Sorenson v. Slater

• Decision Date: 17 August 2010
• Docket Number: No. 20090358.,20090358.
• Parties: Tim SORENSON, Petitioner and Appelleev.Jana SLATER, Respondent and Appellant.
• Court: North Dakota Supreme Court

786 N.W.2d 739

2010 ND 146

Tim SORENSON, Petitioner and Appelleev.Jana SLATER, Respondent and Appellant.

No. 20090358.

Supreme Court of North Dakota.

Aug. 17, 2010.

Kevin J. Chapman, Williston, ND, for petitioner and appellee.

Brenda A. Neubauer, Bismarck, ND, for respondent and appellant.

VANDE WALLE, Chief Justice.

[¶ 1] Jana Slater appealed from the district court judgment granting primary custody of her son to Tim Sorenson, the child's father. We reverse and remand for further findings.

I.

[¶ 2] On May 11, 2008, a child was born to Slater and Sorenson. The parents were never married. The child lived with Slater following his birth. On May 20, 2008, Sorenson petitioned to establish paternity, child support and medical support. On August 5, 2008, Sorenson moved for an interim order granting him temporary custody of the child. The district court denied the motion on March 25, 2009.

[¶ 3] In November 2008, Sorenson exercised his weekend parenting time with the child and dropped the child off at daycare on a Monday morning. The next day, the parents and child attended a hearing on Sorenson's motion for an interim order for custody. That evening, Slater observed the child appeared to be in pain and took the child to the emergency room. The doctor who treated the child asserted the child had a broken clavicle. On November 20, 2008, Slater filed an ex parte motion to have Sorenson restricted to supervised visitation. The district court issued a temporary order for supervised visitation the same day. At a hearing the next day, the district court received affidavits and heard testimony from the doctor. The doctor testified Slater made comments at the hospital indicating she believed the child's clavicle was broken during his visitation with Sorenson. The doctor believed this was inconsistent with the nature of the injury, as the swelling over the fracture indicated it was a very recent injury. Because Slater's statement was inconsistent with the injury, the doctor filed a report with social services. After an investigation, social services did not require any services, but recommended the parents attend a parenting class. The district court subsequently vacated its temporary order.

[¶ 4] In March 2009, Sorenson moved for the appointment of a guardian ad litem and/or custody investigator. Slater responded that she did not object to the appointment of a custody investigator, but did object to some factual assertions in Sorenson's motion and affidavit. The notice of motion indicates hearing on the motion would be held at the same time as a previously calendared scheduling conference. The record does not reflect the district court's decision on Sorenson's motion, as it appears the scheduling conference was not conducted on the record.

[¶ 5] The district court held trial on Sorenson's petition on July 27 and 28, 2009. The district court heard testimony from the parents, Sorenson's girlfriend, his brother, his brother's girlfriend, Slater's sisters, and her mother. The district court also took judicial notice of the affidavits and testimony submitted regarding Slater's ex parte motion for supervised visitation. Sorenson submitted a proposed parenting plan, asserting it would be in the child's best interests that he exercise primary residential responsibility, subject to Slater's right to scheduled parenting time. Sorenson's proposed parenting plan also explained how the parents would exercise their rights and responsibilities and their decisionmaking responsibility. On September 21, 2009, the district court issued its order. The district court made the following findings regarding the best interests factors:

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

Evidence from each parent and other family members indicate both have the appropriate ties and capabilities. This factor favors neither parent b. Parent ability to assure that the child receives adequate food, clothing, shelter, medical care, and a safe environment.

Both have the ability to assure the child's necessities. The father's home is shown to be a safe environment. No evidence was presented regarding the mother's home. This factor slightly favors the father.

c. Developmental needs of child and the ability of each parent to meet those needs, both in the present and in the future.

No evidence was presented specifically on this subject. Father's personal situation and home is more organized which implies better ability to address this section.

d. 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.

The child has primarily lived with the mother. However, the home environment of the father appears more stable. Each parent (and presumably the child if they have custody) lives with their own parents and siblings. Thus, the extended family of each is a significant factor in this case. The extended family of the father exhibits more stability as does the father as compared to the mother. This factor favors the father.

The child is young enough that a change of primary caretaker at this point should not be an issue.

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

The mother's position is that she is the mother and thus entitled to call all the shots. The incident relating to attempting to restrict visitation based upon sketchy information emphasizes that point.

On the other hand, the father is more rigid and would want to set all the guidelines for the child even when not in his custody.

It appears that this situation by both parties will continue.

Neither party is favored.

f. The moral fitness of the parents.

Neither party is perfect but neither is unfit. This is not a deciding factor.

g. The mental and physical health of the parents.

This is not an issue.

h. The home, school, and community record of the child.

The child is too young to have developed an independent record.

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.

The child is too young to express.

j. The evidence of domestic violence.

This is not an issue.

k. The interaction and interrelationship or the potential for interaction and interrelationship of the children with any person who resides in, is present, or frequents the household of a parent and who may significantly affect the child's best interest (and that person's history of abuse, etc.).

Each parent lives in a home with their parents, siblings, and others. No evidence of adverse consequences nor dangerous persons in their respective homes was shown.

l. The making of false allegations not in good faith by one parent against the other of harm to the child as defined in Section 50-25.1-02.

The mother made such a claim which was subject to an interim hearing and proven unsupported.

The Court is suspicious of facts and motives by the mother but cannot make a finding that this factor is relevant.

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

None.

The totality of the factors favor custody with the father.

[¶ 6] The district court issued its judgment, awarding “primary custody” of the child to Sorenson, subject to Slater's right to “reasonable visitation.” The district court did not address Slater's parental rights and responsibilities in the judgment.

II.

[¶ 7] This Court's standard of review of a custody determination is well-established:

We exercise a limited review of child custody awards. A district court's decisions on child custody, including an initial award of custody, are treated as findings of fact and will not be set aside on appeal unless clearly erroneous. 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 the reviewing court, on the entire evidence, is left with a definite and firm conviction a mistake has been made. Under the clearly erroneous standard of review, we do not reweigh the evidence or reassess the credibility of witnesses, and we will not retry a custody case or substitute our judgment for a district court's initial custody decision merely because we might have reached a different result. 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 child custody decision involving two fit parents.

Hartleib v. Simes, 2009 ND 205, ¶ 24, 776 N.W.2d 217 (quoting Koble v. Koble, 2008 ND 11, ¶ 6, 743 N.W.2d 797). “On appeal, the complaining party bears the burden of proving a finding of fact is clearly erroneous.” Id. (citing Frueh v. Frueh, 2009 ND 155, ¶ 16, 771 N.W.2d 593; Koble, at ¶ 6).

[¶ 8] Some of the district court's findings are not in accord with the record. With regard to factor b, the district court found, “Both have the ability to assure the child's necessities. The father's home is shown to be a safe environment. No evidence was presented regarding the mother's home. This factor slightly favors the father.” This finding is clearly erroneous, as Slater, her mother, and her sisters testified regarding the condition and safety features of Slater's home. Similarly, on factor c, the district court found “[n]o evidence was presented” regarding the child's development. This finding is clearly erroneous, as Slater testified about the child's development with regard to talking, numbers and colors.

[¶ 9] The district court found, “Father's personal situation and home is more organized which implies better ability to address” the child's development. The district court also found, “[T]he home...