Heinle v. Heinle

• Citation: 777 N.W.2d 590,2010 ND 5
• Decision Date: 17 February 2010
• Docket Number: No. 20090065.,20090065.
• Parties: Angie HEINLE, Plaintiff and Appellee v. Travis HEINLE, Defendant and Appellant.
• Court: North Dakota Supreme Court

777 N.W.2d 590

2010 ND 5

Angie HEINLE, Plaintiff and Appellee v. Travis HEINLE, Defendant and Appellant.

No. 20090065.

Supreme Court of North Dakota.

January 12, 2010.

Rehearing Denied February 17, 2010.

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Thomas E. Merrick (argued), Jamestown, ND, for plaintiff and appellee.

Anne E. Summers (argued) and Edwin W.F. Dyer III (on brief), Bismarck, ND, for defendant and appellant.

KAPSNER, Justice.

¶ 1 Travis Heinle appeals from an amended divorce judgment awarding primary physical custody of the couple's child, rehabilitative spousal support, and attorney fees to Angie Heinle. Travis Heinle also appeals the district court's calculation of his child support obligation. We affirm the district court's amended judgment awarding primary physical custody and attorney fees to Angie Heinle, but reverse and remand the district court's award of rehabilitative spousal support and its calculation of Travis Heinle's child support obligation for further proceedings consistent with this opinion.

I.

¶ 2 Travis Heinle and Angie Heinle married in 1997 and have one minor child, A.N.H., who was born in 2004. After Angie Heinle filed for divorce in March 2008, the district court entered an interim order establishing a temporary custody arrangement with both parties sharing joint legal and physical custody. Prior to trial, Angie Heinle filed a motion to exclude evidence of settlement negotiations Travis Heinle included in an affidavit. Angie Heinle argued the evidence was inadmissible under N.D.R.Ev. 408. Angie Heinle also moved the district court to sanction Travis Heinle under N.D.R.Civ.P. 11 for submitting the inadmissible evidence. The district court found the affidavit contained inadmissible evidence and granted Angie Heinle's motion.

¶ 3 After a two-day trial, the district court granted the parties' divorce and awarded them joint legal custody of A.N.H., with Angie Heinle receiving primary physical custody. The district court ordered Travis Heinle to pay rehabilitative spousal support in the amount of $400 per month for one year. The district court also ordered Travis Heinle to pay $10,000 of Angie Heinle's attorney fees. In awarding attorney fees, the district court granted Angie Heinle's motion for sanctions under N.D.R.Civ.P. 11, stated Travis Heinle concealed assets from the district court by not disclosing the amount of money he received from his father as compensation for working as a farmhand, and noted Travis Heinle earned more income and had a greater future earning capacity. Lastly, the district court ordered Travis Heinle to pay $604 per month in child support. In determining this amount, the district court adopted Angie Heinle's proposed calculation, which utilized an extrapolated annual income based upon Travis Heinle's earnings from January 1 to October 12, 2008.

II.

¶ 4 Travis Heinle argues the district court was clearly erroneous to award primary physical custody of A.N.H. to Angie Heinle.¹ At trial, each party requested the district court award him or her primary physical custody. The district court found it was in A.N.H.'s best interests for the parties to share joint legal custody and for Angie Heinle to receive primary physical custody. The district court disregarded the recommendation of the custody investigator, who recommended the court award joint physical custody to the parties. Also, the custody investigator recommended, if the district court chose to award legal custody to only one parent, the court award it to Travis Heinle because he "is the parent that puts A.N.H.'s needs first. He is the parent that is most consistent with A.N.H. in giving her structure and routine." As part of its findings of fact, the district court stated: "The custody investigator's report is unsupported by the facts. A custody investigator's report is to be considered by the Court, but the Court is not bound to follow its recommendations." On appeal, Travis argues this Court should reverse the district court's decision and award primary physical custody to him.

¶ 5 A district court shall award custody to the person who will better promote the best interests of the child. Lindberg v. Lindberg, 2009 ND 136, ¶ 5, 770 N.W.2d 252. As part of the best interests analysis, the district court must consider all relevant factors specified in N.D.C.C. § 14-09-06.2(1). Id. Section 14-09-06.2(1), N.D.C.C., identifies the following factors as affecting the best interests of the child:

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.

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. 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.

The Legislature amended N.D.C.C. § 14-09-06.2 effective August 1, 2009. See 2009 N.D. Sess. Laws ch. 149, § 5. However, because the amended statute took effect after the district court made its decision in this matter, we review the district court's application of the best interests of the child factors under the prior version of the statute.

¶ 6 "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)." Lindberg, 2009 ND 136, ¶ 4, 770 N.W.2d 252 (quoting Wessman v. Wessman, 2008 ND 62, ¶ 12, 747 N.W.2d 85). "Under the clearly erroneous standard of review, we do not reweigh the evidence or reassess the credibility of the 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." Lindberg, at ¶ 4 (quoting Jelsing v. Peterson, 2007 ND 41, ¶ 11, 729 N.W.2d 157). This is particularly relevant for custody decisions involving two fit parents. Lindberg, at ¶ 4.

¶ 7 "A district court cannot delegate to an . . . independent investigator its authority to award custody to the parent who will promote the best interests and welfare of the child." L.C.V. v. D.E.G., 2005 ND 180, ¶ 4, 705 N.W.2d 257 (citing Hogan v. Hogan, 2003 ND 105, ¶ 10, 665 N.W.2d 672). The district court has discretion to determine what weight to assign to the custody investigator's conclusions. L.C.V., at ¶ 4. The district court does not have to, nor should it, regard a custody investigator's recommendation as conclusive. See Schneider v. Livingston, 543 N.W.2d 228, 233 (N.D.1996) (involving a guardian ad litem's recommendation) (citing McAdams v. McAdams, 530 N.W.2d 647, 650 (N.D.1995)).

¶ 8 Here, the district court found factors (a), (b), (c), (f), (g), (j), and (m) favored Angie Heinle. The district court found factors (d) and (h) favored neither party, while factors (e), (i), (k), and (l) were irrelevant to this case. The district court did not find any factors favored Travis Heinle.

A.

¶ 9 Travis Heinle argues the district court was clearly erroneous to find factor (a) favored Angie Heinle based upon her role as A.N.H.'s primary caretaker prior to the parties' separation. Factor (a) requires the district court to look at "the love, affection, and other emotional ties existing between the parents and child." N.D.C.C. § 14-09-06.2(1)(a). While this Court has recognized a primary caretaker enjoys no paramount or presumptive status under the best interests of the child factors, we have also stated primary caretakers "deserve recognition" in custody determinations. Heggen v. Heggen, 452 N.W.2d 96, 101 (N.D.1990). The evidence demonstrated Angie Heinle served as A.N.H.'s primary caretaker prior to the parties' separation. As such, the district court was not clearly erroneous to conclude stronger emotional ties existed between Angie Heinle and A.N.H., and factor (a) therefore favored her.

B.

¶ 10 Travis Heinle argues the district court erred in finding factor (b) favored Angie Heinle. Under factor (b), courts must consider "the 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). The district court found both parties had the capacity and disposition to give love and affection to A.N.H. But the district court found factor (b) favored Angie Heinle because she had the better disposition to provide education and guidance to A.N.H. Travis Heinle argues the district court's finding was clearly erroneous because it entirely disregarded the custody investigator's report. The...