Peek v. Berning, 20000056.

• Decision Date: 15 February 2001
• Docket Number: No. 20000056.,20000056.
• Citation: 622 N.W.2d 186,2001 ND 34
• Parties: Malcolm R. PEEK, Plaintiff and Appellant, v. Kimberly J. BERNING, Defendant and Appellee.
• Court: North Dakota Supreme Court

622 N.W.2d 186

2001 ND 34

Malcolm R. PEEK, Plaintiff and Appellant, v. Kimberly J. BERNING, Defendant and Appellee.

No. 20000056.

Supreme Court of North Dakota.

February 15, 2001.

Brenda A. Neubauer, Neubauer & Oster, Bismarck, ND, for plaintiff and appellant.

Thomas M. Tuntland, Mandan, ND, for defendant and appellee.

KAPSNER, Justice.

[¶ 1] Malcolm R. Peek appeals from the district court's judgment finding the best interests of the child supported an award of joint legal and physical custody with a schedule of rotating physical custody. We reverse and remand for further proceedings in accordance with this opinion.

I

[¶ 2] Malcolm R. Peek and Kimberly J. Berning were never married, but in February 1997 they had one child together. Berning also has two other children who reside with her. When Peek and Berning's child was born, Berning was employed as a registered nurse in North Dakota, and Peek was working on a doctoral degree in Arizona but returned to North Dakota two weeks before the child's birth and stayed for two weeks after her birth. In May 1997, Peek returned from Arizona and lived with Berning until July 1997. From July to September 1997, Peek only lived with Berning on weekends. After Peek took a job at an elementary school in Bismarck and purchased a house in New Salem, Berning took a nursing position in Bismarck and moved in with Peek in November 1997. In September 1998, Berning moved out and took their child with her. Two weeks later, when Berning attended an Alcoholics Anonymous conference out of town, she left their child with Peek. While Berning attended the conference, Peek filed for custody, requesting an ex parte interim order due to an alleged threat of imminent emotional and physical danger to their child. Peek's affidavit testified he was the primary caretaker since their child's birth, and Berning had a history of alcohol and drug abuse, had a violent temper, repeatedly struck her children, and repeatedly spanked their child causing her to cry hysterically. As a result of the interim order, Peek got custody of the child for 14 months until trial. The trial court denied Berning's request to vacate the interim order, reasoning the best interests of the child required continuation of the interim order. The trial court stated, "The child is in a stable and healthy situation now and should not be shuffled back and forth while this matter is pending."

[¶ 3] In December 1999, the trial court concluded the best interests of the child factors favored Peek, but both parties are good parents, and spending as much time as possible with each parent is in the child's best interests. The trial court awarded the parties joint physical and legal custody of their child, giving a 28-day schedule of rotating shared custody before the child starts kindergarten, after which custody alternates on a monthly basis. Peek appeals.

II

[¶ 4] An award of custody is a finding of fact which will not be set aside unless clearly erroneous, that is, if induced by an erroneous view of the law, if no evidence exists to support the finding, or if the reviewing court, on the entire evidence, has a definite and firm conviction the trial court made a mistake. Kjelland v. Kjelland, 2000 ND 86, ¶ 8, 609 N.W.2d 100.

[¶ 5] Custody is awarded to the parent who will, in the opinion of the judge, promote the best interests and welfare of the child. N.D.C.C. § 14-09-06.1. For the purpose of custody, the best interests and welfare of the child are determined by the court's consideration of several factors:

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 chid 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.... If the court finds credible evidence that domestic violence has occurred, and there exists one incident of domestic violence which resulted in serious bodily injury or involved the use of a dangerous weapon or there exists a pattern of domestic violence within a reasonable time proximate to the proceeding, this combination creates a rebuttable presumption that a parent who has perpetrated domestic violence may not be awarded sole or joint custody of a child....

k. The 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....

m. Any other factors considered by the court to be relevant to a particular child custody dispute.

N.D.C.C. § 14-09-06.2.

[¶ 6] The district court has substantial discretion in making custody determinations, but it must consider all the best interests factors. Cox v. Cox, 2000 ND 144, ¶ 10, 613 N.W.2d 516. A separate finding is not required for each factor, but the court's findings should be stated with sufficient specificity to enable a reviewing court to understand the factual basis for the district court's decision. Id. We will not retry a custody case or substitute our judgment for that of the trial court, if the trial court's determination is supported by evidence in the record. Id. at ¶ 9.

III

[¶ 7] Peek argues all the best interests factors should have favored him, so the trial court erred in weighing the best interests factors.

[¶ 8] Under factor (a), Peek claims all his witnesses stated the child is the focus of his household, and no witness gave a similar opinion about Berning, yet the court found this factor favors neither party. However, we note that the trial court indicated both parties love and show affection to the child, and each parent said the other loves the child and is a good parent. Accordingly, the trial court did not clearly err in finding this factor favors neither party.

[¶ 9] Under factor (c), Peek contends he assumed most of the responsibility for the child, but the court found this factor favored neither party. However, the trial court's findings indicate Peek returned to Arizona on March 1, 1997, two weeks after the child's birth, until May 1997. From May to about July 1997, Peek lived with Berning, who was working full-time, and Peek provided much of the child care. From July to September 1997, Peek was only in town on weekends, so Berning provided most of the child care. The court's findings show Peek only lived with the child full-time for three months out of her first nine months. Then both parents worked full-time until March 1998 when Berning began working a 24-hour week so she could spend more time with the child, a schedule which she continued until the parties separated in September 1998. Moreover, we have stated a parent's commitment to a child may be measured by "noncaretaking" conduct showing devotion to parenting. Kjelland, 2000 ND 86, ¶ 10,609 N.W.2d 100. Thus, the trial court's finding on this factor was not clearly erroneous.

[¶ 10] Under factors (d) and (h), Peek asserts the trial court erred in finding these factors favored neither party, when the child lived with Peek in a stable satisfactory environment for 14 months. However, we have stated that relying on a parent's primary caretaking pursuant to an interim order might be improper. See Kjelland, 2000 ND 86, ¶ 10,

609 N.W.2d 100. Furthermore, the trial court expressly found Peek, in his affidavit supporting his request for an interim order, had "exaggerated, and at worst lied, in order to gain the tactical advantage of having custody of [the child] until trial." The court found no evidence Berning was a perpetrator of abuse or had a violent temper, and Peek did not testify to seeing Berning repeatedly strike her older children and only saw her spank their child once on the bottom and a couple of times on the hands, but did not describe hysterical crying. Therefore, the court stated there was "no compelling evidence that maintaining continuity of [the child's] present living arrangement is essential to her best interest."

[¶ 11] Under factor (e), Peek claims he is more settled since Berning has sent job applications to a new town and had only been at her place of employment four months at the time of trial, whereas Peek plans to remain with his current employer. Because the trial court considered both parties lived in several different places and had several different jobs, but now both are purchasing homes, have secure jobs, and are planning on staying in state, we conclude the trial court did not clearly err in finding this factor favors neither party.

[¶ 12] Under factor (g), we reject Peek's argument that this factor should favor him when no evidence showed his social drinking and past drug use affected his parenting ability, but Berning suffered from depression, has a history of substance abuse, and rates sobriety over her children. Juxtaposed to the trial court's findings that Berning has successfully completed alcoholism treatment, maintained sobriety for ten years, and sought help for her depression are the court's findings that Peek drinks every night, recently used marijuana, and consumed alcohol while driving with the children in the car. We...