Datz v. Dosch

• Decision Date: 29 August 2013
• Docket Number: No. 20120435.,20120435.
• Citation: 836 N.W.2d 598,2013 ND 148
• Parties: Kurt G. DATZ, Plaintiff and Appellant v. Helen A. DOSCH, Defendant and Appellee.
• Court: North Dakota Supreme Court

836 N.W.2d 598

2013 ND 148

Kurt G. DATZ, Plaintiff and Appellant

v.Helen A. DOSCH, Defendant and Appellee.

No. 20120435.

Supreme Court of North Dakota.

Aug. 29, 2013.

Blake Dylan Hankey and Kelsey Lee Gentzkow, Grand Forks, ND, for plaintiff and appellant; submitted on brief.

Leslie Johnson Aldrich (argued) and Joshua B.E. Nyberg (appeared), Fargo, ND, for defendant and appellee.

CROTHERS, Justice.

[¶ 1] Kurt Datz appeals a divorce judgment awarding primary residential responsibility of the parties' two minor children to Helen Dosch, distributing the marital estate after finding economic and non-economic fault by Datz and ordering Datz to pay child support and one-half of the cost of hiring a nanny for the children. We reverse on primary residential responsibility, affirm the remainder of the judgment and remand.

I

[¶ 2] Kurt Datz was 48 and Helen Dosch was 57 at the time of trial. They met while attending medical school and married in 1988. Their first child was born in 1990. After completing medical school, the parties moved to New York City, New York to begin their residencies. The parties' second child was born there in 1994. The family then moved to Havre, Montana, where their third child was born in 1996.

[¶ 3] The family moved to Bismarck in 1998 where Dosch worked five days a month and Datz worked full-time as a general internist. Datz began a vitamin business in 1998. The family moved to Dickinson in 2002 to accommodate Dosch's job as an anesthesiologist. Datz opened medical spas in Bismarck and Minot in 2004. Both practices included a spa and medical practice. Datz traveled extensively in support of his vitamin business and other endeavors. Dosch's position in Dickinson required her to work two weeks on and two weeks off. The parties hired a nanny to assist with caring for the children.

[¶ 4] In 2006, Dosch took a part-time (.7 time) position in Fargo, working about two weeks a month. Datz and the children moved from Dickinson to Bismarck. Dosch resided in the family home in Bismarck when not living in a Fargo apartment while working there.

[¶ 5] In March and April 2011, Datz closed the Minot and Bismarck spas and medical practices without consulting Dosch. After closing the Bismarck and Minot facilities, some of the medical equipment used in the facilities was unaccounted for. Evidence was disputed about the extent of missing equipment. Loans had been taken out for the equipment in both parties' names, and Datz stopped making the loan repayments.

[¶ 6] The district court found Datz had an affair in 2011. Datz eventually admitted his relationship with the other woman, telling Dosch that he had ended the relationship, but had not, even after the parties went to marriage counseling. Datz also admitted to relationships with several other women during the marriage. During the 2011 affair, Datz spent thousands of dollars on the other woman, including buying jewelry and taking her on out-of-state trips. In the summer of 2011, Dosch went to the other woman's house and found Datz there. An altercation ensued where Dosch scratched Datz. Dosch was arrested for domestic violence.

[¶ 7] In June 2011, Dosch hired a nanny to help care for the children. In August 2011, Datz came to the family home and, after reading a letter from his attorney, became angry and accused the nanny of providing Dosch with information against him. The nanny quit soon thereafter. Dosch hired a new nanny who maintained the household and cared for the children when Dosch was working in Fargo.

II

[¶ 8] Datz argues the district court erred granting Dosch primary residential responsibility of the minor children by failing to make adequate findings under or analysis of the best interest factors in N.D.C.C. § 14–09–06.2.

[¶ 9] District courts have substantial discretion in making determinations of primary residential responsibility; however, they must consider all factors under N.D.C.C. § 14–09–06.2(1). Wolt v. Wolt, 2010 ND 26, ¶ 9, 778 N.W.2d 786. A separate finding for each statutory factor is not necessary, but “the court's findings must contain sufficient specificity to show the factual basis for the [court's] decision.” Id. It is not enough for the district court merely to recite or summarize testimony presented at trial to satisfy the requirement that findings of fact be stated with sufficient specificity. Haroldson v. Haroldson, 2012 ND 44, ¶ 20, 813 N.W.2d 539. Rather, specific findings explaining how the statutory factors apply in the case are required. Id. We also have stated:

“Under N.D.R.Civ.P. 52(a), a district court trying an action upon the facts without a jury ‘must find the facts specially.’ A district court's findings of fact must be sufficient to enable an appellate court to understand the factual determinations made by the district court and the basis for its conclusions of law. ‘A district court's “findings of fact ... should be stated with sufficient specificity to assist the appellate court's review and to afford a clear understanding” ’ of the court's decision. A district court's findings are adequate if this Court can discern from them the factual basis for the district court's decision.”

