Hendrickson v. Hendrickson, 950331

Decision Date10 September 1996
Docket NumberNo. 950331,950331
PartiesDiane HENDRICKSON, Plaintiff and Appellee, v. Mark HENDRICKSON, Defendant and Appellant. Civil
CourtNorth Dakota Supreme Court

James A. Reisnour (argued), of Mackenzie & Reisnour, Jamestown, for plaintiff and appellee.

Dwight C.H. Kautzmann (argued), Bismarck, for defendant and appellant.

MESCHKE, Justice.

Mark Hendrickson appealed from a decree entered in the divorce action by Diane Hendrickson. We affirm the decree, but remand for a slight modification and a determination of attorney's fees for Diane.

Mark and Diane married and purchased a home in Jamestown in 1980. They had four children--Carinna, Anthony, Matthew, and Andrew--during the marriage. They also raised Diane's daughter, Carissa Nygard, who was five years old when they married. Throughout their marriage, Diane worked in Jamestown and Mark worked in Dickinson. Throughout the marriage, Diane and the children lived in Jamestown, while Mark lived in Dickinson during the week and spent weekends, holidays, and vacations in Jamestown.

After a trial, the divorce decree granted them a divorce, awarded custody of the children to Diane, ordered Mark to pay child support of $1,029 per month, and distributed the marital property. Mark appealed. 1

1. Child Custody:

Mark contends the trial court abused its discretion in awarding custody of the children to Diane. As Weber v. Weber, 512 N.W.2d 723 (N.D.1994), explained, we treat a trial court's determinations about child custody as findings of fact that we will not disturb unless clearly erroneous.

The best interests and welfare of the child control a child custody decision. NDCC 14-09-06.1; Wolf v. Wolf, 474 N.W.2d 257 (N.D.1991). Section 14-09-06.2(1) of the North Dakota Century Code lists thirteen possible factors on the best interests and welfare of a child for a trial court to consider in deciding custody:

For the purpose of custody, the best interests and welfare of the child is determined by the court's consideration and evaluation of all factors affecting the best interests and welfare of the child. These factors include all of the following when applicable:

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. In awarding custody or granting rights of visitation, the court shall consider evidence of domestic violence. If the court finds credible evidence that domestic violence has occurred, this evidence creates a rebuttable presumption that a parent who has perpetrated domestic violence may not be awarded sole or joint custody of a child....

k. The 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....

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.

Mark contends that, in its memorandum decision, the trial court made no findings under factors a through l, and only two findings under factor m: "First, that the residential arrangements establish custody for Diane and secondly, because Mark seemed unable to develop a happy and healthy relationship with a 20 year old step-daughter that in the court's opinion 'had a contagious effect upon the father and child relationship' with half-brother and half-sister." Mark's summary greatly understates the court's analysis.

In its memorandum decision, the trial court found:

The Court has reviewed the various elements established by our legislature in NDCC 14-09-06.2 regarding custody. Two factors particular to this case are decisive in resolving what custodial arrangement would be in the best interests and welfare of the four children of the parties.

First, Mark and Diane effectively--even if not deliberately or knowingly--jointly decided in advance the issue of custody through the residential arrangements they voluntarily made. That is, by having two separate dwellings with Mark living in the family home in Jamestown only on weekends and holidays, the children became quite naturally attached to the family home in Jamestown. Similarly, the children have quite naturally developed a secure and warm relationship with their mother through the years. Because of the absence of Mark during the weekdays, the children's relationship with their father is somewhat more distant. As a consequence, the children have also established school and community ties in Jamestown and it would not serve any good purpose of the children to disrupt those ties merely because the parents have decided to dissolve their marriage.

Secondly, Mark seemed unable to develop a happy and healthy relationship with his step-daughter Carissa. While the reasons for that failure may be multiple as well as difficult to ascertain, Mark contributed substantially to the near estrangement of his relationship of Carissa through action and conduct that may fairly be described as emotional and physical abuse. Unfortunately, Mark's occasional unkind and inappropriate treatment of Carissa had a contagious effect upon the father and child relationship with his three older biological children. The youngest, Andrew, seems not yet to be infected and, because Carissa is now an adult, Andrew should probably should not suffer any ill effects of Mark's inappropriate parentage of Carissa.

The realistic result is that the children as a family group share a special feeling of security, warmth, fondness, and affection for their mother to a higher degree than that they enjoy with their father. Accordingly, the Court finds as a fact that the best interests and welfare of Carinna, Anthony, Matthew, and Andrew will be served by placing their primary care, custody, and control with Diane.

In addition to factor m, these findings certainly treat factors a, b, d, e, and h of NDCC 14-09-06.2(1). These findings are supported by the evidence.

By living apart from his family, except for weekends and holidays, Mark was unable to develop the kind of relationship with his children that would make placement of custody with him likely. Mark could not reasonably expect the trial court to find that the best interests and welfare of the children would be served by placing custody with him. We conclude that the trial court's child custody award to Diane is not clearly erroneous.

Mark complains that the findings of fact, conclusions of law, and order for judgment were drafted by Diane's attorney. As we explained in Schmidkunz v. Schmidkunz, 529 N.W.2d 857, 859 (N.D.1995): "It is of no import that the initial draft of those findings was presumably prepared by Leslie's counsel. When the court affixed its signature to those findings they became the findings of the court."

Mark complains that the trial court made no finding under NDCC 14-09-06.2(1)(j) on domestic violence, 2 contending "Diane and her relatives on at least one occasion committed domestic violence against Mark." Mark relies on his own testimony:

Q. Did anything unusual happen at that visitation?

* * * * * *

A. When I came driving up, I pulled up to the curb and quite unusual, because Diane was there, of course, Diane's mother was there, Diane's father was there, and Diane's sister was there, Christine. And Diane and her parents were all carrying baseball bats and her sister Christine was running a video camera.

* * * * * *

Q. Did anything happen with the baseball bats?

A. No. I never got out of my car so nothing ever happened, although Diane's mother was over there standing on the lawn swinging that bat she had in her hands asking me if she wanted me to come over and beat on me.

Q. Are you sure you just didn't interrupt a baseball game in progress?

A. No. There was no baseball game going because I had driven by, oh, 15 minutes or so earlier and there was no activity outside the house with baseball games going on or anything like that.

* * * * * *

Q. And did you do anything to try and cause a confrontation at this visitation?

A. Oh, no. I definitely knew better than to ever even think about getting out of my car at that point.

When Diane's sister, Christine, was asked about Mark's testimony, Mark's own attorney objected to describing the conduct as having "threatened him" Q. ... I believe also while in Dickinson Mark had described during the course of the visitation that occurred in September of '94 that you and other family members had threatened him with baseball bats.

MS. NORDSVEN: Your Honor, that mischaracterizes the testimony that was given in Dickinson, and I'm certainly going to object to that.

* * * * * *

MS. NORDSVEN: I specifically object to the language threatened Mark with baseball bats that time. That was not the testimony.

Christine testified: "The kids were playing baseball in the front yard and Diane went to do some stuff so she asked me to run the video camera on the kids and dog."

While more detailed findings on this one...

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