Hogue v. Hogue

• Decision Date: 12 February 1998
• Docket Number: No. 970131,970131
• Parties: Robert H. HOGUE, Plaintiff and Appellant, v. Kelly M. HOGUE, Defendant and Appellee. Civil
• Court: North Dakota Supreme Court

Page 579

574 N.W.2d 579

1998 ND 26

Robert H. HOGUE, Plaintiff and Appellant, v. Kelly M. HOGUE, Defendant and Appellee.

Civil No. 970131.

Supreme Court of North Dakota.

Feb. 12, 1998.

Robert S. Rau of Bosard, McCutcheon & Rau, Minot, for plaintiff and appellant.

Carol K. Larson of Pringle & Herigstad, Minot, for defendant and appellee.

NEUMANN, Justice.

¶1 Robert Hogue appeals from a divorce judgment challenging the trial court's decision on custody, child support, spousal support, and attorney's fees. We affirm the trial court's custody and attorney fee awards, modify the child support, and reverse and remand the denial of spousal support for further proceedings consistent with this opinion.

¶2 Robert and Kelly Hogue were married in November 1986. Their son, Robbi, was born in December 1990. Kelly was a nurse and an officer in the Air Force throughout most of their marriage. Kelly's career required the Hogues to relocate frequently to accommodate her duty assignments. Robert worked sporadically, sometimes full time, but usually part time, due to the frequent moves, or to attend school. After Robbi's birth, Robert occasionally worked part time, and was a stay-at-home dad. The parties separated in October 1996. Robert filed for divorce, alleging irreconcilable differences.

¶3 The trial court granted the parties a divorce and awarded them joint legal care, custody, and control of Robbi, with Kelly as the primary custodial parent, and Robert receiving liberal and reasonable visitation. ¹ The trial court further ordered (1) Robert to pay $250 monthly child support; (2) both parties be denied spousal support; and, (3) Kelly to pay $800 towards Robert's attorney's fees. Robert appeals.

CUSTODY

¶4 Robert argues the trial court erred in awarding custody of Robbi to Kelly under the best interests of the child factors, partly because he was Robbi's primary caretaker. Robert insinuates he is being discriminated against because of his non-traditional role as a stay-at-home dad. He also argues his relationship with, and his child support obligation ¶5 A trial court's determinations of child custody are findings of fact. Goter v. Goter, 1997 ND 28, p 8, 559 N.W.2d 834. We review child custody matters under the clearly erroneous standard. Id. at 28 p 8; Reimche v. Reimche, 1997 ND 138, pp 11-12, 566 N.W.2d 790. The trial court has substantial discretion in custody matters, and must award custody based on its determination of the best interest and welfare of the child. Id. at 138 p 12. " 'A trial court's findings of fact are presumptively correct.' " Id. at 138 p 12 (quoting Fenske v. Fenske, 542 N.W.2d 98, 102 (N.D.1996)). The trial court is in a better position to evaluate the evidence, and we will view the evidence in the light most favorable to the court's findings. Id. at pp 12-13.

to, a son by a previous marriage have no relevancy in this matter.

¶6 The best interests and welfare of the child is the paramount consideration in child custody determinations. Id. at p 12. Here, the trial court applied the best interests of the child factors under N.D.C.C. § 14-09-06.2 and made specific findings under each factor listed. The trial court found both parties to be fit parents, and viewed them as equal under most factors, or found factors to be inapplicable to these parties, with the exception of factors c and f.

¶7 The trial court found factor c favored Kelly. Section 14-09-06.2(1)(c), N.D.C.C., states: "The disposition of the parents to provide the child with food, clothing, medical care, or other remedial care...." In its findings, the trial court considered Robert's failure to have contact with and pay support for his son by a previous marriage as a negative factor against him. ²

¶8 Applying factor f, the moral fitness of the parties, the trial court found the moral fitness of the parents was "basically equal," with Robert's lack of support and contact with Blake being offset by Kelly's "fraternization" with enlisted personnel and evidence of her alcohol abuse and treatment. ³

¶9 We recognize the trial court has a difficult choice to make in deciding custody between two fit parents. Schmidkunz v. Schmidkunz, 529 N.W.2d 857, 859 (N.D.1995); Weber v. Weber, 512 N.W.2d 723, 727 (N.D.1994); Roen v. Roen, 438 N.W.2d 170, 173 (N.D.1989). We will not retry the case or substitute our judgment for the trial court's, if its determination is supported by evidence in the record. Schmidkunz, 529 N.W.2d at 859.

¶10 Robert argues the trial court erred in considering his lack of contact with Blake and his failure to make child support payments for him. Robert argues his relationship with Blake has no relevancy here, and is not applicable under N.D.C.C. § 14-09-06.2. We disagree.

