Fonder v. Fonder

• Decision Date: 23 October 2012
• Docket Number: No. 20120134.,20120134.
• Parties: Richie FONDER, Plaintiff and Appellant v. Bobbi FONDER, Defendant and Appellee.
• Court: North Dakota Supreme Court

823 N.W.2d 504

2012 ND 228

Richie FONDER, Plaintiff and Appellant

v.Bobbi FONDER, Defendant and Appellee.

No. 20120134.

Supreme Court of North Dakota.

Oct. 23, 2012.

Paul M. Probst, Minot, N.D., for plaintiff and appellant.

Jennifer M. Stanley, Minot, N.D., for defendant and appellee.

MARING, Justice.

[¶ 1] Richie Fonder appeals from a judgment awarding him and Bobbi Fonder equal primary residential responsibility ¹ of the parties' three minor children and an order denying his motion under N.D.R.Civ.P. 59(j) for reconsideration. We conclude the trial court did not abuse its discretion in denying the Rule 59(j) motion and did not clearly err in awarding equal primary residential responsibility to him and Bobbi Fonder. Therefore, we affirm.

I

[¶ 2] Richie Fonder and Bobbi Fonder were married on September 28, 1996. The parties have three children together and both live in the Minot, North Dakota, area.

[¶ 3] In May 2008, the parties separated and mutually agreed to share primary residential responsibility, with the children spending alternating weeks with each parent. On August 11, 2008, Richie Fonder brought a divorce action seeking primary residential responsibility of the children. At an interim hearing, the trial court continued the shared parenting arrangement until it could make a final primary residential responsibility determination.

[¶ 4] Since the parties' separation, Richie Fonder has remained in the marital home. Bobbi Fonder moved into a shelter for one month following the separation. She then lived with her sister for several months. Since the fall of 2008, she has lived with her boyfriend near Minot, North Dakota.

[¶ 5] A two-day trial was held in January 2010. During the trial, both parties made allegations regarding the illegal drug use by the other parent. Richie Fonder and Bobbi Fonder both admitted to having used illegal drugs in the past; however, both denied currently using illegal drugs.

[¶ 6] On August 11, 2011, the trial court issued its findings of fact, conclusions of law, order for judgment, and judgment. The trial court applied N.D.C.C. § 14–09–06.2, as amended effective August 1, 2009, in reaching its decision. The trial court found factors (a), (b), (c), (d), (e), (f), (g), (h), and (k) weighed equally among each parent while factors (i), (j), ( l ), and (m) were inapplicable. The trial court awarded the parties equal primary residential responsibility.

[¶ 7] Richie Fonder moved to amend the judgment under N.D.R.Civ.P. 59(j), arguing the trial court applied the incorrect version of N.D.C.C. § 14–09–06.2, as amended effective August 1, 2009, to a divorce action commenced in 2008. The trial court denied the motion concluding that, although it had improperly applied the post-amendment version of the statute, its findings of fact and conclusions of law remained the same applying the appropriate version of N.D.C.C. § 14–09–06.2. Richie Fonder appeals, arguing the trial court's decision awarding him and Bobbi Fonder equal primary residential responsibility was clearly erroneous because (1) the trial court applied the incorrect version of N.D.C.C. § 14–09–06.2(1) and, therefore, abused its discretion in denying his Rule 59(j) motion; and (2) the trial court's findings of fact do not support that an award of equal primary residential responsibility is in the children's best interest.

II

[¶ 8] A trial court must award primary residential responsibility according to the best interests and welfare of the children. Doll v. Doll, 2011 ND 24, ¶ 7, 794 N.W.2d 425. In deciding the children's best interests, the trial court must consider all relevant factors specified in N.D.C.C. § 14–09–06.2(1). Id. Furthermore, the trial court should consider the best interest factors, under N.D.C.C. § 14–09–06.2, in effect when the divorce and custody action commences. Sorenson v. Slater, 2010 ND 146, ¶ 11, 786 N.W.2d 739;Freed v. Freed, 454 N.W.2d 516, 518 n. 1 (N.D.1990). At the time this divorce action commenced, N.D.C.C. § 14–09–06.2(1) provided:

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 records 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.

