Deyle v. Deyle, 20120157.

• Court: United States State Supreme Court of North Dakota
• Writing for the Court: CROTHERS
• Citation: 2012 ND 248,825 N.W.2d 245
• Parties: Christina DEYLE, Plaintiff and Appellant v. Eric DEYLE, Defendant and Appellee.
• Docket Number: No. 20120157.,20120157.
• Decision Date: 30 November 2012

825 N.W.2d 245
2012 ND 248

Christina DEYLE, Plaintiff and Appellant
v.
Eric DEYLE, Defendant and Appellee.

No. 20120157.

Supreme Court of North Dakota.

Nov. 30, 2012.

[825 N.W.2d 248]

Jerilynn Brantner Adams, Fargo, ND, for plaintiff and appellant.

John D. Bullis and Megan Elizabeth Kummer (appeared), Wahpeton, ND, for defendant and appellee.

CROTHERS, Justice.

[¶ 1] Christina Deyle appeals the district court judgment granting Eric Deyle primary residential responsibility of the parties' two minor children. We affirm the district court's award of primary residential responsibility to Eric Deyle. We reverse and remand for further proceedings because the district court failed to adequately explain its denial of summer parenting time, interim child support and attorney fees.

I

[¶ 2] Christina Deyle and Eric Deyle were married on September 8, 2007 and have two children together: H.F.D. born in 2004 and C.E.D. born in 2008. The parties separated in June 2010 when Eric Deyle left the marital home and moved into an apartment. Christina Deyle and the children remained in the marital home in Milnor, North Dakota until December 2011 when a foreclosure action was commenced after Eric Deyle ceased making mortgage payments. Christina Deyle and the children moved in with Christina Deyle's parents in Milnor. Christina Deyle was the primary caretaker of the children throughout the parties' separation.

[¶ 3] Christina Deyle commenced a divorce action and sought primary residential responsibility, spousal support and child support. Following trial, the district court awarded Eric Deyle primary residential responsibility and granted Christina Deyle parenting time. The district court did not award attorney fees to either party nor did it award interim child support to Christina Deyle.

II

[¶ 4] Christina Deyle argues granting Eric Deyle primary residential responsibility was clearly erroneous. “A district court's award of primary residential responsibility is a finding of fact, which will not be reversed on appeal unless it is clearly erroneous.” Morris v. Moller, 2012 ND 74, ¶ 5, 815 N.W.2d 266. “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, although there is some evidence to support it, on the entire record, we are left with a definite and firm conviction a mistake has been made.” Id. (quoting Doll v. Doll, 2011 ND 24, ¶ 6, 794 N.W.2d 425). In reviewing a district court decision, this Court “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. This is particularly relevant for custody decisions involving two fit parents.” Marsden v. Koop, 2010 ND 196, ¶ 8, 789 N.W.2d 531 (quoting Heinle v. Heinle, 2010 ND 5, ¶ 6, 777 N.W.2d 590).

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[¶ 5] “District courts must award primary residential responsibility of children to the party who will best promote the children's best interests and welfare.” Morris, 2012 ND 74, ¶ 6, 815 N.W.2d 266. “A district court has broad discretion in awarding primary residential responsibility, but the court must consider all of the relevant factors under N.D.C.C. § 14–09–06.2(1).” Morris, at ¶ 6. Here, the district court found factors (c), (d), (h) and (m) favored Eric Deyle. Factor (b) favored Christina Deyle. Factors (e) and (g) favored neither party, and factors (i), (j), (k) and ( l ) were irrelevant.

A

[¶ 6] Christina Deyle argues the district court erred in finding factor (d) favored Eric Deyle. Under factor (d) the court considers “[t]he 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.” N.D.C.C. § 14–09–06.2(1)(d). The district court found that “it is in the children's best interest to stay in Milnor to be near Christina's family (for both children) and to maintain continuity in community activities and school (at this time for the older child).” The district court explained:

“Christina's living situation is likely going to change at least two and perhaps three times in the foreseeable future; moving out of her parent's home into another home in Milnor, possibly moving to Wahpeton for school, and then moving to find work as a hygienist. While I commend her for continuing her education, stability and continuity is what is best for these children.”

Christina Deyle argues the district court erred as a matter of law by speculating about future events and by making findings that were not supported by any evidence.

