Stoppler v. Stoppler

• Decision Date: 29 August 2001
• Docket Number: No. 20000330.,20000330.
• Citation: 2001 ND 148,633 N.W.2d 142
• Parties: Bradley John STOPPLER, Plaintiff and Appellee, v. Kyle Kaye STOPPLER, Defendant and Appellant.
• Court: North Dakota Supreme Court

633 N.W.2d 142

2001 ND 148

Bradley John STOPPLER, Plaintiff and Appellee, v. Kyle Kaye STOPPLER, Defendant and Appellant.

No. 20000330.

Supreme Court of North Dakota.

August 29, 2001.

Donavin L. Grenz, Linton, ND, for plaintiff and appellee.

Patricia E. Garrity, Bair, Bair, Garrity & Kelsch, LLP, Mandan, ND, for defendant and appellant.

Anne Elizabeth Summers, Bismarck, ND, Guardian ad Litem, participated under N.D.R.Ct. 8.7(e).

NEUMANN, Justice.

[¶ 1] Kyle Kaye Stoppler has appealed the September 27, 2000, judgment entered in a divorce action filed by Bradley John Stoppler. We reverse in part, affirm in part, and remand for further proceedings. [¶ 2] The parties married in 1992. A daughter, KayLee, was born to the parties in 1993. Kyle's two children from a previous marriage lived with the parties on a farm. Bradley farmed and ranched, and Kyle worked outside the home during most of the marriage. Kyle twice took the children and left Bradley. In 1999 Kyle became romantically involved with Keith Hagen. On September 11, 1999, Kyle told Bradley she wanted a divorce and disclosed her affair with Hagen. Kyle and the children moved out of the marital home on September 19, 1999, to live with Kyle's mother.

[¶ 3] Bradley sued for a divorce on September 23, 1999. After a hearing, the trial court issued an amended interim order granting Bradley temporary custody of KayLee, prohibiting Kyle from permitting "KayLee to associate with or be in the presence of Keith Hagen," and giving Kyle "visitation with KayLee for three days during the week and on alternating weekends." The judgment entered on September 27, 2000, granted Bradley a divorce "on the grounds that [Kyle Stoppler's] adulterous relationship with Keith Hagen has caused irreconcilable differences between them"; awarded Bradley the care, custody, and control of KayLee; granted Kyle reasonable visitation, including alternating weekends and eight weeks of continuous summer visitation; determined Kyle's monthly net income and fixed her child support obligation at $50 per month; distributed the parties' marital property; specified "[n]o spousal support is awarded to Defendant"; directed Bradley to pay the Guardian ad Litem $2,015.48; and directed Bradley to pay $2,500 of Kyle's attorney fees within 60 days.

[¶ 4] Kyle filed a notice of appeal and a motion for a stay of the custody and child support provisions pending the outcome of the appeal. The trial court denied the motion in an order issued January 16, 2001. Kyle contends the trial court's determinations on custody, visitation, property division, and its failure to award her spousal support are clearly erroneous.

I

[¶ 5] Kyle contends the trial court's custody determination is clearly erroneous. In making an initial custody determination, a trial court must base custody on the best interest and welfare of the child, considering all of the factors listed in N.D.C.C. § 14-09-06.2(1). Reeves v. Chepulis, 1999 ND 63, ¶ 10, 591 N.W.2d 791.

[¶ 6] Section 14-09-06.2(1), N.D.C.C., provides in part:

1. For the purpose of custody, the best interests and welfare of the child is determined by the court's consideration and evaluation of all factors affecting the best interests and welfare of the child. These factors include all of the following when applicable:

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 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....

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.

[¶ 7] We exercise a limited review of a child custody award in divorce cases:

A trial court's custody determination is a finding of fact that will not be set aside on appeal unless it is clearly erroneous. A trial court's findings of fact are presumptively correct. The complaining party bears the burden of demonstrating on appeal that a finding of fact is clearly erroneous. In reviewing findings of fact, we must view the evidence in the light most favorable to the findings. A choice between two permissible views of the evidence is not clearly erroneous. Simply because we might view the evidence differently does not entitle us to reverse the trial court. A finding of fact is clearly erroneous only if the reviewing court on the entire evidence is left with a definite and firm conviction that a mistake has been made.

