Rustad v. Rustad

• Decision Date: 17 July 2014
• Docket Number: No. 20140014.,20140014.
• Citation: 2014 ND 148,849 N.W.2d 607
• Court: North Dakota Supreme Court
• Parties: Rick R. RUSTAD, Plaintiff, Appellant, and Cross–Appellee v. Svetlana RUSTAD, Defendant, Appellee, and Cross–Appellant.

849 N.W.2d 607

2014 ND 148

Rick R. RUSTAD, Plaintiff, Appellant, and Cross–Appellee

v.Svetlana RUSTAD, Defendant, Appellee, and Cross–Appellant.

No. 20140014.

Supreme Court of North Dakota.

July 17, 2014.

Leslie J. Aldrich and Joshua Nyberg, Fargo, N.D., for plaintiff, appellant, and cross-appellee.

Svetlana Rustad, Fargo, N.D., defendant, appellee, and cross-appellant; self-represented.

McEVERS, Justice.

[¶ 1] Rick Rustad appeals and Svetlana Rustad cross-appeals from an amended judgment awarding her primary residential responsibility for the parties' minor child. We affirm, concluding the district court's decision to award Svetlana Rustad primary residential responsibility is not clearly erroneous.

I

[¶ 2] Rick and Svetlana Rustad were married in February 2008 and have one minor child together, who was born in 2011. Svetlana Rustad is a permanent resident of the United States and a Russian citizen. The parties lived in Kindred during the marriage. Rick Rustad is self-employed and works as a software consultant. Svetlana Rustad has degrees in economics and law, which she obtained in Russia, and she was employed throughout the marriage until October 2012.

[¶ 3] In May 2012, Rick Rustad filed for divorce. After a trial, the district court granted the divorce, distributed the marital property, awarded Svetlana Rustad rehabilitative spousal support and primary residential responsibility of the child, and ordered Rick Rustad to pay child support.

[¶ 4] Rick Rustad appealed the judgment, arguing the district court's decision on primary residential responsibility was clearly erroneous, the decision was not supported by the evidence, the court failed to make specific findings about the best interest factors as required by N.D.C.C. § 14–09–06.2, and the court failed to explain its rationale for awarding primary residential responsibility to Svetlana Rustad when its findings were in his favor. Rick Rustad also argued the court's marital property valuation and distribution was clearly erroneous, and the court's decision to award Svetlana Rustad rehabilitative spousal support was clearly erroneous.

[¶ 5] In Rustad v. Rustad, 2013 ND 185, ¶ 1, 838 N.W.2d 421, this Court affirmed the portion of the judgment awarding spousal support and distributing marital property, but reversed and remanded the court's decision on primary residential responsibility. This Court said the district court's findings on primary residential responsibility were not sufficiently specific and detailed to allow us to understand the basis for the decision, and we remanded for findings on the best interest factors. Id. at ¶ 12.

[¶ 6] On remand, the district court amended its decision and made findings under the best interest factors. The court awarded Svetlana Rustad primary residential responsibility, finding the best interest factors favor Svetlana Rustad and it would be in the child's best interest if she had primary residential responsibility.

II

[¶ 7] Rick Rustad argues the district court erred in awarding Svetlana Rustad primary residential responsibility. He contends the court misapplied the law, ignored relevant facts, considered facts that were not in evidence, and failed to address credible evidence of alienation.

[¶ 8] A court's award of primary residential responsibility is a finding of fact, which will not be reversed on appeal unless it is clearly erroneous. Rustad, 2013 ND 185, ¶ 5, 838 N.W.2d 421. A finding is clearly erroneous if it is induced by an erroneous view of the law, there is no evidence to support it, or we are convinced, based on the entire record, that a mistake has been made. Id. “ ‘Under the clearly erroneous standard of review, we do not reweigh the evidence or reassess the credibility of the witnesses, and we will not retry a [primary residential responsibility] case or substitute our judgment for a district court's initial [primary residential responsibility] decision merely because we might have reached a different result.’ ” Heinle v. Heinle, 2010 ND 5, ¶ 6, 777 N.W.2d 590 (quoting Lindberg v. Lindberg, 2009 ND 136, ¶ 4, 770 N.W.2d 252). We have said this is particularly relevant when primary residential responsibility decisions involve two fit parents. Heinle, at ¶ 6.

