Hammeren v. Hammeren

Decision Date23 October 2012
Docket NumberNo. 20110345.,20110345.
Citation2012 ND 225,823 N.W.2d 482
PartiesAllen HAMMEREN, Plaintiff and Appellant v. Kelli HAMMEREN, Defendant and Appellee.
CourtNorth Dakota Supreme Court

OPINION TEXT STARTS HERE

Kevin J. Chapman, Williston, N.D., for plaintiff and appellant.

Jacob D. Marburger, Williston, N.D., for defendant and appellee.

MARING, Justice.

[¶ 1] Allen Hammeren appeals from a divorce judgment awarding primary residential responsibility and child support to Kelli Hammeren and from an order denying his post-judgment motion to reconsider the effective date of his child support obligation. Because we conclude the trial court did not clearly err in awarding primary residential responsibility and did not abuse its discretion when awarding child support commencing October 1, 2010, we affirm.

I

[¶ 2] Allen Hammeren and Kelli Hammeren were married in 2001 and had one child together, born in 2000. Each party also has a child from a prior relationship. The parties separated in July 2010 and have since lived apart.

[¶ 3] In September 2010, Allen Hammeren commenced this divorce action. The parties stipulated to many of the issues involved in their divorce. However, the parties were unable to agree on a parenting plan for their minor child. Allen Hammeren asserted that a shared parenting plan was in their child's best interests, while Kelli Hammeren contended she should be awarded primary residential responsibility for their child. Allen Hammeren's proposed parenting plan provided the parties would equally share residential responsibility and would alternate having the child every seven days with the exchanges to occur on Wednesday evenings. The plan also provided for an alternating schedule for holidays and other special days.

[¶ 4] In May 2011, a trial was held on the remaining issues relating to residential responsibility and the parenting plan. After trial, the court rejected Allen Hammeren's proposed parenting plan, awarding Kelli Hammeren primary residential responsibility and granting parenting time to Allen Hammeren. The court also ordered Allen Hammeren to pay child support to Kelli Hammeren in the amount of $1,014 per month commencing October 1, 2010.

[¶ 5] After judgment was entered, Allen Hammeren moved to alter or amend the judgment or for partial relief from the judgment as to when his child support obligation would commence, requesting that his child support obligation to commence on June 1, 2011, and that he receive credit for his previous support payments. The court allowed him a credit of $4,728, toward his child support obligation of $1,014 per month commencing October 1, 2010, but denied his motion in all other respects.

II

[¶ 6] Allen Hammeren argues the trial court's findings of fact awarding Kelli Hammeren primary residential responsibility and rejecting his proposed parenting plan are clearly erroneous. The trial court must award primary residential responsibility to the parent who will better promote the child's best interests. Seay v. Seay, 2012 ND 179, ¶ 5, 820 N.W.2d 705;Morris v. Moller, 2012 ND 74, ¶ 6, 815 N.W.2d 266;Miller v. Mees, 2011 ND 166, ¶ 11, 802 N.W.2d 153. The court must consider the best interests of the child in awarding primary residential responsibility and all the relevant factors under N.D.C.C. § 14–09–06.2(1). Morris, at ¶ 6;Smith v. Martinez, 2011 ND 132, ¶ 3, 800 N.W.2d 304. The best-interest factors include:

a. The love, affection, and other emotional ties existing between the parents and child and the ability of each parent to provide the child with nurture, love, affection, and guidance.

b. The ability of each parent to assure that the child receives adequate food, clothing, shelter, medical care, and a safe environment.

c. The child's developmental needs and the ability of each parent to meet those needs, both in the present and in the future.

d. The 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.

e. The willingness and ability of each parent to facilitate and encourage a close and continuing relationship between the other parent and the child.

f. The moral fitness of the parents, as that fitness impacts the child.

g. The mental and physical health of the parents, as that health impacts the child.

h. The home, school, and community records of the child and the potential effect of any change.

i. If the court finds by clear and convincing evidence that a child is of sufficient maturity to make a sound judgment, the court may give substantial weight to the preference of the mature child. The court also shall give due consideration to other factors that may have affected the child's preference, including whether the child's preference was based on undesirable or improper influences.

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 parental rights and responsibilities dispute.

N.D.C.C. § 14–09–06.2(1).

