Klein v. Larson

Decision Date28 November 2006
Docket NumberNo. 20060062.,20060062.
PartiesKyleigh KLEIN, Plaintiff and Appellee, v. Dustin LARSON, Defendant and Appellant.
CourtNorth Dakota Supreme Court

Maury C. Thompson, Bismarck, N.D., for plaintiff and appellee; submitted on brief.

Richard B. Baer, P.C., Bismarck, N.D., for defendant and appellant; submitted on brief.


[¶ 1] Dustin Larson appeals from a district court judgment awarding custody of the parties' minor child, C.K., to Kyleigh Klein and ordering Larson to pay child support. We reverse and remand, concluding the district court's finding that it was in the child's best interests to award custody to Klein is clearly erroneous.


[¶ 2] In April 2002, Larson and Klein engaged in a one-time sexual encounter. At the time, Larson was 20 years old and Klein was 16 years old. Klein became pregnant, and C.K. was born in December 2002. Klein did not contact Larson to advise him of her pregnancy or C.K.'s birth. Larson first learned of the child and that he might be the father when Klein's sister called him in the spring of 2003 and told him C.K. was in the hospital.

[¶ 3] In September 2004, the Morton County Social Service Board brought this action against Larson to recover payments that had been made on behalf of C.K. Genetic testing established that Larson was C.K.'s biological father, and judgment was entered ordering Larson to pay child support. In January 2005, following the determination of paternity, Larson began having custody of C.K. for extended periods of time. Larson and Klein essentially shared custody, with Larson having C.K. a majority of the time over the ensuing months.

[¶ 4] In June 2005, Larson brought a motion for custody and an application for an interim order granting him temporary custody during the pendency of the action. The district court entered an interim order awarding Larson temporary custody of C.K. Following an evidentiary hearing, the district court found it was in the best interests of the child to award custody to Klein, with ample visitation to Larson. Larson was also ordered to pay child support. Larson appealed, alleging the district court erred in awarding custody of C.K. to Klein.

[¶ 5] The district court had jurisdiction under N.D. Const. art. VI, § 8, and N.D.C.C. § 27-05-06. The appeal was timely under N.D.R.App.P. 4(a). This Court has jurisdiction under N.D. Const. art. VI, § 6, and N.D.C.C. § 28-27-01.


[¶ 6] A trial court's decisions on child custody, including the ultimate award of custody, are treated as findings of fact and will not be set aside on appeal unless they are clearly erroneous. Gietzen v. Gabel, 2006 ND 153, ¶ 6, 718 N.W.2d 552; L.C.V. v. D.E.G., 2005 ND 180, ¶ 3, 705 N.W.2d 257; In re Griffey, 2002 ND 160, ¶ 5, 652 N.W.2d 351. A finding of fact is clearly erroneous 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. Gietzen, at ¶ 6; Griffey, at ¶ 5; Peek v. Berning, 2001 ND 34, ¶ 4, 622 N.W.2d 186.

[¶ 7] In an initial custody decision, the trial court must award custody of the child to the person who will better promote the best interests and welfare of the child. N.D.C.C. § 14-09-06.1; Gietzen, 2006 ND 153, ¶ 7, 718 N.W.2d 552; L.C.V., 2005 ND 180, ¶ 3, 705 N.W.2d 257. Neither the fitness of the parents nor fairness to the parents is the appropriate test for determining custody, but rather the predominant consideration is the best interests of the child. Guskjolen v. Guskjolen, 391 N.W.2d 639, 643 (N.D.1986); Ebertz v. Ebertz, 338 N.W.2d 651, 655 (N.D.1983). In determining the best interests and welfare of the child, the court is required to apply the factors set out in N.D.C.C. § 14-09-06.2(1). L.C.V, at ¶ 3; Griffey, 2002 ND 160, ¶ 5, 652 N.W.2d 351. Section 14-09-06.2(1), N.D.C.C., provides in relevant part:

1. 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. . . .

