Thompson v. Thompson

905 N.W.2d 772

Brent THOMPSON, Plaintiff and Appellant

v.Jeanna THOMPSON, Defendant and Appellee

No. 20170063

Supreme Court of North Dakota.

Filed January 22, 2018

Kyle R. Craig, Minot, ND, for plaintiff and appellant.

Denise C. Hays–Johnson, Minot, ND, for defendant and appellee.

VandeWalle, Chief Justice.

[¶ 1] Brent Thompson appealed the district court's judgment awarding split residential responsibility and requiring Brent to pay spousal support. We affirm, concluding the district court's award of split residential responsibility and spousal support was adequately supported by the record.

I

[¶ 2] Brent and Jeanna Thompson married in 1999, and Brent filed for divorce in 2015. The parties have three minor children, C.M.T., C.F.T., and C.L.T. When the parties initially separated in 2015, C.F.T. chose to reside with Jeanna and C.M.T. chose to reside with Brent—C.L.T. went back and forth between the two households.

[¶ 3] At trial, Brent requested primary residential responsibility of all three children. Each of the children expressed a preference for primary residence. C.F.T. and C.L.T. prefer to reside primarily with Jeanna, and C.M.T. prefers to reside with Brent.

[¶ 4] The district court entered a divorce judgment dividing the parties' assets and debts, granting split residential responsibility, and awarding Jeanna spousal support. In coming to its determination for spousal support, the district court utilized the Ruff–Fischer guidelines; for residential responsibility, the district court utilized the best interest factors outlined in N.D.C.C. § 14–09–06.2.

IISplit Residential Responsibility

[¶ 5] Section 14–09–06.2(1), N.D.C.C., provides factors for evaluating the best interests and welfare of the child in awarding 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 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....

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.

[¶ 6] Brent argues the district court failed to make sufficient findings as to factors (b), (e), (h), and (i). In its order, the district court found factors (a) and (i) to favor split residential rights; factors (b) and (h) slightly favored Jeanna; and factor (g) slightly favored Brent. Factors (c), (d), and (e) favored neither party; and factors (f), (j), and (k) were inapplicable.

[¶ 7] We outlined our standard of review of child custody decisions in Jelsing v. Peterson , 2007 ND 41, ¶ 11, 729 N.W.2d 157 (citations omitted):

We exercise a limited review of child custody awards. A district court's decisions on child custody, including an initial award of custody, are treated as findings of fact and will not be set aside on appeal unless clearly erroneous. 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 if the reviewing court, on the entire evidence, is left with a definite and firm conviction a mistake has been made. Under the clearly erroneous standard of review, we do not reweigh the evidence or 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. A choice between two permissible views of the weight of the evidence is not clearly erroneous, and our deferential review is especially applicable for a difficult child custody decision involving two fit parents.

[¶ 8] While split residential responsibility is not favored, it is not expressly prohibited. BeauLac v. BeauLac , 2002 ND 126, ¶ 16, 649 N.W.2d 210. Moreover, "[i]t is especially appropriate that in close cases having to do with deciding custody of children between two fit parents that due regard be given to the trial court's opportunity to determine the credibility of the witnesses." Stoppler v. Stoppler , 2001 ND 148, ¶ 7, 633 N.W.2d 142 (citation omitted). "[T]he district court's choice for custody between two fit parents is a difficult one, and this Court will not retry the case or substitute its judgment for that of the district court when its determination is supported by the evidence." Dronen v. Dronen , 2009 ND 70, ¶ 7, 764 N.W.2d 675 (citation omitted).

[¶ 9] We have recognized courts use a variety of factors when deciding whether to split custody, including:

the interrelationship of the children, the children's ages, the similarity of interests, and activities of the children, whether the child previously resided with the custodial parent, the parents' involvement in the child's upbringing, the parents' emotional stability, the parents' previous lack of cooperation regarding visitation, the child's preference, parental agreement providing for siblings to be together frequently, and the location of the parents' residences.

Marsden v. Koop , 2010 ND 196, ¶ 29, 789 N.W.2d 531.

A

[¶ 10] Brent argues the district court erred in analyzing factor (b), the ability of each parent to assure the child receives adequate food, clothing, shelter, medical care, and a safe environment, because there is no evidence to support the finding that this factor favors Jeanna. The district court found both parents have the ability to provide basic necessities for the children. However, it found this factor slightly favored Jeanna because, despite knowing of the living arrangements of his two children, Brent did not offer spousal support to Jeanna in the interim or attempt to create better living conditions for Jeanna and the two children under her care. Brent continued to live in the marital home while Jeanna took residence in a rundown two-bedroom apartment.

[¶ 11] Because there is evidence supporting the district court's finding, its determination on this factor is not clearly erroneous.

B

[¶ 12] Brent argues the district court's finding on factor (e), the willingness and ability of each parent to facilitate and encourage a close and continuing relationship between the other parent and the child, should leave this Court with a firm conviction a mistake has been made. Brent argues the district court failed to consider Jeanna's alleged parental alienation. C.M.T. testified Jeanna called him "daddy's little bitch," and Brent argues the district court failed to consider that testimony as applied to factor (e).

[¶ 13] The district court found this factor favored neither party because neither Brent nor Jeanna presented any evidence of a willingness or ability to facilitate and encourage a close and continuing relationship between the other parent and the child(ren) in their care. Absent a few isolated instances of visitation, the district court found neither party made any effort to ensure parenting time with the other parent.

[¶ 14] Because there is evidence supporting the district court's finding, its determination on this factor is not clearly erroneous.

C

[¶ 15] Brent argues the district court erred in analyzing factor (h), which looks at the home, school, and community records of the child and the potential effect of any change. Brent argues the district court failed to consider Jeanna's recent actions including failing to enroll C.F.T. and C.L.T. in school for the 2016–2017 school year.

[¶ 16] While the district court reiterated keeping the children in their current residential placement is in the children's best interest, it ultimately found this factor slightly favored Jeanna. The district court noted when the children were younger, Jeanna was the primary caregiver while Brent was the primary financial provider. Although, the district court also noted Brent spent a great deal of time with the children. Recognizing the children have had difficulties in the last year as a result of the divorce, the district court found this factor favored keeping the children in the Harvey school district together where they can be a source of support for each other.

[¶ 17] Because there is evidence supporting the district court's finding, its determination on this factor is not clearly erroneous.

D

[¶ 18] Brent argues the district court erred in assigning a great deal of weight to the preference of...