Doll v. Doll

• Decision Date: 08 February 2011
• Docket Number: No. 20100133.,20100133.
• Citation: 2011 ND 24,794 N.W.2d 425
• Parties: Sarah A. DOLL, Plaintiff and Appelleev.Andrew D. DOLL, Defendant and Appellant.
• Court: North Dakota Supreme Court

794 N.W.2d 425

2011 ND 24

Sarah A. DOLL, Plaintiff and Appellee

v.Andrew D. DOLL, Defendant and Appellant.

No. 20100133.

Supreme Court of North Dakota.

Feb. 8, 2011.

Timothy P. Hill, Fargo, N.D., for plaintiff and appellee.Craig M. Richie, Fargo, N.D., for defendant and appellant.MARING, Justice.

[¶ 1] Andrew Doll appeals from a judgment awarding primary residential responsibility of the parties' minor children to Sarah Doll, now known as Sarah Claeys, and order denying his motion to amend the judgment.¹ We conclude the trial court did not clearly err in awarding primary residential responsibility to Claeys. Therefore, we affirm.

I

[¶ 2] Andrew Doll and Sarah Claeys married on June 22, 2002. A few months later, Claeys moved out of the marital home and filed for divorce. A default judgment granting the parties a divorce was entered on February 10, 2003. In the spring of 2003, the parties reunited, although they never remarried. Claeys subsequently informed Doll she was expecting a child. The child, R.M.D., was born later that year. Doll, who is not the biological father of R.M.D., signed a voluntary paternity acknowledgment and is listed as the father on the child's birth certificate. In 2006, the parties had a second child, D.A.D.

[¶ 3] In the spring of 2008, the parties separated again and Claeys moved out of the parties' home in Moorhead to an apartment in Fargo. Initially, the parties agreed to share residential responsibility of the children on an every-other-day basis. Finding the schedule unstable, however, they later agreed to a three-days-on, three-days-off schedule. In September 2008, Claeys informed Doll she was changing their agreement and assuming primary residential responsibility of the children. Doll was to see the children one night a week and every other weekend and holiday. Doll did not consent to the new arrangement and, consequently, moved for primary residential responsibility of the children in Minnesota. Claeys moved for primary residential responsibility in North Dakota. However, because Claeys' attorney was not licensed to practice in Minnesota, Doll agreed to have the case heard in North Dakota in exchange for a stipulation of his paternity to R.M.D., the parties' oldest child.

[¶ 4] On March 3, 2009, the judicial referee issued an interim order, awarding the parties joint residential and decision-making responsibility. The parties were to share residential responsibility on a weekly basis. In addition, the referee asked each party to submit the name of a custody investigator and share the expense for the appointment. Jason Loos was appointed as the custody investigator. He issued his initial report on July 2, 2009, and found none of the best interests of the child factors favored Claeys, two of the factors favored Doll, and the remaining factors favored both parties. Specifically, Loos found Claeys made false allegations of sexual abuse, in bad faith, against Doll. He further found Claeys was unwilling to foster a relationship between the children and Doll. Accordingly, he recommended Doll be awarded primary residential responsibility of the parties' minor children. On February 5, 2010, Loos issued a supplemental report, this time recommending the parties share both residential and decision-making responsibility.

[¶ 5] A three-day trial took place February 8 - 10, 2010. Both parties testified on their behalf. The trial court also heard testimony from Loos, the parties' friends, and family members. When asked to clarify the change in his 2009 and 2010 recommendations, Loos explained the parties should continue the parenting schedule because they have been able to make it work. On March 8, 2010, the court issued its findings of fact, conclusions of law, and order for judgment, awarding primary residential responsibility of the parties' minor children to Claeys. Doll appeals, arguing the trial court clearly erred by awarding primary residential responsibility of the children to Claeys.

II

[¶ 6] An award of primary residential responsibility is a finding of fact that will not be reversed on appeal unless it is clearly erroneous. Molitor v. Molitor, 2006 ND 163, ¶ 6, 718 N.W.2d 13. 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. “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 [parenting schedule] decision merely because we might have reached a different result.” Wolt v. Wolt, 2010 ND 26, ¶ 7, 778 N.W.2d 786.

[¶ 7] In an initial parenting schedule decision, a trial court must award residential responsibility to the parent who will best promote the best interests and welfare of the children. Wolt, 2010 ND 26, ¶ 8, 778 N.W.2d 786. “In deciding the children's best interests, the court must consider all relevant factors specified in N.D.C.C. § 14–09–06.2(1).” Id. At the time this case was filed, N.D.C.C. § 14–09–06.2(1) ² outlined the following factors for assessing the best interests and welfare of the child:

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.

[¶ 8] Although a trial court has broad discretion in awarding primary residential responsibility, the court must consider all of the relevant factors under N.D.C.C. § 14–09–06.2(1)(a)–(m). Wolt, 2010 ND 26, ¶ 9, 778 N.W.2d 786. The court need not make separate findings for each factor, but its findings of fact must be stated with sufficient specificity to enable a reviewing court to understand the factual basis for the court's decision. Molitor, 2006 ND 163, ¶ 6, 718 N.W.2d 13. In addition, a trial court has discretion “in deciding what weight to assign a custody investigator's conclusion” and need not follow a custody investigator's recommendation. Wolt, at ¶ 9.

[¶ 9] Here, the trial court considered all of the best interests of the child factors and made specific findings for each factor. The court found factors (a), (e), (f), (g), (i), (j), (k), ( l ), and (m) favored neither parent and factors (b), (c), and (h) favored Claeys. The court found that only factor (d) favored Doll.

III

[¶ 10] Doll argues the trial court clearly erred by failing to consider all of the best interests of the child factors and by giving undue weight to factor (k), failing to consider Claeys' frustration of his parenting time and her parental alienation, and failing to consider how Claeys' “chronic lying, dishonesty, multiple relationships, and manipulation discredited her moral fitness as a parent.” After conducting an extensive review of the record, we conclude the trial court's findings of fact are not clearly erroneous.

A

[¶ 11] Doll argues the trial court erred by failing to consider all of the best interests of the child factors and by giving undue weight to factor (k). The record, however, does not support Doll's argument. In its decision, the trial court made specific findings for each of the factors listed under N.D.C.C. § 14–09–06.2(1)(a)–(m) and the weight each factor had in assessing the best interests of the children.

[¶ 12] Under factor (a), the trial court found that both parents loved and cared for their children. The court also found each parent has developed deep emotional bonds with the children. Accordingly, the trial court concluded factor (a) did not favor either party. The record supports the trial court's conclusion.

[¶ 13] Under factor (b), the trial court found that while both parents have shown the capacity and disposition to provide the children with love and affection, Claeys has been primarily involved in the education of the children. In particular, the court found Claeys was the parent who enrolled R.M.D. in pre-kindergarten classes and has been responsible for scheduling the parent-teacher conferences. Thus, the court concluded factor (b) slightly favored Claeys. The record supports the trial court's conclusion. At trial, Claeys testified she enrolled R.M.D. in the “Gear Up for Kindergarten” program to prepare her for kindergarten. The record further shows Claeys enrolled R.M.D. in hockey, paid for the...