Harvey v. Harvey, 20140084.

• Decision Date: 12 November 2014
• Docket Number: No. 20140084.,20140084.
• Parties: Christine Rasmussen HARVEY, Plaintiff and Appellee v. Jerry HARVEY, Defendant and Appellant.
• Court: North Dakota Supreme Court

855 N.W.2d 657

Christine Rasmussen HARVEY, Plaintiff and Appellee

v.Jerry HARVEY, Defendant and Appellant.

No. 20140084.

Supreme Court of North Dakota.

Nov. 12, 2014.

Leah J. duCharme, Fargo, ND, for plaintiff and appellee.

James R. Brothers, Fargo, ND, for defendant and appellant.

Opinion

VANDE WALLE, Chief Justice.

[¶ 1] Jerry Harvey appealed from a district court judgment granting a divorce to Christine Rasmussen Harvey, distributing the parties' marital estate, awarding her primary residential responsibility of the parties' three minor children, and denying him spousal support. We conclude the court's decision to award Christine Rasmussen Harvey primary residential responsibility is not clearly erroneous. We also conclude the court erred by failing to consider reservation of jurisdiction to award spousal support in the future. We affirm in part, reverse in part, and remand for additional findings on the issue of Jerry Harvey's disabled status.

I

[¶ 2] Jerry Harvey and Christine Rasmussen Harvey were married in 2000 and have three minor children. Prior to the marriage, Jerry Harvey had suffered injuries and received a settlement from a work-related accident. The settlement was valued at approximately $1.5 million, and he currently receives Social Security disability payments. Christine Rasmussen Harvey owns and operates an insurance agency.

[¶ 3] Christine Rasmussen Harvey filed for divorce in 2012. She sought primary residential responsibility of their three children, a fair and equitable property division, and child support. Jerry Harvey counter-claimed seeking primary residential responsibility, child support, and permanent spousal support.

[¶ 4] On February 1, 2013, the district court entered a temporary order requiring the parties agree to a shared parenting plan providing equal parenting time and use of the marital residence on a rotating basis. The interim order also required Jerry Harvey to undergo a functional capacity assessment to determine the extent of his physical health and limitations.

[¶ 5] On August 6, 2013, a trial was held in the divorce proceeding. On September 24, 2013, the district court entered a divorce judgment awarding Christine Rasmussen Harvey primary residential responsibility of their children, and did not order any child support or spousal support. The court distributed the marital estate in Jerry Harvey's favor, awarding him $92,146 in assets and $25,618 in debts, and awarding Christine Rasmussen Harvey $58,329 in assets and $25,065 in debts. The order also required the sale of the marital residence, with Jerry Harvey receiving two-thirds of the net proceeds. Further dispute arose regarding the ordered sale of the marital home, and was clarified by the district court. A final order for entry of judgment was subsequently entered on January 9, 2014.

II

[¶ 6] On appeal, Jerry Harvey argues the district court erred in awarding Christine Rasmussen Harvey primary residential responsibility of the parties' children. He contends the district court should be required to determine primary caretaker status in a close decision in addition to balancing the best interest factors. Had this primary caretaker status been determined, he argues, the record would show he was the primary caretaker and should be awarded primary residential responsibility.

[¶ 7] “This Court reviews an award of primary residential responsibility under the clearly erroneous standard of review, which does not allow us to reweigh the evidence, reassess the credibility of witnesses, or substitute our own judgment for a district court's initial decision.” Vandal v. Leno, 2014 ND 45, ¶ 6, 843 N.W.2d 313. “A district court's decision awarding primary residential responsibility is a finding of fact which will not be set aside on appeal unless it is induced by an erroneous view of the law, no evidence exists to support it, or, on the entire record, we are left with a definite and firm conviction a mistake has been made.” Id. at ¶ 6. “A choice between two permissible views of the weight of the evidence is not clearly erroneous, and our deferential review is especially applicable in close cases.” Norberg v. Norberg, 2014 ND 90, ¶ 16, 845 N.W.2d 348.

[¶ 8] “A district court must award primary residential responsibility to the parent who will better promote the child's best interests.” Dieterle v. Dieterle, 2013 ND 71, ¶ 6, 830 N.W.2d 571. “The court has broad discretion in deciding residential responsibility; however, the court must consider the best interest factors under N.D.C.C. § 14–09–06.2(1).”

