State v. Faber

978 N.W.2d 652

State of North Dakota, COUNTY OF SARGENT, PlaintiffandEx Rel, Nicki Erickson, Plaintiff and Appellant

v.Tim FABER, Defendant and Appellee

No. 20210358

Supreme Court of North Dakota.

FILED AUGUST 4, 2022

Erica L. Chisholm, Wahpeton, ND, for Nicki Erickson, plaintiff and appellant.

Samuel S. Johnson, Wahpeton, ND, for defendant and appellee.

Crothers, Justice.

[¶1] Nicki Erickson appeals from a judgment awarding her and Tim Faber equal residential responsibility of their three children. Erickson argues the district court clearly erred by awarding the parties equal residential responsibility of the children. She also claims the court erred in determining the parties’ two youngest children were of sufficient age and maturity to testify about their preferences relating to residential responsibility. We conclude the court did not err by allowing the children to testify on their preferences; however, the court erred by awarding Erickson and Faber equal residential responsibility of their oldest child. We affirm in part, reverse in part and remand.

I

[¶2] Erickson and Faber have three children together, K.F., born in 2004, M.F., born in 2009, and J.F., born in 2013. The parties lived together in Milnor until 2019, when Erickson and the children moved to Gwinner. In February 2020, Faber sued Erickson seeking equal residential responsibility of the parties’ children. In response, Erickson requested primary residential responsibility of the children.

[¶3] At a September 2021 hearing, the district court received evidence and heard testimony related to the best interest factors under N.D.C.C. § 14-09-06.2(1). The court allowed the children to testify about their preferences relating to residential responsibility. K.F., age 16, testified she wanted to live with Erickson in Gwinner and have the freedom to visit Faber as she pleases. M.F. and J.F., ages 12 and 8, testified they wanted equal time with both parents.

[¶4] The district court awarded Erickson and Faber equal residential responsibility of the children after analyzing the best interest factors. The court noted that although it awarded the parties equal residential responsibility, K.F. would be allowed to come and go as she chose.

II

[¶5] Erickson argues the district court erred in finding M.F. and J.F. were of sufficient age and maturity to testify about their preferences relating to residential responsibility. She also claims the court erred by awarding equal residential responsibility of the children.

[¶6] A district court's decision on residential responsibility is a finding of fact subject to the clearly erroneous standard of review. Boldt v. Boldt , 2021 ND 213, ¶ 8, 966 N.W.2d 897. 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 this Court, after reviewing the entire record, is left with a definite and firm conviction a mistake has been made. Id. Under the clearly erroneous standard, we do not reassess evidence or the witnesses’ credibility or retry a custody case, and we do not substitute our judgment for a court's decision simply because we might have reached a different result. Solwey v. Solwey , 2018 ND 82, ¶ 20, 908 N.W.2d 690.

[¶7] The district court must consider the best interests of the child under N.D.C.C. § 14-09-06.2(1) in awarding residential responsibility. Hammeren v. Hammeren , 2012 ND 225, ¶ 6, 823 N.W.2d 482. The best interest factors include: (a) the love, affection, and emotional ties between the parents and child; (b) the parents’ ability to provide the child a safe environment; (c) the parents’ ability to meet a child's developmental needs; (d) the sufficiency and stability of each parent's home environment; (e) each parent's ability and willingness to encourage a close and continuing relationship with the other parent; (f) the parents’ moral fitness; (g) the parents’ mental and physical health; (h) the child's home, school, and community record; (i) the child's reasonable preference; (j) evidence of domestic violence, (k) the child's interaction and relationship with another person who resides in or is present in a parent's home; (l) a parent's making of false allegations against the other parent; and (m) other relevant factors. N.D.C.C. § 14-09-06.2(1).

[¶8] A district court has broad discretion regarding the examination of witnesses, and, if appropriate, a court may refuse to allow a witness to testify. Solwey , 2018 ND 82, ¶ 23, 908 N.W.2d 690. A court abuses its discretion if it misinterprets or misapplies the law, it acts in an arbitrary, unreasonable, or unconscionable manner, or its decision is not the product of a rational mental process leading to a reasoned determination. Wades Welding LLC v. Tioga Properties, LLC , 2021 ND 214, ¶ 9, 966 N.W.2d 912.