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.

In assessing the relevant factors and determining custody, there is no presumption "[b]etween the mother and father . . . as to who will better promote the best interests and welfare of the child." N.D.C.C. § 14-09-06.1; see also McDowell v. McDowell, 2003 ND 174, ¶ 19, 670 N.W.2d 876 (the "tender-years doctrine" has been repealed and there is to be no gender bias in custody decisions); Kasprowicz v. Kasprowicz, 1998 ND 68, ¶ 14, 575 N.W.2d 921 (same).


[¶ 8] In its Memorandum Opinion, Findings of Fact, Conclusions of Law, and Order for Judgment, the district court considered and addressed each of the factors enumerated in N.D.C.C. § 14-09-06.2(1). The court found factor d (stable environment and continuity), factor f (moral fitness), and factor m (other relevant factors) favored Klein; factor e (permanence of custodial home) favored Larson; and the remaining factors favored neither party. On the basis of this assessment of the relevant factors, the court awarded custody of C.K. to Klein. Larson challenges numerous findings of fact and contends the district court misapplied the law.


[¶ 9] Subsection (1)(d) of N.D.C.C. § 14-09-06.2 requires the court to consider the "length of time the child has lived in a stable satisfactory environment and the desirability of maintaining continuity." The district court found this factor favored Klein, stating:

Until paternity was established somewhat more than two years after [C.K.'s] birth, [C.K.] lived with Klein who was solely responsible for his care. Larson asserts that Klein moved a lot and had different living arrangements, and by implication he claims [C.K.] has lived in a more stable environment with him arguably since January 11, 2005, and clearly since the date of the Ex Parte Interim Order on June 9, 2005. No evidence was presented, however, that [C.K.] has been adversely affected by his living and home arrangements with Klein. In terms of maintaining continuity, based on the length of time calculated by Larson that [C.K.] has lived with one party or the other, as of January 26, 2006, [C.K.] having lived with Klein for 887 days has had more continuity with Klein than he has had with Larson for 245 days. This factor favors Klein.

[¶ 10] Factor (d) requires consideration of the stability and quality of the child's past environment:

Essentially, factor d addresses past stability of environment, including a consideration of place or physical setting, as well as a consideration of the prior family unit and its lifestyle as part of that setting. It also addresses the quality of that past environment, and the desirability of maintaining continuity. Under factor d, prior custody is a factor to be considered when determining the custodial arrangement which is best for the child.

Shaw v. Shaw, 2002 ND 114, ¶ 7, 646 N.W.2d 693 (quoting Stoppler v. Stoppler, 2001 ND 148, ¶ 9, 633 N.W.2d 142); see also Schmidt v. Schmidt, 2003 ND 55, ¶ 12, 660 N.W.2d 196. This Court has noted some of the factors that undermine stability in the home:

The stability of a child's home can be undermined in various ways. This might include frequent moves to unfamiliar settings, a succession of persons residing in the home, live-in romantic companions for the custodial parent, or other potential disruptions.

Stoppler, at ¶ 9 (quoting Ireland v. Smith, 451 Mich. 457, 547 N.W.2d 686, 690 n. 9 (1996)). A parent's frequent moving and inability to maintain steady employment are significant indicators of the parent's inability to provide a stable environment for the child. See Stoppler, at ¶ 9 n. 1; In re D.F.G., 1999 ND 216, ¶ 16, 602 N.W.2d 697; In re L.F., 1998 ND 129, ¶ 14, 580 N.W.2d 573.

[¶ 11] The evidence indicates Klein's living arrangements with C.K. in the past were anything but stable. The record demonstrates Klein moved at least six times, and possibly as many as ten times, between November 2003 and August 2005. She held a variety of jobs with differing work schedules. She and C.K. at various times lived with friends, with a boyfriend, and with a friend's family. At the time of the hearing, Klein lived in a two-bedroom apartment with...

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