Duff v. Kearns-Duff, 20100116.

• Court: United States State Supreme Court of North Dakota
• Writing for the Court: VANDE WALLE
• Citation: 2010 ND 247,792 N.W.2d 916
• Parties: David E. DUFF, Plaintiff and Appellant v. Martha S. KEARNS-DUFF, Defendant and Appellee.
• Docket Number: No. 20100116.,20100116.
• Decision Date: 21 December 2010

792 N.W.2d 916
2010 ND 247

David E. DUFF, Plaintiff and Appellant
v.
Martha S. KEARNS-DUFF, Defendant and Appellee.

No. 20100116.

Supreme Court of North Dakota.

Dec. 21, 2010.

792 N.W.2d 918

Robert John Schultz, Fargo, N.D., for plaintiff and appellant.

James R. Brothers, Fargo, N.D., for defendant and appellee.

VANDE WALLE, Chief Justice.

[¶ 1] David Duff appealed from a divorce judgment awarding Martha Kearns-Duff physical custody of their two minor children, awarding Duff rehabilitative spousal support, and allowing Kearns-Duff to claim the children as dependents for federal and state tax income taxes. We affirm the district court's award of rehabilitative spousal support; however, we conclude the court relied upon an impermissible factor in awarding Kearns-Duff custody of the children and we reverse the court's custody decision and remand for reconsideration.

I

[¶ 2] Duff and Kearns-Duff were married in 1994 in Tucson, Arizona. During the marriage, Kearns-Duff obtained a medical degree from the University of Arizona. The couple moved to Phoenix in 1997, and Kearns-Duff completed a surgical internship in San Francisco from July 1998 to June 1999, while Duff remained in Phoenix. Duff has degrees in history and biology and obtained a master's degree in public administration from the University of Arizona in 1996. He worked as an emergency services technician and patient care technician with a medical center in Tucson from 1990 to 1995 and as a program manager and consultant with the Arizona Department of Health Services from 1997 to 2001. Kearns-Duff completed a general surgery residency in Phoenix from July 1999 to June 2001, and she completed a radiology residency in Connecticut from July 2001 to June 2005. The couple moved to Connecticut in 2001, where their oldest child was born in 2004. Duff worked as an emergency management consultant in Connecticut from 2001 through 2003. From 2003 to 2004, he was an adjunct lecturer on terrorism and emergency preparedness at a university in Connecticut, and during that time, he was also employed in New York as an emergency manager. He was a professor of Emergency Management and Homeland Security at Metropolitan College in New York from 2004 to 2005. The family moved to Durango, Colorado, in June 2006, where their youngest child was born, and Kearns-Duff worked as a radiologist at a hospital from July 2006 to June 2007. The family moved to Fargo in June 2007, and Kearns-Duff has worked as a radiologist at MeritCare Health System in Fargo since June 2007. Duff is currently enrolled in a doctoral program in emergency management at North Dakota State University.

[¶ 3] At the time of their 2010 divorce, Kearns-Duff was almost 40 years old, and in 2009, she earned about $600,000 as a radiologist at MeritCare. Duff was 42 years old and was enrolled in a doctoral program in emergency management at North Dakota State University. The district court accepted the parties' stipulation for a nearly equal distribution of their marital assets and liabilities, with each party receiving about $194,000 in marital property. After a bench trial, the court awarded Kearns-Duff physical custody of the parties' two minor children and ordered her to pay Duff rehabilitative spousal support starting on March 1, 2010, at $9,000 per month for two years, then $8,000 per month for one year, and thereafter decreasing the amount each year by $1,000 per month until the last payment of $2,000 on February 1, 2019. The court reserved a decision on child support and stated in an amended judgment that because

792 N.W.2d 919

Kearns-Duff's income was at least three times Duff's income, the presumptive amount of child support was rebutted under N.D. Admin. Code § 75-02-04.1-09(2)(l). The court allowed Kearns-Duff to claim the children as dependents for federal and state income taxes.

II

[¶ 4] Duff argues the district court clearly erred in awarding Kearns-Duff physical custody of the parties' two minor children.

[¶ 5] This Court's standard of review of custody decisions is well-established:

We exercise a limited review of child custody awards. A district court's decisions on child custody, including an initial award of custody, are treated as findings of fact and will not be set aside on appeal unless clearly erroneous. 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. Under the clearly erroneous standard of review, we do not reweigh the evidence or reassess the credibility of witnesses, and we 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. A choice between two permissible views of the weight of the evidence is not clearly erroneous, and our deferential review is especially applicable for a difficult child custody decision involving two fit parents.

Sorenson v. Slater, 2010 ND 146, ¶ 7, 786 N.W.2d 739 (quoting Hartleib v. Simes, 2009 ND 205, ¶ 24, 776 N.W.2d 217).

[¶ 6] A district court shall award physical custody to the person who will better promote the best interests and welfare of the children. Heinle v. Heinle, 2010 ND 5, ¶ 5, 777 N.W.2d 590. As we explained in Heinle, at ¶ 5, as part of the best interests analysis, a district court must consider all relevant factors specified in N.D.C.C. § 14-09-06.2(1), which provided 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.

792 N.W.2d 920

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 ... as defined in section 14-07.1-01....

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....

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.

...