Niska v. Falconer, 2012 ND 245, ¶ 10, 824 N.W.2d 778 (quotations omitted).

[¶ 10] Here, the district court issued a memorandum opinion and order adopting the findings of fact and conclusions of law submitted by Dosch. The district court's memorandum opinion recognized shortcomingsin the findings of fact and conclusions of law, stating:

“Even though the proposed Findings of Fact, Conclusions of Law, and Order for Judgment do not specifically set out the factors in 14–09–06.2, N.D.C.C., those documents are in enough detail, and can be read to have addressed the factors, for the Court to make a finding that the best interests and welfare of the children would be for Helen to have primary residential responsibility.”

[¶ 11] Regarding primary residential responsibility, the district court found:

“PARENTAL RESPONSIBILITY. HD will be graduating from high school in the spring of 2013; she is already age 18. LD is in ninth grade and has stability with remaining in the marital home. The children have jobs. Helen was awarded primary residential responsibility in the Interim Order. The children have been doing fine and they have been flourishing since the Interim Order in February 2012.

“Pursuant to the Interim Order, when Kurt was allowed parenting time with the children of overnight every other weekend at his apartment, he did not have the children there overnight; not even once. Kurt has never had the children overnight for parenting time since February 2012. Kurt did not make any effort to make his apartment family friendly.

“Although Kurt took his girlfriend ... on a vacation to Las Vegas in August 2012, he did not take the children on vacation out of the state. Helen took the children on a ski trip to their condo in Montana. Helen took HD to tour colleges. Helen is the one who created the children's holidays and made them special. She created family time. It was clear from the testimony that Helen did most of the traditionally female household tasks, with the help from a nanny.

“Kurt was ordered to pay family support and child support pursuant to the Interim Order. However, he did not make any child support payments until after an income withholding order was entered in June 2012. Kurt did not make any payments of family support pursuant to the Interim Order either. Kurt continues to be in arrears for child support and family support. A Money Judgment of $140,005.44, plus interest at the rate of six and one-half percent (6.5%) per annum, was entered against him. Kurt has not paid or attempted to pay any family support for the months of September or October 2012 (after entry of the Money Judgment).

“Helen has looked for medical employment positions in Bismarck, North Dakota. New medical employment could be a possibility for Helen as Sanford Health will be opening a facility in the Bismarck area.

“Two of the parties' children have diabetes. Kurt contends that he did the majority of the diabetes control for the children, yet during cross-examination he admitted that his oldest son was in an out-of-state boarding school for nearly three years; this was from 2005 to 2008. That testimony would indicate that Kurt did not do the majority of that child's diabetes control for those three years.

“Kurt and Helen employed nannies who assisted them throughout the years. Helen was the party who hired the nannies. The last two nannies have been Registered Nurses. The current nanny is a Registered Nurse and testified at court that she cares for the children when Helen is unavailable. It was clear from Kurt's notes to the nanny that he thought [the oldest son] would be able to take care of the two younger children. [The oldest son] has had difficulties of his own. The nanny assists in getting [the oldest son] up in the morning. It is best to have an adult present with teenagers. Helen purchases the groceries for the family, cooks for the family, freezes meals, and transports the children. Helen is the parent who has secured the nanny to be with the children when she is unable to be with them.

“Kurt's whereabouts have been somewhat a mystery. His work schedule (which was submitted to court as an exhibit) clearly shows that during points of time he has been working overnights, long days, and on weekends at St. Alexius. Kurt would disappear at times. Kurt also traveled to Florida, Tennessee and elsewhere to establish the vitamin company and to be at the Tennessee spa. Kurt's girlfriend ... accompanied him on some of these trips. Pursuant to N.D.C.C. § 14–09–06.2 factor j, ‘Evidence of domestic violence,’ Helen did commit domestic violence upon Kurt in June 2011 when she discovered Kurt with [his girlfriend at a friend's] home. Helen did not use a dangerous weapon, Kurt did not sustain any serious bodily injury accordingly, and there is no...