Cox v. Cox, 990279.

• Decision Date: 20 July 2000
• Docket Number: No. 990279.,990279.
• Citation: 613 N.W.2d 516,2000 ND 144
• Parties: Christi L. COX, Plaintiff and Appellant, v. Russell R. COX, Defendant and Appellee.
• Court: North Dakota Supreme Court

613 N.W.2d 516

2000 ND 144

Christi L. COX, Plaintiff and Appellant, v. Russell R. COX, Defendant and Appellee.

No. 990279.

Supreme Court of North Dakota.

July 20, 2000.

Leslie Johnson Aldrich, Johnson Law Office, Fargo, for plaintiff and appellant.

Monty G. Mertz, Mertz Law Office, Fargo, for defendant and appellee.

SANDSTROM, Justice.

[¶ 1] Christi L. Cox appealed from a divorce judgment awarding custody of her son to his father, Russell R. Cox. We conclude the trial court's custody decision is not clearly erroneous, and we affirm.

I

[¶ 2] In 1996, Russell Cox and Christi Cox met in Colorado and began living together. They eventually moved to North Dakota, where their son was born June 30, 1997, in Bismarck. The couple married on August 7, 1997, in Rugby. He was 28 years old, and she was 22.

[¶ 3] Russell Cox was born in Colorado Springs, Colorado, where he was raised by an aunt and uncle. He is generally healthy, but has a hormone deficiency for which he takes medication. He also suffers from anxiety attacks and is undergoing treatment for this condition. His medical conditions do not prevent him from working. Christi Cox is a Native American and an enrolled member of the Spirit Lake Sioux Tribe at Devils Lake. She was a foster child and was adopted and raised on a farm near Leeds. She suffers from "[s]plit personality, borderline identity disorder, and severe depression." She has taken various medications over the years and spent three years in residential psychiatric care in Fargo. She is suicidal. Because of her mental illnesses, Christi Cox is considered permanently disabled and has received Social Security disability benefits since she was 18 years old. The child also has some health problems, including gastroesophageal reflux and intolerance for dairy products.

[¶ 4] Lack of money plagued the couple throughout their relationship. They moved often and did not live in one place long enough for Russell Cox to obtain stable employment. The couple was supported primarily by Christi Cox's parents. They had a somewhat turbulent relationship, and after an incident in the fall of 1998 resulting in Russell Cox's incarceration for simple assault of Christi Cox, the couple separated.

[¶ 5] Christi Cox sued Russell Cox for divorce in November 1998, seeking custody of the child. A default divorce judgment granting her custody was entered in December 1998. Russell Cox, who had moved back to Colorado Springs, successfully moved to have the default judgment vacated, and requested he be granted custody of the child. During this time, Christi Cox moved back to the farm and lived with her parents while exploring the possibility of placing her son for adoption. She eventually gave custody of her son through a power of attorney to Jerry and Bonnie Johnson, a Leeds area farm couple, and moved to Arizona to attend school to become a pharmacy technician.

[¶ 6] During the divorce trial, Christi Cox testified that if she were awarded custody, she would seek to have her son adopted by the Johnsons. She further testified it would not be in the child's best interests to be in either her custody or Russell Cox's custody. The trial court found the evidence of domestic violence by Russell Cox was insufficient to raise the presumption against custody by the perpetrator, and found it would be in the child's best interests to be placed in his custody. The court awarded custody of the child to Russell Cox, and granted Christi Cox supervised visitation "[i]f she desires any visitation."

[¶ 7] The Indian Child Welfare Act, 25 U.S.C. § 1901, et seq., does not apply to the custody dispute in this divorce action because the Act is inapplicable to "an award, in a divorce proceeding, of custody to one of the parents." 25 U.S.C. § 1903(1). See Malaterre v. Malaterre, 293 N.W.2d 139, 145 (N.D.1980)

. The trial court had jurisdiction under N.D. Const. art. VI, § 8, and N.D.C.C. § 27-05-06. Christi Cox's appeal was 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

[¶ 8] Christi Cox argues the trial court erred in awarding custody of the child to Russell Cox.

[¶ 9] An award of custody is treated as a finding of fact, and this Court will not disturb a custody award unless it is clearly erroneous under N.D.R.Civ.P. 52(a). Brown v. Brown, 1999 ND 199, ¶ 10, 600 N.W.2d 869. A finding of fact is clearly erroneous only it if 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. Kjelland v. Kjelland, 2000 ND 86, ¶ 8, 609 N.W.2d 100. A reviewing court will not retry a custody case or substitute its judgment for that of the trial court, if the trial court's findings are supported by evidence in the record. Ackerman v. Ackerman, 1999 ND 135, ¶ 8, 596 N.W.2d 332.