Norberg, 2014 ND 90, ¶ 10, 845 N.W.2d 348. “The court is not required to make specific findings on each best interest factor, but the court must consider all of the factors and make findings with sufficient specificity to enable our Court to understand the factual basis for its decision.” Id. at ¶ 10.

[¶ 9] A district court is not clearly erroneous in finding neither party is the primary caretaker when evidence in the record demonstrates both parents were involved in the role of primary caretaker based on the factors. Hogue v. Hogue, 1998 ND 26, ¶ 17, 574 N.W.2d 579. In Hogue, we held the failure to determine a primary caretaker was not clearly erroneous because the trial court did not reference or determine a primary caretaker, and the record supported a finding that extensive co-parenting existed for both parties. Id. at ¶¶ 14–17, 20.

[¶ 10] In this case, there is evidence that both parties were jointly involved in parenting roles, with parenting roles changing based on the time of day. Jerry Harvey appeared to act as primary caretaker during the workday, while Christine Rasmussen Harvey assumed this role upon coming home. Jerry Harvey has not demonstrated he is entitled to the status over Christine Rasmussen Harvey, and the court makes a finding that both parents are fit, loving, and devoted parents. The record supports the district court's findings and those findings are not clearly erroneous in failing to find that Jerry Harvey was the primary caretaker.

[¶ 11] Jerry Harvey also argues several of the factors the court found not applicable or favoring Christine Rasmussen Harvey should have favored him, and the district court erred in not considering his status as primary caretaker within those best interest factors. In its findings of fact, conclusions of law, and order for judgment, the court considered each of the best interests of the child factors listed in N.D.C.C. § 14–09–06.2(1). The court found factors (a), (d), (f), (g), (i), (k), (l ), and (m) did not favor either party or were not applicable. The court found factors (b), (c), and (h) favored Christine Rasmussen Harvey as the record demonstrated her more extensive involvement in the children's education and medical care. The court found factor (e) favored Jerry Harvey as Christine Rasmussen Harvey did relatively little to foster or encourage a continuing relationship between the children and Jerry Harvey. The court found factor (j) had evidentiary support but the incidents were the result of situational stress and did not involve physical contact or bodily injury.

[¶ 12] Jerry Harvey contends factor (a), which the court found favored neither party, should have favored him based on his primary caretaker status. Factor (a) provides, “[t]he 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.” N.D.C.C. § 14–09–06.2(1)(a). The court stated, “[c]learly both Chris and Jerry are fit, loving, and devoted parents.” Jerry Harvey argues his status as a stay-at-home father favors awarding factor (a) to him; however, we will not reweigh the evidence or reassess the credibility of witnesses. The district court reviewed substantial evidence and testimony at trial demonstrating both parents' active involvement in the lives of their children. There is evidence in the record to support the court's finding. The finding on this factor is not clearly erroneous.

[¶ 13] Jerry Harvey argues factors (b), (c), and (h) should favor him or otherwise be considered neutral because he conducted most of the cooking, provided the children with shelter, medical care, and a safe environment, and both parents were involved in the children's medical and educational needs. Factor (b) states, “[t]he ability of each parent to assure that the child receives adequate food, clothing, shelter, medical care, and a safe environment.” N.D.C.C. § 14–09–06.2(1)(b). Factor (c) states, “[t]he child's developmental needs and the ability of each parent to meet those needs, both in the present and in the future.” N.D.C.C. § 14–09–06.2(1)(c). Factor (h) states, “[t]he home, school, and community records of the child and the potential effect of any change.” N.D.C.C. § 14–09–06.2(1)(h). The district court found factors (b), (c), and (h) favored Christine Rasmussen Harvey stating, “[t]he documentary record does suggest that Chris has been more involved with the children's education and medical care. In general, her role as a parent has been more balanced, and more focused on the children's developmental needs.” This finding was supported by evidence submitted at trial with the submission of medical appointments, school communications, and homework records. Jerry Harvey is unable to demonstrate the court's findings under factors (b), (c), and (h) were clearly erroneous. There is evidence in the record to support the court's findings.

III

[¶ 14] Jerry Harvey argues the district court's failure to reserve jurisdiction over the issue of spousal support was clearly erroneous. He argues the district court held an erroneous view of the law when it considered spousal support an impossibility, declined retaining jurisdiction over that issue, and considered division of the marital estate the only option to support Jerry Harvey.

[¶ 15] A court may award spousal support under N.D.C.C. § 14–05–24.1. When deciding the issue of...