Conzemius v. Conzemius

• Citation: 2014 ND 5,841 N.W.2d 716
• Decision Date: 14 January 2014
• Docket Number: No. 20130125.,20130125.
• Court: United States State Supreme Court of North Dakota
• Parties: Trista Marie CONZEMIUS, Plaintiff, Appellant and Cross–Appellee v. Chad Thomas CONZEMIUS, Defendant, Appellee and Cross–Appellant.

841 N.W.2d 716

2014 ND 5

Trista Marie CONZEMIUS, Plaintiff, Appellant and Cross–Appellee

v.Chad Thomas CONZEMIUS, Defendant, Appellee and Cross–Appellant.

No. 20130125.

Supreme Court of North Dakota.

Jan. 14, 2014.

Michael L. Gjesdahl, Fargo, N.D., for plaintiff, appellant, and cross-appellee.

Jonathan T. Garaas, Fargo, N.D., for defendant, appellee, and cross-appellant.

SANDSTROM, Justice.

[¶ 1] Trista Conzemius appeals and Chad Conzemius cross-appeals from a divorce judgment awarding Trista Conzemius child support, denying her spousal support, determining residential responsibility for the parties' minor child, and dividing the parties' marital property. We affirm.

I

[¶ 2] Chad and Trista Conzemius were married in 1994. Chad Conzemius is a self-employed electrician, and Trista Conzemius is an assistant professor at a university. They have one child, D.T.C., who was born in 1997. The child has lived primarily with his mother since the parties separated. The district court found the mother has flexible hours and is not required to travel as part of her work. It found the father is frequently away from home for extended periods. The court found he receives income from two sources: Wayne's Electric and Schiele Mobility. The amount of his gross annual income from these two sources is disputed.

[¶ 3] In October 2011, Trista Conzemius sued for divorce. After a bench trial, the district court denied Trista Conzemius spousal support but awarded her primary residential responsibility of the child and $1,145 per month in child support. The court distributed the parties' marital assets and liabilities, requiring Chad Conzemius to pay an equalizing payment and to reimburse Trista Conzemius for attorney's fees.

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

II

[¶ 5] Trista Conzemius argues the district court erred in granting the father extended summer parenting time. She argues his parenting time should be kept relatively short and other restrictions should be in place because of the safety risks his alleged alcohol abuse poses to their child.

[¶ 6] The standard of review for a district court's parenting time decisions is well-established:

A trial court's determination of parenting time is a finding of fact subject to the clearly erroneous standard of review. Krueger v. Krueger, 2011 ND 134, ¶ 12, 800 N.W.2d 296. “In awarding visitation to the non-custodial parent, the best interests of the child, rather than the wishes or desires of the parents, are paramount.” Bertsch v. Bertsch, 2006 ND 31, ¶ 5, 710 N.W.2d 113. “We have stated visitation between a non-custodial parent and a child is presumed to be in the child's best interests and that it is not merely a privilege of the non-custodial parent, but a right of the child.” Hendrickson v. Hendrickson, 2000 ND 1, ¶ 21, 603 N.W.2d 896.

....

“[A]bsent a reason for denying it, some form of extended summer visitation with a fit non-custodial parent is routinely awarded if a child is old enough.” Dschaak v. Dschaak, 479 N.W.2d 484, 487 (N.D.1992)....

Deyle v. Deyle, 2012 ND 248, ¶¶ 17, 19, 825 N.W.2d 245. “A finding of fact is clearly erroneous if there is no evidence to support it, if the finding is induced by an erroneous view of the law, or if the reviewing court is left with a definite and firm conviction a mistake has been made.” Clark v. Clark, 2006 ND 182, ¶ 18, 721 N.W.2d 6. “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 v. Wolt, 2010 ND 26, ¶ 7, 778 N.W.2d 786 (quotation omitted).

[¶ 7] In response to evidence concerning the father's drinking, the court considered N.D.C.C. § 14–09–06.2(g) of the best interest factors, which concerns the mental and physical health of the parents, finding:

At trial, much attention was devoted to Chad's drinking and emotional stability. There are indications of both alcohol abuse and emotional stress or anger. Some or all of this may well be due to the divorce, but factor g ... favors Trista.

