Seay v. Seay

Citation2012 ND 179,820 N.W.2d 705
Decision Date30 August 2012
Docket NumberNo. 20110332.,20110332.
PartiesSvetlana M. SEAY, Plaintiff and Appellee v. Darren John SEAY, Defendant and Appellant.
CourtUnited States State Supreme Court of North Dakota

OPINION TEXT STARTS HERE

Terry W. Elhard, Ashley, N.D., for plaintiff and appellee.

Donavin L. Grenz, Linton, N.D., for defendant and appellant.

MARING, Justice.

[¶ 1] Darren Seay appeals from a district court judgment granting a divorce to Svetlana Seay and awarding her primary residential responsibility of the parties' two minor children, A.M.S. and N.A.S. We affirm in part and reverse in part, concluding: (1) the district court's finding of fact awarding primary residential responsibility of A.M.S. to Svetlana Seay is not clearly erroneous; (2) the district court did not abuse its discretion when it ordered Darren Seay to maintain a life insurance policy on himself as security for his support obligations; and (3) the district court erred in ordering that Svetlana Seay could move out of state with the children without further order of the court or consent of Darren Seay.

I

[¶ 2] Svetlana and Darren Seay met in the Ukraine in 2003. In 2004, Svetlana Seay moved to Wishek, North Dakota with her son from a previous marriage, N.A.S. Svetlana and Darren Seay married in 2004, and their child A.M.S. was born in 2005. Darren adopted N.A.S. in 2006. The family resided in Wishek, where Darren Seay was employed as a pharmacist and Svetlana Seay worked part-time as a hairstylist.

[¶ 3] The parties separated in 2010, and Svetlana Seay sued for divorce. After a trial, the district court ordered that Svetlana Seay have primary residential responsibilityof both minor children, and Darren Seay receive parenting time with A.M.S. The court further ordered that Svetlana Seay had permission to move from North Dakota with the children without further consent of Darren Seay or order of the court. Darren Seay was ordered to pay child support for the children and spousal support to Svetlana Seay, and to purchase and maintain a life insurance policy on himself as security for his future support obligations.

II

[¶ 4] Darren Seay contends the district court erred in awarding primary residential responsibility of A.M.S. to Svetlana Seay.

[¶ 5] The district court must award primary residential responsibility to the parent who will better promote the best interests and welfare of the child. Morris v. Moller, 2012 ND 74, ¶ 6, 815 N.W.2d 266;Miller v. Mees, 2011 ND 166, ¶ 11, 802 N.W.2d 153;Pember v. Shapiro, 2011 ND 31, ¶ 12, 794 N.W.2d 435. In determining the best interests of the child, the court must consider all of the factors enumerated in N.D.C.C. § 14–09–6.2(1). Morris, at ¶ 6;Miller, at ¶ 12;Pember, at ¶ 12. Those factors include:

a. The love, affection, and other emotional ties existing between the parents and child and the ability of each parent to provide the child with nurture, love, affection, and guidance.

b. The ability of each parent to assure that the child receives adequate food, clothing, shelter, medical care, and a safe environment.

c. The child's developmental needs and the ability of each parent to meet those needs, both in the present and in the future.

d. The sufficiency and stability of each parent's home environment, the impact of extended family, the length of time the child has lived in each parent's home, and the desirability of maintaining continuity in the child's home and community.

e. The willingness and ability of each parent to facilitate and encourage a close and continuing relationship between the other parent and the child.

f. The moral fitness of the parents, as that fitness impacts the child.

g. The mental and physical health of the parents, as that health impacts the child.

h. The home, school, and community records of the child and the potential effect of any change.

i. If the court finds by clear and convincing evidence that a child is of sufficient maturity to make a sound judgment, the court may give substantial weight to the preference of the mature child. The court also shall give due consideration to other factors that may have affected the child's preference, including whether the child's preference was based on undesirable or improper influences.

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 parental rights and responsibilities dispute.

N.D.C.C. § 14–09–06.2(1).

[¶ 6] We exercise a limited review of an award of primary residential responsibility. Duff v. Kearns–Duff, 2010 ND 247, ¶ 5, 792 N.W.2d 916;Fleck v. Fleck, 2010 ND 24, ¶ 7, 778 N.W.2d 572. The district court's award of primary residential responsibility is a finding of fact, which will not be reversed on appeal unless it is clearly erroneous. Morris, 2012 ND 74, ¶ 5, 815 N.W.2d 266;Miller, 2011 ND 166, ¶ 12, 802 N.W.2d 153;Pember, 2011 ND 31, ¶ 11, 794 N.W.2d 435. A finding of fact is clearly erroneous if it is induced by an erroneous view of the law, if no evidence exists to support it, or if, although there is some evidence to support it, on the entire record we are left with a definite and firm conviction a mistake has been made. Morris, at ¶ 5;Miller, at ¶ 12. When applying the clearly erroneous standard of review, we do not reweigh the evidence nor reassess the credibility of witnesses, and we will not retry a custody case or substitute our judgment for the district court's initial custody decision merely because we might have reached a different result. Morris, at ¶ 5;Miller, at ¶ 12. A choice between two permissible views of the weight of the evidence is not clearly erroneous, and our deferential review is especially applicable for a difficult primary residential responsibility decision involving two fit parents. Duff, at ¶ 5;Fleck, at ¶ 7.