[¶ 9] A district court has discretion in deciding primary residential responsibility, but the court must consider all of the relevant best interest factors under N.D.C.C. § 14–09–06.2(1) and determine which party will best promote the child's best interests and welfare. Rustad, 2013 ND 185, ¶ 6, 838 N.W.2d 421. In the prior appeal, this Court said the district court made some findings that were relevant to the best interest factors but most of the findings appeared to be a recitation of evidence presented during the trial, the court did not discuss the best interest factors or make findings specifically about the factors, and the findings related to the factors were either neutral or favored Rick Rustad. Id. at ¶ 8. This Court held “the district court's findings of fact are not sufficiently specific and detailed to allow this Court to understand the basis for its decision. We reverse the judgment awarding Svetlana Rustad primary residential responsibility of the parties' child and remand for findings on the best interest factors as required by law.” Id.

[¶ 10] On remand, the district court made findings about each best interest factor. The court found factor (a), the ability of each parent to provide the child with love and guidance, and factor (m), other relevant factors, favor Svetlana Rustad:

Factor A: It is undisputed that both parents love [the child] very much. Svetlana has been the primary caregiver of [the child] with the aid of her mother. Rick did not want to be involved with [the child]'s day to day care. Rick wanted Svetlana to care for [the child], specifically giving her baths, feeding, and changing her. Prior to the parties [sic] separation, Rick did not change [the child]'s diapers. Svetlana provided [the child] with her daily care needs, and additionally spent time playing with [the child], singing her lullabies, and teaching her. Svetlana is very protective of [the child] and is a loving, caring mother. [The child] loves Svetlana very much; she runs to her mother and hugs and kisses her, and is very happy to be near her. [The child] also loves Rick very much and is happy to spend time with him. Although both parties love [the child] very much, this factor weighs in favor of Svetlana because she was more involved with the care of [the child], and has primarily seen to providing for her needs.

....

Factor M: The parents come from different backgrounds, and cultures. They have had problems communicating with each other, due to language barriers and misunderstandings. The parents believe their way of parenting is the right way, and both parents although different have good parenting common sense skills. Svetlana has been the primary caregiver, along with her mother's assistance. Svetlana is the parent who has bathed, clothed, and fed [the child] on a daily basis. She has scheduled all of [the child]'s necessary doctor appointments for her immunizations and general check-ups. Svetlana is more aware of her daughter's needs, and is in a better position to explain a female's needs. Svetlana articulates well thought plans for [the child]'s future education and exposure to the arts. [The child] is familiar with Rick's home and is very comfortable with the farm animals and his extended family. Rick can work a flexible schedule and when [the child] visits with him they spend all their time together. When [the child] spends time with her mother, if Svetlana is working, [the child] spends that time with her maternal grandmother. On the weekends, Svetlana is able to provide [the child] with full attention. The current schedule that is in place is nearly optimal for [the child] at this point in her life. It would be in [the child]'s best interest to have regular exposure to both of her parents, and both of her parents [sic] diverse cultures. However, someone has to be able to make regular decisions that are in [the child]'s best interest. Svetlana is in a better position to make decisions regarding [the child's] education and extracurricular activities, and also her medical needs. Svetlana is better at providing for [the child's] personal needs. Rick is more frugal when it comes to items for [the child] (i.e. he did not see the need for a changing table), and minimizes some of these needs. Svetlana has provided for most of [the child]'s basic and extra needs since birth. This factor favors Svetlana.

The court found the rest of the factors either did not apply or did not favor either party.

[¶ 11] Rick Rustad contends the district court erred in finding Svetlana Rustad was the child's primary caretaker and improperly presumed she should be awarded primary residential responsibility based on that finding. We have recognized “a primary caretaker enjoys no paramount or presumptive status under the best interests of the child factors, we have also stated primary caretakers ‘deserve recognition’ in custody determinations.” Heinle v. Heinle, 2010 ND 5, ¶ 9, 777 N.W.2d 590. The court did not find there was a presumption Svetlana Rustad should be awarded primary residential responsibility because she was the child's primary caretaker prior to the parties' separation. The court considered all of the best interest factors, including evidence of Svetlana Rustad's role in caring for the child. Rick Rustad also contends there was evidence that he wanted to help care for the child and Svetlana Rustad refused to allow him to help. Evidence in the record supports the court's findings that Rick Rustad did not want to be involved in the child's daily care. We do not reweigh evidence or reassess the witnesses' credibility, and we will not retry a case or substitute our judgment merely because we might have reached a different result. Id. at ¶ 6. The...