Although the court concluded this factor favors the mother, the mental and physical health of the parents is only one of the best interest factors. In arguing that the father's parenting time should be restricted, the mother fails to discuss the district court's consideration of the other best interest factors and how these other factors influenced its decision to award summer parenting time without including her proposed restraining provisions. For example, the court found factor (i), which gives weight to the preferences of a mature child, favors the father because of the child's mature preference for equal residential responsibility and the father's desire also to have shared responsibility. SeeN.D.C.C. § 14–09–06.2.

[¶ 8] After considering the best interest factors, the court awarded the mother primary residential responsibility and allotted the father six weeks of parenting time during the summer months. The court also stated, “Chad shall notify Trista of his intentions for the coming summer by no later than May 15 of each year.”

[¶ 9] After reviewing the district court's analysis under the best interest factors, we are not left with a definite and firm conviction a mistake has been made in awarding the father summer parenting time. Moreover, in light of the father's busy work schedule during the summer months and the difficulty in communication among the parties, the court reasonably implemented guidelines to help the mother and father work out his parenting time.

[¶ 10] We conclude the court's award of parenting time to the father, as well as the summer arrangement it has implemented, is not clearly erroneous.

III

[¶ 11] Trista Conzemius argues the district court erred in not allowing the child to testify a second time about his preference for parenting time.

[¶ 12] Review of evidentiary matters is well-established. “ ‘A district court has broad discretion on evidentiary matters, and we will not overturn its admission or exclusion of evidence on appeal unless that discretion has been abused.’ ” Schwab v. Zajac, 2012 ND 239, ¶ 19, 823 N.W.2d 737 (quoting Forster v. West Dakota Veterinary Clinic, Inc., 2004 ND 207, ¶ 40, 689 N.W.2d 366).

[¶ 13] In response to the mother's request to have the child testify a second time about his preference for parenting time, the district court stated:

[H]ere's my ruling and the reasons why.... [Y]esterday it was unprecedented in my experience. Typically it is much faster, there are not nearly as many questions on the part of counsel. And what I'm hearing is that [the child] has since reacted largely to some of the questions that were asked and some information that was posed to him in the process. And now he's very emotional and in this very emotional state he thinks he's changed his mind.

Yesterday I think we all had a good and fair and balanced opportunity to hear from [the child] and I'm just not going to put him through anything further.

So I'm not going to conduct a further interview in Chambers and I'm not going to permit that [the child] be called.

And the other simple reality is that at the end of the day I need to make a best interests analysis. Certainly [the child's] preference is one of the enumerated factors, but it's only one of the factors. And I feel at this time I have heard more than enough to factor that small piece of the pie into the equation.

[¶ 14] “An abuse of discretion is never assumed; the burden is upon the party seeking relief to affirmatively establish it.... [A] trial court abuses its discretion only when it acts in an arbitrary, unconscionable, or unreasonable manner, or when its decision is not the product of a rational mental process leading to a reasoned determination.” Grinaker v. Grinaker, 553 N.W.2d 204, 207 (N.D.1996).

[¶ 15] We conclude the court's decision to not allow the child to testify a second time was not arbitrary, unreasonable, or unconscionable.

IV

[¶ 16] Trista Conzemius argues the district court, in valuing and distributing the parties' retirement assets, erroneously used their gross, pre-tax value, arguing this results in disproportionate tax impacts because more of the marital property given to her is in pre-tax value than what was given to Chad Conzemius.

[¶ 17] We have explained our review of marital property distributions:

A district court's distribution of marital property is treated as a finding of fact, which we review under the clearly erroneous standard of review.... We view the evidence in the light most favorable to the district court's findings, which are presumptively correct....

A district court is required to make an equitable distribution of divorcing parties' marital property and debts. All property held by either party, whether held jointly or individually, is considered marital property, and the court must determine the total value of the marital property before making an equitable distribution. Marital property ordinarily is valued as of the date of trial. After the court values the property, the court must then equitably divide the entire marital estate under the Ruff–Fischer guidelines, which require the court to consider the following factors in the division:

The respective ages of the parties, their earning ability, the duration of the marriage and conduct of the parties during the marriage, their station in life, the circumstances and necessities of each, their health and physical condition, their financial circumstances as shown by the property owned at the time, its value at the time, its income-producing capacity, if any, whether accumulated before or after the marriage, and such other matters as...