Vandal v. Leno, 20130301.

• Decision Date: 11 March 2014
• Docket Number: No. 20130301.,20130301.
• Parties: Adam M. VANDAL, Plaintiff and Appellee v. Sheena E. LENO, n/k/a Sheena E. Mittleider, Defendant and Appellant.
• Court: North Dakota Supreme Court

843 N.W.2d 313

2014 ND 45

Adam M. VANDAL, Plaintiff and Appellee

v.Sheena E. LENO, n/k/a Sheena E. Mittleider, Defendant and Appellant.

No. 20130301.

Supreme Court of North Dakota.

March 11, 2014.

Jaclyn M. Stebbins, Bismarck, ND, for plaintiff and appellee.

Justin D. Hager, Bismarck, ND, for defendant and appellant.

VANDE WALLE, Chief Justice.

[¶ 1] Sheena Leno, now known as Sheena Mittleider, appealed from a district court order denying her expedited motion to reopen the record, and from a judgment awarding Adam Vandal primary residential responsibility of the parties' minor child, L.V. We affirm, concluding the district court's decision to award primary residential responsibility to Vandal was not clearly erroneous. We also conclude the district court did not abuse its discretion in denying Leno's request to reopen the record.

I

[¶ 2] Leno and Vandal were never married. Their relationship began approximately in 2010 and ended in January 2012. During that time, they had one child together, L.V., who was born in 2011. Leno alleged their relationship ended because Vandal was physically and verbally abusive toward her. Vandal alleged the relationship deteriorated as a result of Leno's selling and abusing prescription drugs and her verbally abusive behavior.

[¶ 3] In March 2012, Vandal filed an action seeking primary residential responsibility and decision-making of L.V. Leno filed an answer and counterclaim seeking primary residential responsibility. Vandal also petitioned the court for an ex parte interim order alleging that the parties' minor child was in imminent danger while in Leno's custody because of her alleged prescription drug abuse. The court issued an ex parte interim order granting Vandal primary residential responsibility of L.V. After a hearing, the court concluded it erred in issuing the ex parte interim order because Vandal did not present evidence of exceptional circumstances. The court vacated the ex parte interim order. A subsequent interim order was entered directing that primary residential responsibility for L.V. be alternated between each parent on a weekly basis.

[¶ 4] In January 2013, a parenting investigator was appointed to the matter. In June 2013, the parenting investigator submitted her report recommending that Vandal should be given primary residential responsibility. The report indicated Leno abused and sold prescription pain medications. The report also contained allegations from Leno that, in late December 2011, Vandal punched her in the back of the head while she was standing at a kitchen sink making a bottle for L.V. Leno did not report the incident to police but ended her relationship with Vandal within days of the alleged incident. Leno also alleged Vandal once threw a baby bottle top at her while she was holding L.V. The top allegedly hit L.V. Vandal denied hitting Leno in the back of the head, instead claiming he poked her with one finger. He admitted throwing a rubber nipple, but denied it hit L.V. At trial he stated the rubber nipple “grazed” the child. The report contained a finding that the incidents did not fit the legal definition of domestic violence. The report included a recommendation that Leno should be required to take a drug and alcohol evaluation.

[¶ 5] A trial was held in July 2013. In August 2013, Leno made a motion to reopen the record to include a letter from an addiction counselor. The court denied the motion as untimely. In September 2013, the court entered a judgment awarding Vandal primary residential responsibility over L.V., including decision-making authority.

II

[¶ 6] This Court reviews an award of primary residential responsibility under the clearly erroneous standard of review, which does not allow us to reweigh the evidence, reassess the credibility of witnesses, or substitute our own judgment for a district court's initial decision. Martiré v. Martiré, 2012 ND 197, ¶ 6, 822 N.W.2d 450. A district court's decision awarding primary residential responsibility is a finding of fact which will not be set aside on appeal unless it is induced by an erroneous view of the law, no evidence exists to support it, or, on the entire record, we are left with a definite and firm conviction a mistake has been made. Smith v. Martinez, 2011 ND 132, ¶ 3, 800 N.W.2d 304. A choice between two permissible views of the weight of the evidence is not clearly erroneous. Id.