[¶ 7] The district court expressly considered all of the best interests factors under N.D.C.C. § 14–09–06.2(1) and made detailed findings of fact on each factor. The court found factors (a), (c), and (k) favored Svetlana Seay; factor ( l ) favored Darren Seay; factors (b), (d), (e), (f), and (g) were equal; and factors (h), (i), and (j) were not applicable in this case. Darren Seay has raised only vague and conclusory allegations challenging the district court's findings on several of the best interests factors. Darren Seay is asking this Court to reassess the credibility of witnesses, reweigh the evidence, and make new findings of fact. That is beyond our scope of review of an award of primary residential responsibility. See Morris, 2012 ND 74, ¶ 5, 815 N.W.2d 266;Miller, 2011 ND 166, ¶ 12, 802 N.W.2d 153. We have thoroughly reviewed the district court's findings of fact on the best interests factors and we are not left with a definite and firm conviction a mistake has been made. We therefore conclude the district court's finding of fact awarding primary residential responsibility to Svetlana Seay is not clearly erroneous.

III

[¶ 8] Darren Seay contends the district court erred in compelling him to obtain and maintain a life insurance policy as security for his future support obligations. He argues this provision in the judgment constitutes an improper upward deviation from the amount directed by the child support guidelines:

In this case the trial court did determine the monthly amount of child support which Darren was to pay under the guidelines, but then in addition thereto, proceeded to order him to pay for and maintain a life insurance policy on his life, in an amount no less than his projected future child support and maintenance obligations, naming AMS or an appropriate trust, as the beneficiary.... This order in effect orders and compels Darren to pay more toward the support of his child then [sic] he is required to pay under the Guidelines.... This part of the Judgment entered by the trial court did not make any statement or finding that a preponderance of the evidence had established that such a deviation from the guidelines is in the best interest of AMS.

[¶ 9] Section 14–08.1–03, N.D.C.C., expressly provides that the court may make suitable provision for the future care and support of the child, and may require “reasonable security” for child support payments. This Court has held that the statute authorizes a district court to order a child support obligor to purchase and maintain a life insurance policy as security for court-ordered child support payments in a divorce judgment. Thomas v. Stone, 2006 ND 59, ¶ 8, 711 N.W.2d 199;Peters–Riemers v. Riemers, 2002 ND 72, ¶ 28, 644 N.W.2d 197. Similarly, N.D.C.C. § 14–05–25 authorizes the district court to require “reasonable security” for spousal support payments ordered in a divorce judgment. Under N.D.C.C. § 14–05–25, the district court may order a spousal support obligor to maintain an insurance policy as security for future support payments in a divorce judgment. See Snyder v. Snyder, 2010 ND 161, ¶ 13, 787 N.W.2d 727;Wold v. Wold, 2008 ND 14, ¶ 19, 744 N.W.2d 541. The determination whether to order security for a support obligation lies within the sound discretion of the district court, and its decision will be reversed only for an abuse of discretion. See Snyder, at ¶ 13;Wold, at ¶ 19.

[¶ 10] Darren Seay argues that requiring him to purchase and maintain a life insurance policy as security for his support obligations constitutes an upward deviation from the child support guidelines, and that the district...

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8 cases
  • Hammeren v. Hammeren, 20110345.
    • United States
    • United States State Supreme Court of North Dakota
    • October 23, 2012
    ...The trial court must award primary residential responsibility to the parent who will better promote the child's best interests. Seay v. Seay, 2012 ND 179, ¶ 5, 820 N.W.2d 705;Morris v. Moller, 2012 ND 74, ¶ 6, 815 N.W.2d 266;Miller v. Mees, 2011 ND 166, ¶ 11, 802 N.W.2d 153. The court must ......
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    • United States State Supreme Court of North Dakota
    • June 19, 2013
    ...there is some evidence to support it, on the entire record we are left with a definite and firm conviction a mistake has been made. Seay v. Seay, 2012 ND 179, ¶ 6, 820 N.W.2d 705;Miller v. Mees, 2011 ND 166, ¶ 12, 802 N.W.2d 153. Furthermore, under the clearly erroneous standard, we do not ......
  • N.C.M. v. Morrissey, 20120266.
    • United States
    • United States State Supreme Court of North Dakota
    • July 18, 2013
    ...to the parent who will better promote the child's best interests.” Hammeren v. Hammeren, 2012 ND 225, ¶ 6, 823 N.W.2d 482;see also Seay v. Seay, 2012 ND 179, ¶ 5, 820 N.W.2d 705. In considering the child's best interests, the court must consider all the relevant factors under N.D.C.C. § 14–......
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    • United States
    • United States State Supreme Court of North Dakota
    • February 26, 2013
    ...N.D.C.C. § 14–09–06.2(1), whether the primary residential responsibility award best serves the child's welfare and best interests. Seay v. Seay, 2012 ND 179, ¶ 5, 820 N.W.2d 705. In this case, the trial court erroneously applied the law by abandoning its judicial function.III [¶ 51] The par......
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