[¶ 10] Custody decisions are based on the "best interests of the child" standard set forth in N.D.C.C. §§ 14-09-06.1 and 14-09-06.2(1). Reeves v. Chepulis, 1999 ND 63, ¶ 10, 591 N.W.2d 791. A district court has substantial discretion in making a custody decision, but it must consider all of the factors listed in N.D.C.C. § 14-09-06.2(1)(a)-(m). Severson v. Hansen, 529 N.W.2d 167, 168-69 (N.D.1995). A separate finding is not required for each statutory factor, but the court's findings should be stated with sufficient specificity so we can understand the factual basis for its decision. Schumacher v. Schumacher, 1999 ND 149, ¶ 16, 598 N.W.2d 131.

A

[¶ 11] Christi Cox argues the trial court erroneously awarded custody of the child to Russell Cox, because he abandoned the child and did not provide any emotional or financial support for him.

[¶ 12] There is evidence Russell Cox took an active part in all aspects of his son's care. Russell Cox testified Christi Cox did not want him to work because she was jealous of other women and because she could not care for the child alone, which was one of the reasons he had a difficult time finding stable employment. After his conviction for simple assault, Russell Cox was subject to a no contact order with Christi Cox and he moved back to Colorado Springs. The parties nevertheless contacted each other by telephone on several occasions and discussed the possibility of reconciliation. Russell Cox offered to provide Christi Cox plane tickets so she and the child could move to Colorado Springs, and his uncle also offered to assist Christi Cox and the child to travel to Colorado.

[¶ 13] Russell Cox and his uncle testified about their fruitless efforts to locate the child after Russell Cox moved to Colorado. Neither Christi Cox nor her mother would divulge the child's whereabouts to them. Russell Cox contacted social services and adoption agencies and tried to contact a tribal child protection service agent in an attempt to find the child. Christi Cox admitted she gave custody of the child to the Johnsons so they could seek termination of parental rights based on abandonment after one year had passed.

[¶ 14] Russell Cox did not pay support for the child after moving to Colorado. Although nonpayment of support is an important consideration in determining whether a parent has abandoned a child, it does not, in itself, constitute abandonment. See Hamers v. Guttormson, 2000 ND 93, ¶ 7, 610 N.W.2d 758

. The trial court reasoned:

Christi complained that Russell had "abandoned" [the child], because he did not send or pay any support. However, the evidence establishes that Russell made continuous attempts to have Christi and [the child] move to Colorado, and when that did not happen, he made efforts to locate [the child] and to respond to Christi's divorce action. Christi actively hid [the child] from Russell, in that her goal was to establish abandonment in order to pursue termination of Russell's parental rights. Russell at no time intended to abandon [the child].

[¶ 15] We conclude the trial court's finding Russell Cox did not abandon the child is not clearly erroneous.

B

[¶ 16] Christi Cox argues the trial court failed to consider evidence of domestic violence perpetrated by Russell Cox against her and the child.

[¶ 17] There is a rebuttable presumption against awarding custody to a parent who has perpetrated domestic violence. See Reeves, 1999 ND 63, ¶ 11,

591 N.W.2d 791. The presumption is triggered when the trial court finds "credible evidence that domestic violence has occurred, and there exists one incident of domestic violence which resulted in serious bodily injury or involved the use of a dangerous weapon or there exists a pattern of domestic violence within a reasonable time proximate to the proceeding ...." N.D.C .C. § 14-09-06.2(1)(j). When a trial court addresses whether evidence of domestic violence triggers the presumption, the court must make specific and detailed findings regarding the effect the allegations of domestic violence have on the presumption. See Holtz v. Holtz, 1999 ND 105, ¶ 27, 595 N.W.2d 1. Specific factual findings are not required when the evidence of domestic violence does not rise to the level of triggering the domestic violence presumption, but that evidence can still be considered by the court as one of the best-interests factors. See Schiff v. Schiff, 2000 ND 113, ¶ 24, 611 N.W.2d 191.

[¶ 18] The trial court addressed Christi Cox's allegations of domestic violence:

Christi claimed that Russell engaged in domestic violence. However, she related only a few incidents, the facts of which were disputed. During one incident, Christi hit Russell in the face when they were in the car together. He got out and hit the car, saying he did not want to hit her. In another incident she claimed Russell pushed her over in a chair she was sitting in. Russell denied this incident. Although this was supposed to have occurred in her parents' living room, both of her parents attended the entire trial and were in the

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