Reeves v. Chepulis, 1999 ND 63, ¶ 8, 591 N.W.2d 791, quoting Reimche v. Reimche, 1997 ND 138, ¶ 12, 566 N.W.2d 790. "While split custody of siblings is generally disfavored, McAdams v. McAdams, 530 N.W.2d 647 (N.D.1995), we have affirmed it in some cases of half-siblings." Ryan v. Flemming, 533 N.W.2d 920, 924 (N.D. 1995). "It is especially appropriate that in close cases having to do with deciding custody of children between two fit parents that due regard be given to the trial court's opportunity to determine the credibility of the witnesses." Dinius v. Dinius, 448 N.W.2d 210, 214 (N.D.1989). Established patterns of care and nurture are relevant factors for consideration in deciding custody. Heggen v. Heggen, 452 N.W.2d 96, 101 (N.D.1990). "An award of custody is a finding of fact, and this Court will not disturb a custody award unless it is clearly erroneous." Brown v. Brown, 1999 ND 199, ¶ 10, 600 N.W.2d 869.

[¶ 8] In considering the thirteen factors specified by N.D.C.C. § 14-09-06.2(1), the trial court found one—factor a—favored Kyle, and found seven—factors b, c, g, h, i, j, and l—favored neither of the parties. With regard to the other five factors, the court found:

D. KayLee has lived on the farm all of her life. Her father is a farmer/rancher. Certainly there are risks and dangers on a farm/ranch. Good common sense and an appreciation of the risks and dangers is necessary in order to be safe on a farm or ranch. KayLee did suffer some bumps, bruises and a burn while she was in her father's custody on the farm. KayLee was also injured while she was in her mother's custody in Braddock. While in Braddock, Kaylee fell off her bike and was injured. And she burned her foot on a lawnmower which was being operated by her half-brother. Prior to the parties' separation, the farm was a good, stable and satisfactory environment in which to raise a child. Just because one of the parties has chosen to leave the farm does not suddenly turn the farm into an unsatisfactory and dangerous place in which to raise a child. Mr. Stoppler understands the risks and dangers on the farm. He has been a farmer/rancher all his life. There is no credible evidence to show that Mr. Stoppler would place his daughter in some kind of jeopardy on the farm.

This factor favors the Plaintiff.

E. During the interim period, the Defendant along with her two sons from a prior marriage, live with Doreen Esperum, the mother of the Defendant, in Doreen's small house in Braddock. After the divorce, the Defendant plans to move to Bismarck where she is currently working for U.S. Health Care. The Defendant, along with her two sons, form a family unit. She hopes to add KayLee to the family unit. Possibly, the Defendant will add Keith Hagen, her boyfriend to the family unit. Since the Defendant plans on moving out of her mother's house, she is not able to inform the court about a custodial home. The Plaintiff lives on the farm and his plan is to stay on the farm. He hopes that the farm will continue to be KayLee's custodial home.

This factor favors the Plaintiff because the farm has always been KayLee's permanent home.

F. The Defendant in her post trial brief stated, "Kyle did admit to having an affair with Keith Hagen prior to the parties' separation." Her adulterous relationship with Keith Hagen is ongoing. Her sexual misconduct with Mr. Hagen continues. She has not attempted to shield her children from her relationship with Mr. Hagen. Mr. Hagen even stays with the Defendant at the Defendant's mother's house. He interacts with her sons. KayLee even knows her mother is seeing another man, who is not her father, Now days, we tend to believe that what any two consenting adults do together is okay. But the plain fact is that this sexual misconduct by the Defendant and Mr. Hagen is simply immoral. Vern Zander, discovered the Defendant in a compromising position with a male motel patron in the hot tub of the Willows Motel, Mr. Zander was employed at the Willows Motel at the time. The Defendant contends that the male patron forced himself upon her. I do not believe her version of the story. She did not...