Bader v. Bader

448 N.W.2d 187, 1989 N.D. LEXIS 223, 1989 WL 140063
CourtNorth Dakota Supreme Court
DecidedNovember 20, 1989
DocketCiv. 890105
StatusPublished
Cited by30 cases

This text of 448 N.W.2d 187 (Bader v. Bader) is published on Counsel Stack Legal Research, covering North Dakota Supreme Court primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Bader v. Bader, 448 N.W.2d 187, 1989 N.D. LEXIS 223, 1989 WL 140063 (N.D. 1989).

Opinions

LEVINE, Justice.

Christopher Bader appeals from a divorce judgment which granted Cynthia Bader custody of the couple’s young [188]*188daughter, Samantha, spousal support, and a cash payment of $6,000 to accomplish an equitable property distribution. We affirm the custody and spousal support awards but reverse the property division and remand for a reconsideration of that portion of the judgment.

Christopher and Cynthia were married on July 20, 1985, in Cawker City, Kansas. At the time of the marriage, Christopher was 21 years old and Cynthia was 18. Christopher had a bachelor’s degree in geology and Cynthia had a high school diploma. The Baders moved to North Dakota in October 1985 where Christopher took a job as a hydrologist with the State Water Commission. The Bader’s only child, Samantha, was born on March 17, 1987.

The parties separated in October 1988 and Christopher filed for divorce. The trial court granted the divorce to both parties, awarded custody of Samantha to Cynthia and granted her permission to leave North Dakota with Samantha. The court awarded Cynthia monthly spousal support of $400 beginning April 1, 1989 and continuing through July 1, 1992. It also found that for purposes of property division, Christopher was at fault for the failure of the marriage and ordered Christopher to pay Cynthia $6,000 to achieve an “equitable” property division. Christopher appeals from that judgment. Cynthia requests attorney’s fees for the appeal.

Christopher argues that the trial court erred in assessing fault and in awarding property. He also attacks the awards of spousal support, custody and permission to move to Illinois with the child.

Custody determinations, property divisions and awards of spousal support are all questions of fact subject to the clearly erroneous standard of Rule 52(a), North Dakota Rules of Civil Procedure. Roen v. Roen, 438 N.W.2d 170 (N.D.1989). A finding of fact is clearly erroneous when, although there is some evidence to support it, the reviewing court on the entire evidence is left with a definite and firm conviction that a mistake has been made. Kaloupek v. Burfening, 440 N.W.2d 496, 497 (N.D.1989).

CUSTODY

With regard to custody, the trial court specifically found that the best interests of the child will be served by placing custody in Cynthia. The court stated:

“The mother is no less a caring, loving and competent parent than the father. The father has demonstrated some competency in child care, but clearly is a structured person, impatient and more career- and goal-oriented than family-focused. In the near future, as the child grows older, the inherent conflicts will not operate to the benefit of the child.”

Between two fit and loving parents, the standard for determining custody is the best interests and welfare of the child. Roen, supra, 438 N.W.2d at 173. A majority of this court holds the view that the trial court should give equal weight to each relevant factor enumerated in NDCC § 14-09-06.2 to determine the best interests of the child. See Gravning v. Gravning, 389 N.W.2d 621 (N.D.1986). While there is no requirement that the trial court make an express written finding as to each statutory factor, Lapp v. Lapp, 293 N.W.2d 121 (N.D.1980), it would make appellate review more principled were that practice followed. However, the record does disclose sufficient evidence on the relevant factors to satisfy the requirements of § 14-09-06.2. Lapp, supra, 293 N.W.2d at 128. We believe the trial court weighed in Cynthia’s favor the evidence regarding the parents’ respective approach to child care, including discipline and nurture. From our review of the record in this case, we conclude that the trial court did not clearly err in finding that awarding custody to Cynthia was in the best interests of the child.

In awarding custody to Cynthia and visitation to Christopher, the trial court obviously took into account the fact that Cynthia intended to move to Illinois. It heard the testimony about Cynthia’s father’s home in Illinois to which Cynthia and Samantha would move. There was also testimony from Cynthia about her plan to enter beauty school in Illinois and her desire to [189]*189establish a new life for herself and her daughter. The trial court also heard testimony about Christopher’s possible move out of state to attend graduate school. The trial court left it to the parties to structure visitation. We conclude the trial court did not err. in allowing Cynthia to move to Illinois with Samantha.

PROPERTY DIVISION

In dividing marital property, the trial court is to make an equitable distribution of the assets. Wastvedt v. Wastvedt, 371 N.W.2d 142 (N.D.1985). There is no requirement that property be divided equally in order to be divided equitably, but when a substantial inequality in the property division exists, that disparity must be explained. Volk v. Volk, 404 N.W.2d 495, 497 (N.D.1987); Anderson v. Anderson, 390 N.W.2d 554, 556 (N.D.1986). Fault may be a relevant factor in property division. Erickson v. Erickson, 384 N.W.2d 659, 661 (N.D.1986). A majority of this court believes that no distinction need be drawn between economic fault and noneco-nomic fault. Persons v. Persons, 396 N.W.2d 744, 745 (N.D.1986).

The trial court found that “concerning property division ... the primary fault or responsibility of this marriage failing rests with the husband.” It then divided the property as each party had requested but awarded an additional $6,000 to Cynthia because “[t]he disparity in the value of the property distribution necessitates a cash accommodation to make an equitable distribution.”

The trial court made no finding of the value of property awarded to the parties. Without weighing the evidence, we are unable to discern from this ambiguous record what figures the trial court relied on to find a disparity in value. Moreover, the trial court’s finding of fault strongly suggests that fault played a part in this division of property but we are unable to determine what impact it had or, indeed, what the fault was. We also wonder why, if the trial court intended the fault of Christopher to support a larger award of property to Cynthia, it referred to a “disparity of value” to justify the $6,000 award.

The trial court did not explain what Christopher’s fault was. The only hint at what Christopher's marital fault might be lies in the trial court’s assessment of Christopher’s character which is contained in the paragraph awarding custody of Samantha to Cynthia and which we have quoted earlier. We agree that these characteristics bear on the parent-child relationship and, therefore, were properly addressed in the best-interests-of-the-child determination.

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Cite This Page — Counsel Stack

Bluebook (online)
448 N.W.2d 187, 1989 N.D. LEXIS 223, 1989 WL 140063, Counsel Stack Legal Research, https://law.counselstack.com/opinion/bader-v-bader-nd-1989.