[¶ 7] “Although a separate finding is not required for each statutory factor, the court's findings must contain sufficient specificity to show the factual basis for the custody decision.” Wolt v. Wolt, 2010 ND 26, ¶ 9, 778 N.W.2d 786. A court's award of primary residential responsibility is a finding of fact, and this Court will not reverse an award unless it is clearly erroneous. Morris, 2012 ND 74, ¶ 5, 815 N.W.2d 266;Miller, 2011 ND 166, ¶ 12, 802 N.W.2d 153. 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. Morris, at ¶ 5;Doll v. Doll, 2011 ND 24, ¶ 6, 794 N.W.2d 425.

[¶ 8] In applying the clearly erroneous standard, we will not reweigh evidence, reassess witness credibility, retry a custody case, or substitute our judgment for the trial court's decision merely because this Court may have reached a different result. Morris, 2012 ND 74, ¶ 5, 815 N.W.2d 266;Miller, 2011 ND 166, ¶ 12, 802 N.W.2d 153. A choice between two permissible views of the weight of the evidence is not clearly erroneous. Duff v. Kearns–Duff, 2010 ND 247, ¶ 5, 792 N.W.2d 916. [O]ur deferential review is especially applicable for a difficult primary residential responsibility decision involving two fit parents.” Seay, 2012 ND 179, ¶ 6, 820 N.W.2d 705;see also Duff, at ¶ 5.

[¶ 9] In its memorandum opinion, the trial court considered each of the best interest factors under N.D.C.C. § 14–09–06.2(1) and made findings of fact explaining its decision to award primary residential responsibility to Kelli Hammeren. Although the court found there was either “no difference” or “no significant difference” between the parties in applying most of the factors, the court explained this meant there was either no relevant evidence or the evidence presented created no distinction between the parties. The court stated that [w]hile this makes it harder for the Court to choose between competing ideas, it is a wonderful treasure for the child to have two such involved and caring parents.” The trial court explained its reasons for adopting a parenting plan with primary residential responsibility awarded to Kelli Hammeren, noting the parties proposed parenting plans had quite a few identical items, but there were differences that could not be compromised. The court composed a parenting plan, leaving in place parts on which the parties had agreed and deciding the contested matters. The court made additional findings explaining its decision:

As noted in the plan, I used the father's proposal of alternating weeks for a summer schedule, and the mother's approach of two long weekends per month for the school year. I feel that both parties are entitled to a reason for this.

I feel that the father's plan would be too disruptive to the child during the school year. Further, the father has not had his current work schedule for that long, and it is inappropriate to use his new work schedule as a long-term plan.

On the other hand, I have seen few divorces that revealed such an involved set of parents, and the father's plan is surely preferred in the summer as opposed to third parties. I would even go so far as to suggest to the mother that as the child ages and things progress, the mother might keep an open mind as to the 50/50 split. The plan can always be amended by mutual consent of the parties.

[¶ 10] Allen Hammeren argues the trial court erred in its analysis of best interests factors under factors (d), (e), (f), (h), and (i) of N.D.C.C. § 14–09–06.2(1). He also suggests the court was motivated by gender bias in its decision and clearly erred in finding the father's parenting plan was “too disruptive.” Specifically, Allen Hammeren argues the court's findings are sparse and conclusory, not supported by testimony or evidence at trial, and are clearly erroneous. He argues there is no analysis or findings listed under relevant statutory categories, in addition to a lack of findings and conclusions. He contends there is no evidence in the record that his proposed parenting plan would be too disruptive to the child during the school year and asserts he is being held to a higher standard than ...

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  • Edison v. Edison
    • United States
    • United States State Supreme Court of North Dakota
    • August 2, 2023
    ...specific facts in this case differently than the court did, that is not the standard of review. Hammeren v. Hammeren, 2012 ND 225, ¶ 8, 823 N.W.2d 482 ("In applying the erroneous standard, we will not reweigh evidence, reassess witness credibility, retry a custody case, or substitute our ju......
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    • United States State Supreme Court of North Dakota
    • June 19, 2013
    ...case, or substitute our judgment for the trial court's decision merely because this Court may have reached a different result.” Hammeren v. Hammeren, 2012 ND 225, ¶ 8, 823 N.W.2d 482. “A choice between two permissible views of the weight of the evidence is not clearly erroneous.” Id. [¶ 26]......
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    ...witnesses' credibility, reweigh the evidence, and make new findings of fact; however, that is beyond our scope of review. See Hammeren v. Hammeren, 2012 ND 225, ¶ 25, 823 N.W.2d 482. “In applying the clearly erroneous standard, we will not reweigh evidence, reassess witness credibility, ret......
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    • United States State Supreme Court of North Dakota
    • November 30, 2012
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