Pember v. Shapiro, 20100149.

• Decision Date: 08 February 2011
• Docket Number: No. 20100149.,20100149.
• Parties: Dale E. PEMBER, Plaintiff, Appellant and Cross–Appelleev.Lauren R. SHAPIRO, Defendant, Appellee and Cross–Appellant.
• Court: North Dakota Supreme Court

794 N.W.2d 435

2011 ND 31

Dale E. PEMBER, Plaintiff, Appellant and Cross–Appellee

v.Lauren R. SHAPIRO, Defendant, Appellee and Cross–Appellant.

No. 20100149.

Supreme Court of North Dakota.

Feb. 8, 2011.

Robert J. Schultz, Fargo, N.D., for plaintiff, appellant and cross-appellee.Timothy J. McLarnan, Moorhead, MN, for defendant, appellee and cross-appellant.SANDSTROM, Justice.

[¶ 1] Dale Pember appeals the district court judgment awarding custody of the parties' minor children to Lauren Shapiro and establishing his child support obligation.¹ Shapiro cross-appeals, claiming the district court erred as a matter of law in the division of assets and debts of the parties. We affirm the district court's custody award and order granting Shapiro's relocation request, deny Shapiro's cross-appeal, and reverse and remand to the district court to recalculate Pember's child support obligation.

I

[¶ 2] Pember sued for divorce from Shapiro in September 2008. The parties went before the district court to decide the issues of physical and legal custody of their children, spousal support, child support, and division of assets. Testimony was heard from both parties, as well as other witnesses, and other pieces of evidence were received by the court.

[¶ 3] Pember and Shapiro testified they began dating in 1997 while both were living in Kansas. Shapiro was employed as a college professor, and Pember worked at various computer programming jobs. Approximately one year after they began dating, Shapiro became pregnant and the parties married shortly thereafter.

[¶ 4] Shapiro and Pember met with a lawyer to sign a premarital agreement on the morning of their wedding. According to Shapiro, she sought a lawyer to prepare the agreement at the urging of her mother. Pember testified the execution of the agreement took place entirely at the lawyer's office, and the agreement was not revised or altered in any way. Pember stated he was not familiar with the agreement, but was under the impression that the parties were keeping sole ownership of their premarital possessions. He was not advised to seek independent legal advice and did not do so.

[¶ 5] While they were married, the parties had two more children and moved from Emporia to Topeka, Kansas. In 2007, the parties moved with their three children to Fargo, primarily, according to the testimony of both parties, so Pember could take a job at a local college. Neither party had any previous family connection to Fargo or North Dakota. Pember began work immediately at his new job. Shapiro testified she attempted but was unable to find permanent work within her field, although she did earn a second master's degree during this time.

[¶ 6] The marriage became strained in 2008, and Pember sued for divorce at the end of September. A judicial referee awarded interim joint physical and legal custody of the three children during the pendency of the proceedings.

[¶ 7] Following trial, the district court awarded sole physical custody of the children to Shapiro. Pember retained joint legal custody with Shapiro. He was granted extended visitation as well as monthly visitation, certain holidays, and weekly communication with the children. The court also ordered Pember to pay $2,080 per month in child support. In dividing the parties' assets, the district court refused to enforce the premarital agreement, finding Pember's execution of the document “was not knowing and voluntary.” The court divided the assets and debts of the parties on the basis of the testimony and evidence at trial. Shapiro was awarded 62% of the marital estate and Pember was awarded 38%, which the district court explained was “justified because Lauren brought an increased amount of property into the marriage.” The court amended its judgment in May 2010, eliminating all spousal support and reducing Pember's child support obligation to $1,741. Pember appeals from this amended judgment.

[¶ 8] On appeal, Pember argues the court's award of sole physical custody of the parties' children to Shapiro was clearly erroneous, along with the order allowing Shapiro to relocate with the children. He also contends the court erred in calculating his child support obligation. Shapiro cross-appeals, arguing the premarital agreement should have been enforced. Alternatively, she contends the court erred in its equitable division of the marital estate.

[¶ 9] The district court had jurisdiction under N.D. Const. art. VI, § 8, and N.D.C.C. § 27–05–06. Pember's 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.

II

[¶ 10] Pember argues the district court's decision to award Shapiro sole physical custody of the parties' children was clearly erroneous.

[¶ 11] A district court's custody award is a finding of fact that will not be reversed on appeal unless it is clearly erroneous. Edwards v. Edwards, 2010 ND 2, ¶ 7, 777 N.W.2d 606. A finding of fact is clearly erroneous if it is induced by an erroneous view of the law, if there is no evidence to support it, or if, on the entire evidence, we are left with a definite and firm conviction that a mistake has been made. Id. Questions of law are subject to full review. Slorby v. Slorby, 2009 ND 11, ¶ 4, 760 N.W.2d 89.

[¶ 12] In an initial custody decision, the district court must award custody of the children to the parent who will better promote their best interests and welfare. Marsden v. Koop, 2010 ND 196, ¶ 9, 789 N.W.2d 531. The district court must consider the best interest factors of N.D.C.C. § 14–09–06.2(1) in deciding what is in the best interests of the child. Frueh v. Frueh, 2009 ND 155, ¶ 10, 771 N.W.2d 593. These factors include:

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 records 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.

N.D.C.C. § 14–09–06.2(1).² The district court found factors b, c, and k favored Shapiro, while factors d and e favored Pember. The remaining factors favored neither parent.

A

[¶ 13] Pember argues the district court's findings on factor h are clearly erroneous. Factor h concerns the home, school, and community records of the children. The district court explained, “The boys have exhibited some recent behavioral concerns; however, these appear to be temporary and influenced by the finalization of this divorce. This factor favors neither parent.” Pember contends this finding is clearly erroneous because the children were excelling in the Fargo area. Testimony and other evidence at trial showed they were involved in many activities, were performing well academically, and had developed friendships and ties to the community. In addition, Pember argues Shapiro's plan for relocation should be considered against her because she did not know the specific community and school the children would move to if she relocated with them.

[¶ 14] While there is evidence that reflects the children are doing well in the Fargo area, the record contains other evidence that the children would respond positively to a move with Shapiro. According to Shapiro, she was the one who was generally in charge of establishing routines for the children, researching and enrolling the children in activities, and doing day-to-day tasks such as helping with homework and bringing them to appointments. Pember testified that Shapiro was the one who selected the children's daycare and their doctors and that Shapiro was responsible for raising them in their Jewish faith. Pember further testified that the Longfellow School, in which the boys were excelling academically, was chosen by Shapiro, who “did all the research” prior to the family's move to Fargo.

[¶ 15] Viewed in totality, we cannot say the district court's findings on factor h were clearly erroneous. The district court found the children have already experienced significant relocations in their young lives, within Kansas and from Kansas to North Dakota, and the parties testified the children responded positively after each of these moves. The court also found that Shapiro was responsible for locating and choosing the children's schools and daycare and that she was the children's primary caretaker. These findings were relevant and important considerations in the assessment of this factor.

[¶ 16] We also recognize, however, there is no evidence to suggest that the children would not continue to thrive if they...