Molitor v. Molitor, 20040041.

Citation718 N.W.2d 13,2006 ND 163
Decision Date18 July 2006
Docket NumberNo. 20040041.,20040041.
PartiesLynette D. MOLITOR, Plaintiff and Appellee v. Kenneth M. MOLITOR, Defendant and Appellant.
CourtNorth Dakota Supreme Court

Theresa L. Cole of American Legal Services, Bismarck, N.D., for defendant and appellant.

Gary D. Ramsey of Greenwood & Ramsey, P.L.L.P., Dickinson, N.D., for plaintiff and appellee.

MARING, Justice.

[¶ 1] Kenneth M. Molitor appeals from an amended judgment, establishing custody of the parties' two children and an order denying his motion for a change of custody. We affirm.


[¶ 2] Kenneth Molitor and Lynette Molitor, now known as Lynette Hewson, were divorced on September 29, 2002, following entry of a partial judgment on the issue of divorce only. Sole custody of the parties' two minor children was awarded to Hewson by judgment on October 20, 2003. An amended judgment was entered the next day and a second amended judgment was entered on December 10, 2003. Custody of the two children was not altered in either of the amended judgments. On January 30, 2004, Molitor filed a notice of appeal with this Court.

[¶ 3] On April 20, 2004, while Molitor's appeal was pending, social services removed the parties' two children, along with the two children of Hewson's new husband, from her and her husband's home. The removal of the children followed an incident in which Hewson had discovered her oldest child and her new husband's two children "huffing" gasoline in the basement of her house. An argument ensued between Hewson and the three children, during which time the mother of Hewson's husband's children called, overheard the argument, and called law enforcement. After investigation by social services, the parties' youngest child was returned to Hewson's custody.

[¶ 4] On April 23, 2004, as a result of the removal of the children from Hewson's home, Molitor moved for an ex parte order stating he believed it was necessary to protect the children from a threat of imminent danger. The trial court noted that it did not believe it had jurisdiction over the matter because of the pending appeal. On July 23, 2004, Molitor moved to amend the judgment to change custody. On October 7, 2004, Molitor moved this Court to remand for the limited purpose of permitting the trial court to consider his motion for change of custody. This Court granted the motion on October 21, 2004, and a hearing was held before the trial court on July 20, 21, and 28, 2005. Following the hearing, the trial court denied Molitor's motion. Molitor appealed the order. Since this case began, one of the two children at issue has reached the age of majority.


[¶ 5] On appeal, Molitor argues the trial court's award of custody to Hewson was clearly erroneous. He also argues the trial court's failure to change custody was clearly erroneous.


[¶ 6] In making an initial custody determination, a trial court must decide which custody arrangement would be in the best interest of the child by applying the factors listed at N.D.C.C. § 14-09-06.2(1). Shaw v. Shaw, 2002 ND 114, ¶ 5, 646 N.W.2d 693. In our review of a trial court's application of the best interest factors, we do not require a separate finding for each factor. Id. However, the trial court's findings of fact should be stated with sufficient specificity to enable us to understand the factual basis for the court's decision. Id. On review, a trial court's opportunity to observe the witnesses and determine credibility should be given great deference. Hanson v. Hanson, 2003 ND 20, ¶ 11, 656 N.W.2d 656. A trial court's custody determination is a finding of fact that will not be set aside on appeal unless it is clearly erroneous. Shaw, 2002 ND 114, ¶ 5, 646 N.W.2d 693. The complaining party bears the burden of showing that a trial court's custody determination was clearly erroneous. L.C.V. v. D.E.G., 2005 ND 180, ¶ 3, 705 N.W.2d 257. "A finding of fact is clearly erroneous under N.D.R.Civ.P. 52(a) only if it is induced by an erroneous view of the law, there is no evidence to support it, or, though some evidence supports it, on the entire record we are left with a definite and firm conviction a mistake has been made." Shaw, at ¶ 5.

[¶ 7] Under N.D.C.C. § 14-09-06.2, the best interest factors to be applied in child custody determination cases are:

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. The court shall consider that person's history of inflicting, or tendency to inflict, physical harm, bodily injury, assault, or the fear of physical harm, bodily injury, or assault, on other persons.

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] In making its findings of fact for the initial custody determination, the trial court did not make a separate finding on each individual factor. Nevertheless, the factual basis for the trial court's decision is quite clear. The trial court found that Molitor's mistreatment of his sheep is indicative of his avoidance of any kind of gainful employment adequate to support his family's needs. The trial court found Hewson was the primary provider for the family while the parties were married. The trial court discussed evidence presented at trial regarding Molitor's lack of insight into the role of a parent and instances when Molitor spoke negatively about Hewson in front of the children. The trial court found Molitor's disciplinary practices with the children foster disrespect for the law and authority. The trial court found Molitor lacks maturity and interacts with his children as a "pal" rather than providing an adult role model. The trial court found Molitor has anger control issues and is self-centered. We can infer from these findings that the trial court concluded Molitor does not have the capacity to give the children the parental guidance needed. These findings indicate the application of, at a minimum, factors (b), (c), (f), and (g) by the trial court against awarding custody to Molitor. We believe these findings are sufficient to provide us with an understanding of the trial court's decision on custody.

[¶ 9] In his brief on appeal from the initial custody determination, Molitor invites us to reexamine the record in bits and pieces favorable to his case. Under our standard of review, however, we look to whether there is evidence to support the trial court's decision. There is clearly evidence on the record which supports this decision.

[¶ 10] Our standard of review also allows us to reverse if our review of the entire record leaves us with a definite and firm conviction a mistake has been made. Our standard of review does not allow us to reverse the trial court merely because of the possibility we may have decided a case differently. As we have said, when dealing with findings of fact:

"[R]eading a cold transcript is no substitute for hearing and observing witnesses as they testify. Tones of voice, hesitations, confusion, surprise, and other telltale indications of mental state convey to trial judges and jurors much that is lost to appellate judges. If we were to judge from the cold print, we might decide many cases differently than trial judges do, and this case might be one of them. But, if we decided differently, we would have no assurance that ours was the better decision."

City of Jamestown v. Neumiller, 2000 ND 11, ¶ 12, 604 N.W.2d 441 (quoting State v. Tininenko, 371 N.W.2d 762, 764-65 (N.D. 1985)). Our standard requires a definite and firm conviction a mistake has been made. We have no such conviction in this case.

[¶ 11] At oral argument, Molitor argued the trial court's decision in making its initial custody determination revealed bias against him, and that we should reverse as a result. However, in Molitor's brief appealing the initial custody determination, he states only: "Rather than engaging in the required analysis as mandated by N.D.C.C. 14-09-06.2, the District Court took the opportunity to display its personal anger towards [Molitor] and as a result disparage [Molitor] in every personal manner feasible." Never does Molitor argue the trial court was biased towards him such that it affected the outcome of the custody determination. This Court is not in the business of divining what a party meant to argue in its brief. Nor do we raise and address issues not adequately briefed. Issues on appeal should be fully briefed with appropriate supporting citations and with fair and adequate opportunity for a response from the opposing party. Roise v. Kurtz, 1998 ND 228, ¶ 10, 587 N.W.2d 573. The issue raised in Molitor's brief was whether the trial court...

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