Hanisch v. Osvold

• Decision Date: 24 November 2008
• Docket Number: No. 20080012.,20080012.
• Parties: Ryan HANISCH, Plaintiff and Appellant v. Denise OSVOLD, Defendant and Appellee.
• Court: North Dakota Supreme Court

758 N.W.2d 421

2008 ND 214

Ryan HANISCH, Plaintiff and Appellant v. Denise OSVOLD, Defendant and Appellee.

No. 20080012.

Supreme Court of North Dakota.

November 24, 2008.

Kevin J. Chapman (argued), Chapman Law Office, and Valeska A. Hermanson (appeared), McKennett Stenehjem Forsberg & Hermanson, P.C., Williston, ND, for plaintiff and appellant.

Jeff L. Nehring, Nehring Law Office, PLLP, Williston, ND, for defendant and appellee.

CROTHERS, Justice.

[¶ 1] Ryan Hanisch appeals from an order granting custody of the parties' minor child to Denise Osvold. We affirm, concluding the district court's custody award to Osvold is not clearly erroneous.

I

[¶ 2] Hanisch and Osvold have a son, born in May 2006, but have never been married to each other. In July 2006, Hanisch moved for a determination of custody. At that time and up until December 2006, the child lived with Osvold with liberal visitation by Hanisch. On December 10, 2006, Osvold attempted suicide and was admitted to a Minot hospital's mental health unit for several days. On December 12, 2006, Hanisch moved for an ex parte interim order requesting the district court award him temporary custody of the child. The court granted Hanisch's motion and awarded Osvold visitation.

[¶ 3] Following a November 2007 custody trial, the court found it was in the best interests of the child to award custody to Osvold and granted Hanisch reasonable visitation. The district court also ordered Hanisch to pay child support.

II

[¶ 4] Hanisch argues the district court erred in awarding custody of the child to Osvold. "A district court's award of custody is treated as a finding of fact and, on appeal, will not be reversed unless it is clearly erroneous under N.D.R.Civ.P. 52(a)." Wessman v. Wessman, 2008 ND 62, ¶ 12, 747 N.W.2d 85. "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." Burns v. Burns, 2007 ND 134, ¶ 9, 737 N.W.2d 243 (quoting Gietzen v. Gabel, 2006 ND 153, ¶ 6, 718 N.W.2d 552). "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." Jelsing v. Peterson, 2007 ND 41, ¶ 11, 729 N.W.2d 157. This is particularly relevant "for a difficult child custody decision involving two fit parents." Id.

[¶ 5] In an initial custody determination, N.D.C.C. § 14-09-06.1 requires that "the trial court [ ] award custody of the child to the person who will better promote the best interests and welfare of the child." Klein v. Larson, 2006 ND 236, ¶ 7, 724 N.W.2d 565. In determining the best interests of the child, the "court must consider all [relevant] factors specified in N.D.C.C. § 14-09-06.2(1)." Schmidt v. Schmidt, 2003 ND 55, ¶ 6, 660 N.W.2d 196.

[¶ 6] Here, the district court considered all of the relevant best interest factors in making its custody determination. The district court found factors (a), (b), (c) and (e) favored Osvold, while factor (g) favored Hanisch. The district court found factor (d) and (k) favored neither party.

A

[¶ 7] Hanisch argues the court erred in finding factor (a) slightly favored Osvold. Under factor (a), the court must look at "[t]he love, affection, and other emotional ties existing between the parents and child." N.D.C.C. § 14-09-06.2(1)(a). Hanisch claims that either factor (a) should have been weighed in his favor or that neither party should have been given an advantage because the record demonstrates he loves the child and has been a good father.

[¶ 8] In determining factor (a) favored Osvold, the court found that Osvold "clearly articulated her love, affection, and emotional ties with the child and the child's apparent reactions to her and the child's sibling who lives with them in the home." The district court went on to state: "Although it is clear that [Hanisch] likewise has great affection and love for the child, it is the Court's opinion that this factor slightly favors [Osvold]."

[¶ 9] After hearing all of the evidence and assessing the credibility of the parties and their witnesses, the court determined factor (a) slightly favored Osvold. This Court has continually stated, on appeal, we will not "reassess the credibility of witnesses." Jelsing, 2007 ND 41, ¶ 11, 729 N.W.2d 157. Rather, "[w]e give great deference to the trial court's opportunity to observe and assess the credibility of the witnesses." Mayo v. Mayo, 2000 ND 204, ¶ 24, 619 N.W.2d 631. The district court's finding factor (a) slightly favored Osvold is not clearly erroneous.