[¶ 7] On appeal, Leno argues the court erred in awarding primary residential responsibility to Vandal. “A district court must award primary residential responsibility to the parent who will better promote the child's best interests.” Dieterle v. Dieterle, 2013 ND 71, ¶ 6, 830 N.W.2d 571. “A district court must consider the best interests of the child in awarding primary residential responsibility, and in doing so must consider all the relevant best-interest factors contained in N.D.C.C. § 14–09–06.2(1).” Martiré, 2012 ND 197, ¶ 6, 822 N.W.2d 450. A separate finding for each statutory factor is not necessary, however, the court's findings must contain sufficient specificity to show the factual basis for the decision. Datz v. Dosch, 2013 ND 148, ¶ 9, 836 N.W.2d 598. “It is not enough for the district court merely to recite or summarize testimony presented at trial to satisfy the requirement that findings of fact be stated with sufficient specificity. Rather, specific findings explaining how the statutory factors apply in the case are required.” Id. (citation omitted).

[¶ 8] Leno contends the court erred in deciding several of the statutory best interests of the child factors. In its findings of fact, conclusions of law, and order for judgment, the court considered each of the best interests of the child factors listed in N.D.C.C. § 14–09–06.2. The court found that factors (a), (b), (c), (d), (f), (h), (i), and (j) did not favor either party or were not applicable. The court found factors (e), (g), and (k) favored Vandal. Leno argues several of the factors the court found that favored Vandal, or were not applicable, should have favored her:

[¶ 9] Factor (b). Leno contends factor (b), which the court found favored neither party, should have favored her. Factor (b) provides, “[t]he ability of each parent to assure that the child receives adequate food, clothing, shelter, medical care, and a safe environment.” N.D.C.C. § 14–09–06.2(1)(b). The court stated, “[e]ach parent questions the other parent's environment. Sheena [Leno] questions Adam's [Vandal] ability to control his anger. Adam questions Sheena's use of prescription drugs, mental health issues, and marrying Thomas Mittleider, who has an extensive criminal history and is on felony probation.” The court additionally found Vandal completed treatment for his past drug and alcohol abuse and that he needs to work on controlling his anger. Leno testified she abused prescription drugs but that she does not currently use prescription pain medication.

[¶ 10] Leno argues the court did not consider an alleged incident in which Vandal was driving at excessive speeds with the child in the car. At trial, the court heard testimony from Leno that she witnessed Vandal “traveling almost at 100 miles per hour” on the interstate. On cross-examination, Vandal stated he was “going like five miles over” the speed limit. Leno also contends the court should have considered that Vandal allegedly displayed his anger in front of the child by punching walls, slamming doors, and calling Leno vulgar names.

[¶ 11] Under the clearly erroneous standard, this Court will not reweigh evidence or reassess the credibility of witnesses. Leno's argument asks this Court to reexamine the evidence that was previously reviewed by the district court and reassess witness credibility. The district court reviewed the evidence, including testimony about Vandal's speeding and anger management issues, slamming doors, vulgar name calling, and punching walls. The court heard testimony concerning Leno selling and abusing prescription drugs. The court noted that Vandal completed treatment for drugs and alcohol and that Leno does not currently use prescription pain medication. The court also heard testimony from both parties that they could provide L.V. with the basic necessities of food, clothing, shelter, and medical care. The parenting investigator testified each party could provide food, clothing, and shelter but that the function of providing medical care and a safe environment weighed in Vandal's favor. There is evidence in the record to support the court's finding; it is not clearly erroneous.

[¶ 12] Factor (d). Leno argues factor (d) should have favored her. The court found the factor favored neither parent. Factor (d) states, “[t]he 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.” N.D.C.C. § 14–09–06.2(1)(d). In reviewing the factor, the court stated:

Adam lives with his mother in her home along with his sister. He has the support of his mother, sister, and his father, who also lives in the [Bismarck] area. Sheena lives with her husband on the farm in the Tappen, North Dakota area. She has the support of her husband's extended family, who also live in the area on the farm. Currently, L.V. is living with each parent one week at a time. L.V. is too young now to have community ties. According to ... the parenting investigator, L.V. is comfortable in both homes.

Leno again essentially urges this Court to reweigh the evidence and testimony. She argues her home environment is more appropriate and that Vandal does not have a desirable living environment. Under the clearly erroneous standard, we do not reweigh the evidence or reassess the credibility of witnesses. Leno is unable to demonstrate that the court's finding regarding factor (d) was clearly erroneous; there is evidence in the record to...