A

[¶ 9] Richie Fonder argues the trial court erred by applying the post-amendment version of N.D.C.C. § 14–09–06.2² to this case, which commenced before the enactment of the 2009 amendments and, therefore, abused its discretion by denying his Rule 59(j) motion. We disagree.

[¶ 10] Rule 59(j), N.D.R.Civ.P., allows a party to move to alter or amend a judgment. Hanson v. Hanson, 2003 ND 20, ¶ 5, 656 N.W.2d 656. A Rule 59(j) motion should not be used as a means for the trial court to reconsider evidence already presented, but rather as a means to correct errors of law. Id. Furthermore, we will not reverse a trial court's decision on a Rule 59(j) motion absent an abuse of discretion. Id. “A trial court abuses its discretion when it acts arbitrarily, capriciously, unreasonably, or when it misinterprets or misapplies the law.” Id.

[¶ 11] A trial court has broad discretion in awarding primary residential responsibility. Peek v. Berning, 2001 ND 34, ¶ 6, 622 N.W.2d 186; Wolt v. Wolt, 2010 ND 26, ¶ 9, 778 N.W.2d 786;Doll, 2011 ND 24, ¶ 8, 794 N.W.2d 425. Although the trial court must consider each best interest factor under N.D.C.C. § 14–09–06.2, “a separate finding is not required for each factor.” Peek, at ¶ 6. The trial court need only consider all of the best interest factors and make findings with sufficient specificity to enable our Court to understand the basis for its decisions. Id.

[¶ 12] Richie Fonder commenced this divorce in August 2008. He correctly argues the pre-amended version of N.D.C.C. § 14–09–06.2 applies to this case. See Sorenson, 2010 ND 146, ¶ 11, 786 N.W.2d 739 (holding the best interest factors in effect when the divorce and custody action commences are dispositive); Freed, 454 N.W.2d at 518 n. 1 (holding the same). However, the trial court did not abuse its discretion in denying Richie Fonder's Rule 59(j) motion.

[¶ 13] The 2009 amendments to N.D.C.C. § 14–09–06.2 clarified and restructured the best interest factors. See 2009 N.D. Sess. Laws ch. 149, § 5. The requirements and purpose of the best interest factors remained consistent. See id. The only new factor the trial court had contemplated under its initial decision was factor (e). However, factor (e) now requires the trial court to consider “the willingness and ability of each parent to facilitate and encourage a close and continuing relationship between the other parent and child.” N.D.C.C. § 14–09–06.2 (2009).

[¶ 14] In considering Richie Fonder's Rule 59(j), N.D.R.Civ.P., motion, the trial court acknowledged it should have applied the statutory factors in effect when the action commenced. The trial court noted it had “evaluated and scrutinized those findings as they would relate to the listed statutory factors both before and after the amendments. Having done so, the Court finds that no change is required in the outcome ordered by the Court.” The trial court recognized that, although this language was not included in the pre-amended version of N.D.C.C. § 14–09–06.2, those facts could be considered under factor (m), it is relevant in any primary residential responsibility determination, and especially important when equal primary residential responsibility is awarded.

[¶ 15] Ultimately, the trial court's conclusion that the record continues to support the findings of fact and conclusions of law is not arbitrary, capricious, or unreasonable. The trial court's error in applying the post-amendment version of N.D.C.C. § 14–09–06.2 was cured when it reconsidered its findings under the appropriate version. Therefore, the trial court did not abuse its discretion by denying Richie Fonder's Rule 59(j) motion.

B

[¶ 16] Richie Fonder argues the trial court clearly erred in concluding an award of equal primary residential responsibility is in the children's best interest. A trial court's award of primary residential responsibility is a finding of fact that this Court will not reverse on appeal unless it is clearly erroneous. Doll, 2011 ND 24, ¶ 6, 794 N.W.2d 425. “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...