¶11 Robert's expert witness, Dr. James Brandt, the psychologist who administered several psychological tests on Robert testified on cross-examination regarding Robert's failure to pay child support for Blake. When asked if knowing a person had a child from another relationship and had not fulfilled their responsibility impacts a custody assessment, Brandt responded, "It wouldn't affect the test results. It may be something I would want to know more about. It certainly would affect my judgment as far as the stability of the person." When asked if a person's failure to pay a child support obligation for seven years would cause him concern, Brandt replied, "It would, definitely. Any time anybody doesn't meet their obligations it is a matter of concern." Dr. James Wahlberg, a professor in social work, who prepared an evaluation of Robert's fitness as a parent, also testified it would cause him concern if a parent failed to fulfill child support ¶12 Robert's relationship and child support obligation to Blake is relevant to his disposition to provide for Robbi. Even if it does not fit squarely within subsection c, it certainly is a factor which may be considered by the trial court under subdivision m. Section 14-09-06.2(1)(m), N.D.C.C., states: "Any other factors considered by the court to be relevant to a particular child custody dispute." The trial court's findings are not clearly erroneous, as they are supported by the evidence.

obligations and failed to maintain contact with a non-custodial child.

¶13 Robert argues he should be awarded custody because he has been Robbi's primary caretaker, and he meets the best interests standard to be awarded custody. We disagree.

¶14 Robert concedes N.D.C.C. § 14-09-06.2 provides no reference to a "primary caretaker," and the designation has never gained a presumptive status in this state. Reimche, 1997 ND 138, p 45, 566 N.W.2d 790 (Meschke, J., dissenting). Former Justice Beryl J. Levine often advocated the use of the primary caretaker status to break the tie between two otherwise equally fit parents. Weber, 512 N.W.2d at 729 (Levine, J., concurring in result). Here, the trial court found both parents to be fit, but not equally fit, as evidenced by the trial court's finding Robert's relationship with Blake was a negative factor against him.

¶15 Even if we were to elevate primary caretaking to a presumptive status, Robert has not shown he is entitled to the status. Nowhere in its findings did the trial court refer to Robert as Robbi's "primary caretaker." The trial court recognized Robert performed a significant role in Robbi's care. In its finding, the court stated: "The Court finds each party has been a good parent to their son. The Plaintiff has been primarily a 'stay at home dad' while the Defendant has been employed full-time with the United States Air Force for the majority of the marriage."

¶16 A primary caretaker is identified as: " 'the parent who provides the child with daily nurturance, care and support. For example, the following have been held to be indicia of primary caretaker status: (1) preparing and planning meals; (2) bathing, grooming and dressing; (3) purchasing, cleaning and care of clothing; (4) medical care, including nursing and trips to physicians; (5) arranging for social interaction among peers; (6) arranging alternative care, i.e., babysitting, day-care; (7) putting child to bed at night, waking child in the morning; (8) disciplining child, i.e., teaching general manners and toilet training; (9) educating, i.e., religious, cultural, social, etc.; (10) teaching elementary skills, i.e., reading writing and arithmetic....' " Reimche, 1997 ND 138 at p 46, 566 N.W.2d 790 (quoting Gravning v. Gravning, 389 N.W.2d 621, 624, n. 1 (N.D.1986) (Levine, J., dissenting)). There may not always be a "primary caretaker" in every case. See Marcia O'Kelly, Blessing the Tie That Binds: Preference for the Primary Caretaker as Custodian, 63 N.D. LAW REV., 481, 484 n. 10 (recognizing neither parent is a primary caretaker if there has been substantial co-parenting). In Dalin v. Dalin, 512 N.W.2d 685, 688 (N.D.1994), we affirmed the trial court's finding that neither parent was the primary caretaker when one parent had custody approximately seventy percent of the time. We observed, "deciding which, if either, is primary caretaker may involve more than a mathematical computation of the days spent in each parent's care, custody and control." Id. Likewise, in Bashus v. Bashus, 393 N.W.2d 748, 752 (N.D.1986), we stated, "there is more to being a primary caretaker than the time spent in primary care."

¶17 Here, Robert and Kelly's parental involvement evidences extensive co-parenting, even if Robert spent more time with Robbi. While Kelly worked full time, she often worked twelve hour shifts, giving her several consecutive days off. On her days off, and in the evenings, Kelly cared for Robbi. The record is replete with evidence of both parents' involvement in Robbi's caretaking. For every factor associated with the role of primary caretaker, evidence in the record supports that both parents jointly shared those responsibilities. We do not believe the trial court erred by not designating ¶18 Robert...