McDowell v. McDowell
| Decision Date | 13 November 2003 |
| Docket Number | No. 20030079.,20030079. |
| Citation | 670 N.W.2d 876,2003 ND 174 |
| Parties | Sharon A. McDOWELL, n/k/a Sharon A. Martinson, Plaintiff and Appellee, v. Jefferey T. McDOWELL, Defendant and Appellant. |
| Court | North Dakota Supreme Court |
Carol K. Larson, Pringle & Herigstad, P.C., Minot, for plaintiff and appellee.
Robert S. Rau, Bosard, McCutcheon & Rau, Ltd., Minot, for defendant and appellant.
[¶ 1] Jefferey McDowell is appealing a Northwest Judicial District Court judgment granting Sharon McDowell custody of the parties' son and awarding Jefferey McDowell visitation rights and ordering him to pay child support and attorney fees. This appeal followed our remand in McDowell v. McDowell, 2001 ND 176, 635 N.W.2d 139 ("McDowell I"). Jefferey McDowell argues the district court erred in granting custody to Sharon McDowell and in failing to extend his visitation. He argues the court improperly calculated child support and improperly awarded attorney fees to Sharon McDowell. We affirm, concluding the district court's decision was not clearly erroneous and the court did not abuse its discretion.
[¶ 2] The facts underlying this litigation are extensively discussed in McDowell I and will be referred to here only as necessary to understand the issues on appeal.
[¶ 3] In the original judgment, the district court granted the parties a divorce and divided the marital property, awarding Sharon McDowell property with a net value of $34,872 and awarding Jefferey McDowell property with a net value of $28,337. The court denied Jefferey McDowell's request that Sharon McDowell pay him spousal support. The court further awarded Sharon McDowell custody of their son, subject to Jefferey McDowell's right of visitation, and ordered Jefferey McDowell to pay $250 per month in child support, retroactive to July 1, 1999. The court also denied Jefferey McDowell's request for partial attorney fees. We reversed and remanded, stating:
The trial court's analysis of the custody issue is cryptic and confusing, leaving us unable to discern the factual basis for its award of custody to Sharon. We therefore conclude the court erred in failing to explain its grant of custody to Sharon, and we remand for reconsideration and for the preparation of findings that sufficiently explain its custody decision.
McDowell I, 2001 ND 176, ¶ 26, 635 N.W.2d 139.
We conclude the trial court's child support calculation is erroneous as a matter of law, and we reverse the child support award and remand for recomputation in accordance with the child support guidelines, should the court again grant Sharon custody.
[¶ 4] On remand, the district court again awarded custody to Sharon McDowell and granted Jefferey McDowell visitation, ordering him to pay child support beginning July 1, 1999, with increases on January 1, 2000, and January 1, 2001. The trial court awarded Sharon McDowell attorney fees and costs. Jefferey McDowell appealed.
[¶ 5] The trial 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, §§ 2 and 6, and N.D.C.C. §§ 28-27-01 and 28-27-02.
[¶ 6] Jefferey McDowell argues the district court erred in awarding custody of the parties' son to Sharon McDowell.
[¶ 7] Jefferey McDowell argues the findings of fact prepared by Sharon McDowell's attorney were not the findings of the district court.
[¶ 8] "When the court affixes its signature to the findings, even though drafted by counsel, they become the findings of the court, and if they adequately explain the basis of the court's decision," the findings will be upheld. Schmidkunz v. Schmidkunz, 529 N.W.2d 857, 858 (N.D. 1995); Hendrickson v. Hendrickson, 553 N.W.2d 215, 218 (N.D.1996). "When the trial judge affixes his signature to the findings of fact they become the findings of the court." Vetter v. Vetter, 267 N.W.2d 790, 792 (N.D.1978).
[¶ 9] Before signing the findings prepared by Sharon McDowell's attorney, the district court reviewed and revised them. We conclude the findings of fact, having adequately explained the basis for the court's decision, were the findings of the court and were not clearly erroneous.
[¶ 10] Jefferey McDowell argues the district court erred in awarding custody of the parties' son to Sharon McDowell, claiming the court incorrectly found that factors (c), (d), and (m) of N.D.C.C. § 14-09-06.2(1) favored her. In making an initial custody determination, the trial court found that factors (c), (d), (f), and (m) of N.D.C.C. § 14-09-06.2(1) favored Sharon McDowell and that the parties were equal on the remaining factors.