B

[¶ 10] Hanisch argues the court erred in finding factor (b) slightly favored Osvold. When analyzing factor (b), the court must consider "[t]he capacity and disposition of the parents to give the child love, affection, and guidance and to continue the education of the child." N.D.C.C. § 14-09-06.2(1)(b). Hanisch contends factor (b) should have favored him because Osvold has a history of mental instability and because he has proven his ability to provide the child with love and affection by caring for the child for the past eleven months.

[¶ 11] The record reflects at some point in the child's life each parent has been the primary caregiver and has tended to the child's needs accordingly. The record also reflects numerous witnesses testified about each party's ability to provide the child with love and affection. The court's determination factor (b) favored Osvold is based upon the court's observation and assessment of the credibility of the parties and their witnesses, which we give great deference to on appeal. Jelsing, 2007 ND 41, ¶ 11, 729 N.W.2d 157. "[W]e will not substitute our judgment for that of the district court if evidence in the record supports the [court's decision]." Ackerman v. Ackerman, 1999 ND 135, ¶ 11, 596 N.W.2d 332. The court's finding factor (b) slightly favored Osvold is supported by the evidence in the record and is not clearly erroneous.

C

[¶ 12] Hanisch argues the court erred in finding factor (c) favored Osvold. We note the district court does not explicitly state it found factor (c) in Osvold's favor, although it can be inferred from the court's statement that "[s]he seems more inclined to notice the welling-being (sic) of the child." Under factor (c), the court must look at "[t]he disposition of the parents to provide the child with food, clothing, medical care, ... and other material needs." N.D.C.C. § 14-09-06.2(1)(c). Hanisch claims this factor should have been found in his favor because he has cared for the child for the past eleven months, has taken him to the doctor, owns his own home, has a steady job and has provided for all of the child's other needs.

[¶ 13] In analyzing factor (c), the district court found both parents were disposed to feed, clothe and care for the child's medical needs. However, the court determined Osvold found "these activities [to be] her calling rather than an obligation." The record demonstrates Hanisch has provided appropriate care for the child, but the record also reflects Osvold's continued concern for the well-being of the child, even when she did not have custody. The district court's finding factor (c) favored Osvold is not clearly erroneous.

D

[¶ 14] Hanisch argues the court erred in finding factor (d) favored neither party. Hanisch claims this factor should have favored him because keeping the child in the same home would promote stability and because the child has lived with him for most of the child's life. However, we have previously held that in analyzing factor (d), the court must do more than count the number of days the child has lived with each party. Klein, 2006 ND 236, ¶ 13, 724 N.W.2d 565.

[¶ 15] A proper analysis of factor (d) requires 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). In Burns, this Court stated:

"Factor (d) `addresses past stability of environment, including a consideration of place or physical setting, as well as a consideration of the prior family unit and its lifestyle as part of that setting. It also addresses the quality of that past environment, and the desirability of maintaining continuity.'"

2007 ND 134, ¶ 17, 737 N.W.2d 243.

[¶ 16] The district court properly addressed the child's living environment in both Hanisch's and Osvold's homes. The parties have not lived together since the birth of the child; however both have had primary custody of the child. The court found Osvold provided a stable home for the child from the child's birth until December 2006. The court also found Hanisch has provided a stable home since he received temporary custody in December 2006. The record establishes the child has spent considerable time with both parties during the time they had custody and through frequent visitation. Both parties are employed, and both parties own their own home. Both of their families have been and will remain nearby, and the child will continue to attend the same day care. From these facts we conclude the district court did not clearly err in finding factor (d) favored neither party.

E

[¶ 17] Hanisch argues the court erred in finding factor (e) favored Osvold. When analyzing this factor, the court must examine "[t]he permanence, as a family unit, of the existing or proposed custodial home." N.D.C.C. § 14-09-06.2(1)(e). "Although overlap exists between factors (d) and (e), factor (e) uses a forward-looking approach to the stability of the family unit, its interrelations and environment, versus the backward-looking factor (d)." Eifert v. Eifert, 2006 ND 240, ¶ 11, 724 N.W.2d 109. "Interaction and interrelationships with ...