[¶ 7] The district court did not misapply the law in its analysis regarding factor (d) by examining the effects of a potential future relocation by Christina Deyle. Traditionally, “[f]actor (d) require[d] consideration of the stability and quality of the child's past environment.” Marsden, 2010 ND 196, ¶ 19, 789 N.W.2d 531 (quotation omitted) (emphasis added). “[F]actor (e) use[d] a forward-looking approach to the stability of the family unit, its interrelations and environment, versus the backward-looking factor (d).” Lindberg v. Lindberg, 2009 ND 136, ¶ 13, 770 N.W.2d 252 (quotation omitted). Section 14–09–06.2(1), N.D.C.C., was amended in 2009, resulting in substantive changes to several of the best interest factors. 2009 N.D. Sess. Law ch. 149, § 5. Pre–2009 factors (d) and (e) were combined to create the amended factor (d). Sherry Mills Moore, chair of the Custody and Visitation Task Force formed by the State Bar Association of North Dakota, provided testimony to the legislature regarding the purpose of the amendments to N.D.C.C. § 14–09–06.2(1) contained in Senate Bill 2042. Moore testified that “[t]he proposed language in paragraph (d) combines and clarifies the concepts embodied in existing paragraphs (d) and (e).” A plain reading of the pre- and post-amendment factors confirms this.

[¶ 8] Pre–2009 factor (d) directed consideration of “[t]he length of time the child has lived in a stable satisfactory environment and the desirability of maintaining continuity.” N.D.C.C. § 14–09–06.2(1)(d) (2009). Pre–2009 factor (e) directed consideration of “[t]he permanence, as a family unit, of the existing or proposed custodial home.” N.D.C.C. § 14–09–06.2(1)(e) (2009). Current factor (d) incorporates consideration both of the length of time

[825 N.W.2d 250]

the child has lived in a stable home as well as the permanence or stability of the home environment and adds the forward-looking consideration of “the desirability of maintaining continuity in the child's home and community.” N.D.C.C. § 14–09–06.2(1)(d).

[¶ 9] Factor (d) no longer restricts the district court's analysis to past events. After the legislature incorporated pre–2009 factors (d) and (e) into the current factor (d), district courts now must look both forward and backward, just as the district court did in this case. The district court found granting Eric Deyle primary residential responsibility would provide greater continuity and stability because of Christina Deyle's potential relocations. This finding was supported by the record. The district court's finding factor (d) favored Eric Deyle is not clearly erroneous both because it is a correct application of law and because it is supported by the evidence.

B

[¶ 10] Christina Deyle argues the district court erred in finding factor (e) favored neither party. Courts applying factor (e) consider “[t]he willingness and ability of each parent to facilitate and encourage a close and continuing relationship between the other parent and the child.” N.D.C.C. § 14–09–06.2(1)(e). The district court found “the parties are both willing and able to foster the parental relationship of the other” and both parties recognized the importance of the other parent's role in the children's lives. The record reflects testimony from both Christina Deyle and Eric Deyle supporting this finding. The district court's finding factor (e) favored neither party is not clearly erroneous because it is supported by the evidence.

C

[¶ 11] Christina Deyle argues the district court erred in finding factor (h) favored Eric Deyle. Courts applying factor (h) consider “[t]he home, school, and community records of the child and the potential effect of any change.” N.D.C.C. § 14–09–06.2(1)(h). The district court noted the possibility of a relocation by Christina Deyle and also found Eric Deyle was involving the older child in the community. Christina Deyle argues the district court erred by speculating as to Christina Deyle's future.

[¶ 12] Factor (h) expressly requires that the court consider the potential effects of change. The court must look forward under this factor to determine whether foreseeable changes could impact a child's life in the home, school and community. Here, the district court noted the reasonable possibility of future relocation by Christina Deyle due to her anticipated education and employment in the dental field and the lack of those jobs in the Milnor area. From that evidence, the district court found Christina Deyle's likely move would have an adverse impact on the children. The district court also found Eric Deyle actively involved the older child in community activities. These findings are supported by the record. The district court's finding factor (h) favored Eric Deyle is not clearly erroneous because it is supported by the evidence.

D

[¶ 13] Christina Deyle argues the district court erred in finding factor (k) favored neither party because the district court did not consider the close bond the children have with their maternal grandparents. Under factor (k) the court considers:

“The interaction and interrelationship, or the potential for interaction and interrelationship, of the child with any person who resides in, is present, or

[825 N.W.2d 251]

frequents the household of a parent and who may significantly...