Kjelland v. Kjelland

• Decision Date: 25 April 2000
• Docket Number: No. 990292.,990292.
• Parties: Tom KJELLAND, Plaintiff and Appellee, v. Susan KJELLAND, Defendant and Appellant.
• Court: North Dakota Supreme Court

609 N.W.2d 100

2000 ND 86

Tom KJELLAND, Plaintiff and Appellee, v. Susan KJELLAND, Defendant and Appellant.

No. 990292.

Supreme Court of North Dakota.

April 25, 2000.

Wayne T. Anderson, Fargo, ND, for defendant and appellant.

Bonnie J. Askew, Fargo, ND, for plaintiff and appellee.

KAPSNER, Justice.

[¶ 1] Susan Kjelland appealed from a divorce judgment awarding custody of the parties' three children to Tom Kjelland. We hold the trial court did not clearly err in determining the best interests of the children favor awarding custody to Tom. We therefore affirm.

I

[¶ 2] Tom and Susan Kjelland married on September 6, 1980. During the marriage, they had three children: two sons whose dates of birth were June 12, 1985, and August 24, 1988, and a daughter whose birthdate was May 10, 1990.

[¶ 3] In 1981, Tom and Susan bought a convenience store in Valley City, and in 1986, they built a convenience store in Devils Lake. They bought a home near Valley City in 1988. During much of the marriage, Susan managed the Devils Lake store and spent time both in Devils Lake and Valley City, Tom managed the Valley City store, and the children lived at the parties' Valley City home and spent some time in Devils Lake. Tom and Susan both provided care for the children. The parties sold the stores in 1996.

[¶ 4] In 1995, Susan began a mail-order business with a friend in Devils Lake. The business has not been successful and has had little or no revenue since 1997. Susan bought a home in Devils Lake in May 1997.

[¶ 5] Tom and Susan separated in about September 1997, and Tom subsequently sued for a divorce. The trial court granted Tom interim custody of the parties' children and appointed a guardian ad litem to provide a custody evaluation. The guardian ad litem recommended awarding custody to Tom.

[¶ 6] A trial was held in April 1999. The trial court analyzed the best interests of the children under N.D.C.C. § 14-09-06.2 to determine custody. The trial court noted the children indicated they want to live in their Valley City home; Tom expressed his intent and commitment to remain with the children in Valley City; Susan purchased a home in Devils Lake in 1997 and has rented a duplex in Valley City since January 1999 but has rarely spent a weekend in Valley City with the children; and Susan admitted she has limited employment opportunities in Valley City. The trial court also indicated both Tom and Susan are fit and proper parents; the children are doing well in Valley City; Susan has a lower propensity to encourage visitation; and the guardian ad litem recommended Tom be awarded custody. The trial court awarded custody to Tom and granted Susan liberal visitation. Judgment was entered on August 3, 1999. Susan appealed.

II

[¶ 7] Susan contends the trial court erred in awarding custody to Tom. In determining custody, a trial court must consider the 13-factor best interests test set forth in N.D.C.C. § 14-09-06.2(1). Ackerman v. Ackerman, 1999 ND 135, ¶ 8, 596 N.W.2d 332. Section 14-09-06.2(1), N.D.C.C., provides:

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....

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....

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.

[¶ 8] The trial court does not have to make specific findings for each factor but should consider all relevant factors. Ackerman, at ¶ 8. The custody determination is a finding of fact which will not be reversed unless it is clearly erroneous. Nefzger v. Nefzger, 1999 ND 119, ¶ 9, 595 N.W.2d 583. A finding of fact is clearly erroneous only 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. Id. A reviewing court will not retry a custody case or substitute its judgment for that of the trial court, if the trial court's determination is supported by evidence in the record. Ackerman, at ¶ 8.

[¶ 9] Here, the trial court acknowledged N.D.C.C. § 14-09-06.2 governed its decision and determined the best interests of the children required awarding custody to Tom. The trial court indicated factors (d), (e), and (m) favored Tom and factors (a), (b), (c), (f), (g), (j), (k), and (l) did not favor either parent. Under factors (h) and (i), the trial court noted the children were thriving in their home, school, and community environment in Valley City and had a clear preference to remain there.

[¶ 10] Under factors (d) and (e), the trial court acknowledged Tom's greater stability and commitment to parenting. A party's commitment to parenting is a valid factor to consider in determining custody. Wetzel v. Wetzel, 1999 ND 29, ¶ 8, 589 N.W.2d 889 (noting both parents' commitment to the child). Susan alleges the trial court erred in focusing on Tom's post-interim order caretaking. Relying on a parent's serving as primary caretaker pursuant to an interim order might be improper. See O'Kelly, Marcia, Blessing the Tie that Binds: Preference for the Primary Caretaker as Custodian, 63 N.D.L.Rev. 481, 542-44 (1987) (analyzing the "Time Frame for Identification of Primary Caretaker"). However, we need not decide that issue because the trial court did not rely on Tom's serving as the primary caretaker since the interim order. The trial court emphasized Tom's commitment to the children. A party's commitment to the children may be measured by a party's "noncaretaking" conduct which shows devotion to parenting. See Wetzel, at ¶¶ 8-9 (noting each parent was "genuinely devoted" and committed to parenting and had provided daily care and thus rejecting the appellant's contention "the trial court gave inadequate consideration to the fact [the child] ha[d] resided with her since the parties separated"); Landsberger v. Landsberger, 364 N.W.2d 918, 919 (N.D.1985) (noting one parent "began seeking some social life outside of the home in evenings" during the last year of the marriage and the parent who was awarded custody "now focuses more upon the children"). Tom testified he placed the children and their needs ahead of other commitments. The guardian ad litem indicated "Tom clearly understood how important `home' was to the children." The trial court noted "[f]rom the beginning of this proceeding, the children's father has made clear his intention and commitment to remain in Valley City and to live in the family home with the children." Susan decided to purchase a home in Devils Lake shortly before the parties separated and decided to remain employed in Devils Lake after the separation. The trial court noted Susan "claims that she is now willing to live in Valley City" but concedes she has few employment opportunities there. Based on the record, the trial court did not clearly err by indicating Tom has greater stability and commitment to parenting.

[¶ 11] Under factors (h) and (i), the trial court noted the children are doing well in Valley City, are involved in many activities, have excellent school records, and have made clear their preference to remain in Valley City. The children's report cards indicate they have received very good grades, mostly A's and a few B's. The guardian ad litem testified the children are doing well and wish to live in Valley City. The oldest child testified he participated in football, basketball, and golf. Although he did not express a preference as to which parent he wished to live with, he testified he wished to remain in the Valley City home. The middle child testified he participated in soccer and football. He also testified he wished to continue living in the Valley City home. The trial court accordingly did not clearly err in finding the children have done well in Valley City and wish to continue living there. In light of Tom's greater stability and "commitment to remain in Valley City and to live in the family home with the children," the trial court's findings under factors (h) and (i) are consistent with awarding custody to Tom.

[¶ 12] Under factor (m), the trial court indicated Susan would be less likely to promote visitation if she was granted custody. A parent's willingness to foster a relationship with the other parent may be considered in determining the best interests of the children. Gregg v. Gregg, 1998 ND 204, ¶ 12, 586 N.W.2d 312. The trial court noted "[b]ased on her journal entries, Susan Kjelland has exhibited a...