[¶ 11] "`A trial court's custody determination is a finding of fact that will not be set aside on appeal unless it is clearly erroneous.'" Stoppler v. Stoppler, 2001 ND 148, ¶ 7, 633 N.W.2d 142 (quoting Reeves v. Chepulis, 1999 ND 63, ¶ 8, 591 N.W.2d 791). "A finding of fact is clearly erroneous only if it is induced by an erroneous view of the law, if there is no evidence to support it, or if, upon review of the entire evidence, we are left with a definite and firm conviction a mistake has been made." Schmidt v. Schmidt, 2003 ND 55, ¶ 14, 660 N.W.2d 196; see also Shields v. Shields, 2003 ND 16, ¶ 6, 656 N.W.2d 712
.
[¶ 12] Jefferey McDowell argues, the court improperly found he was not supporting his son, because he claims he was not aware of this obligation. The district court found:
C. Disposition of parents to provide child with food, clothing, and the like. This fact favors Sharon. When Jefferey returned from California to North Dakota, Jefferey withdrew over $21,000 from marital assets to support himself. During the interim, Jefferey did not provide financial support for [his son], with the exception of purchasing a few items of personal property for [him], and a limited amount of medical expenses. Jefferey's failure to provide support is certainly noted.
[¶ 13] We are not persuaded by Jefferey McDowell's argument. Parents should not need a court order to know they are obligated to support their children. Section 14-09-08, N.D.C.C., establishes the legal duty of parents to support their children. We conclude his objection is without merit.
[¶ 14] Jefferey McDowell also argues the district court improperly found he intended to remain in California. The district court found:
D. Length of time the child has lived in a satisfactory environment. By Jefferey's consent, [his son] has been living with his mother since May of 1999. Jefferey left Sharon and [his son] and moved to California knowing that Sharon would not be joining him unless the marital problems were resolved.
[¶ 15] Jefferey McDowell claims he had returned to North Dakota upon hearing of the divorce and had a return airline ticket purchased weeks before he went to California. There is evidence to support the trial court's contrary finding. At trial, Sharon McDowell testified that she told Jefferey McDowell it would not work for her to move to California with their marriage in the condition it was in at the time. She testified that she clearly told him she and their son would not be going to California with him. Jefferey McDowell testified that two weeks before he went to California, the couple discussed the possibility that she might not want to move.
[¶ 16] When two parties present conflicting testimony on material issues of fact, we will not redetermine the trial court's findings based upon the testimony. Williston Cooperative Credit Union v. Pesek, 363 N.W.2d 548, 550 (N.D.1985).
Piatz v. Austin Mut. Ins. Co., 2002 ND 115, ¶ 24, 646 N.W.2d 681 (quoting Estate of Howser, 2002 ND 33, ¶ 10, 639 N.W.2d 485 (citations omitted)). We conclude the findings under this factor are supported in the record and are not clearly erroneous.
[¶ 17] Under factor m, "any other factors," the district court found Sharon McDowell was the primary caretaker of the child. See Nefzger v. Nefzger, 1999 ND 119, ¶ 18, 595 N.W.2d 583
.
[¶ 18] Jefferey McDowell argues that the district court's reliance on caregiver status is erroneous in this case because their son is no longer a preschooler but an upper class elementary school student, and further, that he was the one providing the attention and care for the child on a daily basis for all but one month of the three to five years prior to this action.
[¶ 19] Jefferey McDowell seems to be arguing, in part, that the district court misapplied the "tender-years doctrine," a doctrine holding that children "of tender years" generally belong with their mother. The tender-years doctrine has been repealed in North Dakota. See N.D.C.C. § 30-10-06 (repealed 1973); Leppert v. Leppert, 519 N.W.2d 287, 292 (N.D.1994). And the public policy of this state is that there is to be no gender bias in custody decisions regardless of the age of the child. N.D.C.C. § 14-09-06.1 ().
[¶ 20] The district court's decision to award custody to Sharon McDowell was based on many factors, and we are not convinced that its findings of fact are clearly erroneous or that its decision was improper.
[¶ 21] We conclude the district court's awarding of custody to Sharon McDowell was not clearly erroneous.
[¶ 22] Jefferey McDowell argues the district court erred in failing to consider...
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