A

[¶9] Erickson asserts the district court erred in finding M.F. and J.F., ages 12 and 8, were of sufficient maturity to testify about their preferences on residential responsibility.

[¶10] Under N.D.C.C. § 14-09-06.2(1)(i), if a district 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." Id.

[¶11] A child's maturity is a factually driven issue and will depend on the facts and circumstances of the case. Solwey , 2018 ND 82, ¶ 20, 908 N.W.2d 690. "The preference of a child who is capable of intelligently choosing between his parents for custody can be significant in determining the best interest of the child, but the child's preference is only one factor to consider and is not usually determinative." Hammeren , 2012 ND 225, ¶ 16, 823 N.W.2d 482. "A mature child's preference should be considered by a court, but only if there are persuasive reasons for that preference." Glass v. Glass , 2011 ND 145, ¶ 18, 800 N.W.2d 691.

[¶12] The district court explained its decision to allow M.F. and J.F. to testify about their preferences relating to residential responsibility:

"Okay. I'm going to allow the children to testify. The 16-year-old obviously is of age. The—I've got concerns when, you know, we have younger children, but I think it's important. It's unfortunate they would have to testify in front of their parents, but, you know, over the years there have been many, many trials and difficult situations with young children that have had to testify, and I think this is a situation where it would be good to hear from them. And like I say—like Mr. Johnson says, there would be a few questions, I can consider what they have to say, taking age into account, and their current situations, but I'm going to allow it."

[¶13] After the evidentiary hearing, the district court found in part:

"The children's testimony was not unduly influenced but was free and truthful. All three children are of sufficient maturity to make a sound judgement as to where they want to reside. All three children were able to distinguish between right from wrong and understand the questions that were presented to them. All three children testified that they love both their mom and dad. The two youngest children testified that they want to live with [Erickson] and [Faber] on a week-by-week basis. The parties’ two youngest children testified, that when they were living in Milnor, North Dakota and attending school in Gwinner, North Dakota, they had no problems with getting up in the morning and being transported back and forth from school. The parties’ youngest child testified that he felt his relationship with [Faber] was ‘inseparable.’ "

[¶14] The district court considered the children's ages and situations when weighing their testimony. M.F. and J.F. were asked about their school, going back and forth between Gwinner and Milnor and spending time with their parents. The court found M.F.’s and J.F.’s testimony was not influenced and there was no evidence suggesting otherwise. The court did not abuse its discretion by allowing M.F. and J.F. to testify, and the court's findings relating to their preferences on residential responsibility were not clearly erroneous.

B

[¶15] Erickson argues the court clearly erred in its analysis of the best interest factors under N.D.C.C. § 14-09-06.2(1) by awarding equal residential responsibility of M.F. and J.F.

[¶16] The district court found best interest factors (d), (e), (i), (k), and (m) favored Faber. The court found M.F. and J.F. have a close bond with Faber's parents who live near Milnor. The court found M.F. and J.F. would not be negatively affected by residing with Erickson and Faber on a week-by-week basis while continuing to attend school in Gwinner. The court found Erickson restricted Faber's contact with the children after he started dating his current girlfriend. The court found M.F. and J.F. have a close relationship with his girlfriend. The court found M.F. and J.F. have been negatively impacted since they have been living primarily with Erickson. M.F. has been receiving counseling and J.F. struggled at school.

[¶17] The district court's findings on the best interest factors have support in the record, and we are not left with a definite and firm conviction a mistake was made. The court did not clearly err by awarding Erickson and Faber equal residential responsibility of M.F. and J.F.

III

[¶18] Erickson argues the district court clearly erred by awarding the parties equal residential responsibility of the oldest child, K.F. She claims K.F. intended to live primarily with her, and Faber had no intention of forcing K.F. to spend half of her time with him.

[¶19] K.F. testified her preference would be to live primarily with Erickson in Gwinner and have the freedom to visit Faber as she chooses. K.F. was asked, "regardless of whether or not ... your mom and dad have equal...