Corbett v. Corbett, 20000291.

• Decision Date: 08 June 2001
• Docket Number: No. 20000291.,20000291.
• Citation: 2001 ND 113,628 N.W.2d 312
• Parties: Kristi S. CORBETT, Plaintiff, Appellant and Cross-Appellee, v. James R. CORBETT, Defendant, Appellee and Cross-Appellant.
• Court: North Dakota Supreme Court

628 N.W.2d 312

2001 ND 113

Kristi S. CORBETT, Plaintiff, Appellant and Cross-Appellee, v. James R. CORBETT, Defendant, Appellee and Cross-Appellant.

No. 20000291.

Supreme Court of North Dakota.

June 8, 2001.

Ralph F. Carter, Moosbrugger, Carter & McDonagh, P.L.L.P., Grand Forks, ND, for plaintiff, appellant, and cross-appellee.

Shirley L. Jahnke, Grand Forks, ND, for defendant, appellee, and cross-appellant.

NEUMANN, Justice.

[¶ 1] Kristi Corbett appeals and James Corbett cross-appeals from a divorce decree deciding property division, child custody, child support, and spousal support. We affirm the trial court's child custody award. We conclude the trial court's property division is not clearly erroneous; however we reverse the spousal support and child support awards and remand for further proceedings, and to the extent the spousal support award is intertwined with the property division, the court may reconsider its property division.

I

[¶ 2] James and Kristi Corbett were married in May 1995 and had two children. In 1999, Kristi Corbett sued James Corbett for divorce. Pending trial, James and Kristi Corbett stipulated to joint legal and physical custody of the children, and they agreed the children would continue to live in the marital home and each parent would alternate living in the marital home on a weekly basis. The trial court appointed a guardian ad litem for a custody evaluation. The guardian ad litem recommended awarding the parties joint legal and shared physical custody of the children, with James Corbett designated as primary custodian.

[¶ 3] The trial court granted the parties a divorce and divided their marital property. The court granted the parties joint legal custody of the children and awarded James Corbett physical custody. The court decided Kristi Corbett's presumptive child support obligation was $385 per month, but granted a downward deviation to $327 per month for extended visitation and allowed each party to claim one child as a dependent for income tax purposes. The court ordered James Corbett to pay Kristi Corbett $327 per month in spousal support for seven years to offset her child support obligation. Kristi Corbett appealed, and James Corbett cross-appealed.

II

[¶ 4] Kristi Corbett argues the trial court erred in awarding James Corbett physical custody of the children.

[¶ 5] In deciding the best interests and welfare of children for purposes of awarding custody, a trial court must consider the factors set forth in N.D.C.C. § 14-09-06.2(1):

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.

[¶ 6] A trial court need not make specific findings for each statutory factor, but the court should consider all relevant factors. E.g., Kjelland v. Kjelland, 2000 ND 86, ¶ 8, 609 N.W.2d 100

. A court's custody determination is a finding of fact which will not be reversed on appeal unless clearly erroneous. Id. 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. Id. We give due regard to the trial court's opportunity to assess the credibility and observe the demeanor of witnesses, see Wagner v. Wagner, 2000 ND 132, ¶ 12, 612 N.W.2d 555, and we do not retry custody issues or reassess the credibility of witnesses if the court's decision is supported by evidence in the record. Kjelland, at ¶ 8. We will not reverse a trial court's factual findings merely because we may have viewed the evidence differently, and a choice between two permissible views of the weight of the evidence is not clearly erroneous. E.g., Hentz v. Hentz, 2001 ND 69, ¶ 6, 624 N.W.2d 694.

[¶ 7] The trial court analyzed the best interests and welfare of the children under N.D.C.C. § 14-09-06.2, and awarded the parties joint legal custody with physical custody to James Corbett. The court said most of the statutory factors for deciding custody favored neither parent, but subdivisions (c), (d), and (e) favored James Corbett. The court said both parents had an equal disposition to provide material needs for the children, but James Corbett's mother, Fran Corbett, testified she provided extensive day care for the children in the marital home and she would not continue to provide that day care if Kristi Corbett received physical custody of the children. The court found Fran Corbett had been a primary caretaker of the children, and her continued presence and involvement in the children's lives favored James Corbett. The court recognized the guardian ad litem's recommendation that James Corbett appears very stable in his employment and has long-term plans to reside in the marital home, but Kristi Corbett may have changes in her temporary living arrangements and her employment because she wanted to go back to school. The court found the children's relatively stable environment would be disrupted if Kristi Corbett were awarded custody. The court also recognized Kristi Corbett had an extramarital affair, which caused undue strain on the parties' relationship and indirectly and adversely affected the children. The court noted the guardian ad litem's concern about James Corbett's mental health, but the court said he had gone through stages of loss with the marriage and he was dealing with the situation better. The court found awarding physical custody to James Corbett would provide the most stability and least disruption for the children.

[¶ 8] Kristi Corbett argues the trial court erred in finding three statutory factors favored awarding physical custody of the children to James Corbett. She argues those factors favored neither party, but the court found they favored James Corbett because Fran Corbett testified she would not continue to provide day care for the children if the court awarded Kristi Corbett custody. Kristi Corbett argues Fran Corbett's testimony constitutes emotional blackmail that permeated the court's best interests analysis. Kristi Corbett argues, except for Fran Corbett's testimony, the evidence favored awarding her physical custody of the children. She claims James Corbett was cold to her and pushed her away when she initiated affection. She argues that evidence constituted emotional abuse under N.D.C.C. § 14-09-06.2(1)(j), (k), or (m), and favored her. She argues evidence about James Corbett's mental health favored her under N.D.C.C. § 14-09-06.2(1)(g). She claims the evidence weighed heavily in favor of her receiving custody of the children, and the court did not afford sufficient weight to the testimony of her witnesses.

[¶ 9] We decline to characterize Fran Corbett's testimony as emotional blackmail, which would preclude awarding physical custody of the children to James Corbett. Fran Corbett is not a party to the divorce action, and she has no legal obligation to provide day care for the children. The permanence of the existing or proposed custodial home is a relevant factor in deciding child custody, see N.D.C.C. § 14-09-06.2(1)(e), and the trial court was entitled to give appreciable weight to Fran Corbett's testimony about the conditions under which she would continue to provide day care for the children. We agree with the guardian ad litem that the custody decision was a close issue. However, we decline Kristi Corbett's invitation to reweigh her evidence about the best interests and welfare of the children. We do not retry custody issues or substitute our judgment for that of the trial court if its decision is supported by evidence in the record. Kjelland, 2000 ND 86, ¶ 8,609 N.W.2d 100. There is evidence in this record to support the trial court's custody decision, and we are not left with a definite and firm conviction the court made a mistake in awarding physical custody of the children to James Corbett. We therefore conclude the court's custody decision is not clearly erroneous.

III

[¶ 10] In his cross-appeal, James Corbett seeks reversal of the trial court's decisions on rehabilitative spousal support and allocation of the children as dependents for income tax purposes. He also seeks a remand for redetermination of the property distribution and child support award.

A

[¶ 11] James Corbett argues the trial court erred in making a grossly disparate property distribution....