's mother, says that she sees Warren nearly every day. Warren has taken over operation of the family farm after the fairly recent death of his father. Marian Schmidt says that she takes care of Trevor one day a week and that she also sees Warren's brother and his family every week.

Michelle Schmidt is Warren's sister-in-law. Michelle says that Trevor runs to his Uncle Kendal and refers to him as "Uncle".

Lauri was placed in foster care as a child and does not know her father. Lauri's mother and her spouse live in Vancouver, Washington. Lauri has a half sister in Apple Valley, Minnesota. Lauri also has another half sister but Lauri doesn't know where she lives. Lauri has an aunt and uncle in North Dakota but there does not exist a strong relationship. However, Lauri does have a grandmother who resides in a Garrison nursing home. Neither Warren nor Lauri appear to have "significant others" in their lives at this time.

It is to Lauri's credit that she appears to recognize the importance to Trevor of Warren's extended family by liberally allowing contact. However, I find that this criteria strongly favors Warren.

[¶ 8] The trial court concluded Trevor's interests would be best served by granting Warren custody of Trevor:

Determining a child's best interests involves more than adding up legislatively enacted "best interest factors" although, arguably, the greater numbers of factors seem to favor Warren. Because of Trevor's age, I am convinced that bonding is of particular importance. Although there is obviously love between Trevor and Lauri, I am impressed by the degree of bonding between Trevor, Warren and Warren's extended family. Both Lauri and Warren are good parents. Each has their strengths and weaknesses. However, after considering all of the evidence, I am of a

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