Deyle v. Deyle

2012 ND 248, 825 N.W.2d 245, 2012 WL 5974874, 2012 N.D. LEXIS 257

• Court: North Dakota Supreme Court
• Decided: November 30, 2012
• Docket: 20120157
• Status: Published

Opinions

CROTHERS, Justice.

[¶ 1] Christina Deyle appeals the district court judgment granting Eric Deyle primary residential responsibility of the parties’ two minor children. We affirm the district court’s award of primary residential responsibility to Eric Deyle. We reverse and remand for further proceedings because the district court failed to adequately explain its denial of summer parenting time, interim child support and attorney fees.

I

[¶ 2] Christina Deyle and Eric Deyle were married on September 8, 2007 and have two children together: H.F.D. born in 2004 and C.E.D. born in 2008. The parties separated in June 2010 when Eric Deyle left the marital home and moved into an apartment. Christina Deyle and the children remained in the marital home in Milnor, North Dakota until December 2011 when a foreclosure action was commenced after Eric Deyle ceased making mortgage payments. Christina Deyle and the children moved in with Christina Deyle’s parents in Milnor. Christina Deyle was the primary caretaker of the children throughout the parties’ separation.

[¶ 3] Christina Deyle commenced a divorce action and sought primary residential responsibility, spousal support and child support. Following trial, the district court awarded Eric Deyle primary residential responsibility and granted Christina Deyle parenting time. The district court did not award attorney fees to either party nor did it award interim child support to Christina Deyle.

II

[¶ 4] Christina Deyle argues granting Eric Deyle primary residential responsibility was clearly erroneous. “A 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 v. Moller, 2012 ND 74, ¶ 5, 815 N.W.2d 266. “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, 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.” Id. (quoting Doll v. Doll, 2011 ND 24, ¶ 6, 794 N.W.2d 425). In reviewing a district court decision, this Court “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. This is particularly relevant for custody decisions involving two fit parents.” Marsden v. Koop, 2010 ND 196, ¶ 8, 789 N.W.2d 531 (quoting Heinle v. Heinle, 2010 ND 5, ¶6, 777 N.W.2d 590).

[¶ 5] “District courts must award primary residential responsibility of children to the party who will best promote the children’s best interests and welfare.” Morris, 2012 ND 74, ¶6, 815 N.W.2d 266. “A district court has broad discretion in awarding primary residential responsibility, but the court must consider all of the relevant factors under N.D.C.C. § 14-09-06.2(1).” Morris, at ¶6. Here, the district court found factors (c), (d), (h) and (m) favored Eric Deyle. Factor (b) favored Christina Deyle. Factors (e) and (g) favored neither party, and factors (i), (j), (k) and (l) were irrelevant.

A

[¶ 6] Christina Deyle argues the district court erred in finding factor (d) favored Eric Deyle. Under factor (d) the court considers “[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(l)(d). The district court found that “it is in the children’s best interest to stay in Milnor to be near Christina’s family (for both children) and to maintain continuity in community activities and school (at this time for the older child).” The district court explained:

“Christina’s living situation is likely going to change at least two and perhaps three times in the foreseeable future; moving out of her parent’s home into another home in Milnor, possibly moving to Wahpeton for school, and then moving to find work as a hygienist. While I commend her for continuing her education, stability and continuity is what is best for these children.”

Christina Deyle argues the district court erred as a matter of law by speculating about future events and by making findings that were not supported by any evidence.

[¶ 7] The district court did not misapply the law in its analysis regarding factor (d) by examining the effects of a potential future relocation by Christina Deyle. Traditionally, “[fjactor (d) require[d] consideration of the stability and quality of the child’s past environment.” Marsden, 2010 ND 196, ¶ 19, 789 N.W.2d 531 (quotation omitted) (emphasis added). “[F]actor (e) use[d] a forward-looking approach to the stability of the family unit, its interrelations and environment, versus the backward-looking factor (d).” Lindberg v. Lindberg, 2009 ND 136, ¶ 13, 770 N.W.2d 252 (quotation omitted). Section 14-09-06.2(1), N.D.C.C., was amended in 2009, resulting in substantive changes to several of the best interest factors. 2009 N.D. Sess. Law ch. 149, § 5. Pre-2009 factors (d) and (e) were combined to create the amended factor (d). Sherry Mills Moore, chair of the Custody and Visitation Task Force formed by the State Bar Association of North Dakota, provided testimony to the legislature regarding the purpose of the amendments to N.D.C.C. § 14-09-06.2(1) contained in Senate Bill 2042. Moore testified that “[t]he proposed language in paragraph (d) combines and clarifies the concepts embodied in existing paragraphs (d) and (e).” A plain reading of the pre- and post-amendment factors confirms this.

[¶ 8] Pre-2009 factor (d) directed consideration of “[t]he length of time the child has lived in a stable satisfactory environment and the desirability of maintaining continuity.” N.D.C.C. § 14-09-06.2(l)(d) (2009). Pre-2009 factor (e) directed consideration of “[t]he permanence, as a family unit, of the existing or proposed custodial home.” N.D.C.C. § 14-09-06.2(l)(e) (2009). Current factor (d) incorporates consideration both of the length of time the child has lived in a stable home as well as the permanence or stability of the home environment and adds the forward-looking consideration of “the desirability of maintaining continuity in the child’s home and community.” N.D.C.C. § 14-09-06.2(l)(d).

[¶ 9] Factor (d) no longer restricts the district court’s analysis to past events. After the legislature incorporated pre-2009 factors (d) and (e) into the current factor (d), district courts now must look both forward and backward, just as the district court did in this case. The district court found granting Eric Deyle primary residential responsibility would provide greater continuity and stability because of Christina Deyle’s potential relocations. This finding was supported by the record. The district court’s finding factor (d) favored Eric Deyle is not clearly erroneous both because it is a correct application of law and because it is supported by the evidence.

B

[¶ 10] Christina Deyle argues the district court erred in finding factor (e) favored neither party. Courts applying factor (e) consider “[t]he willingness and ability of each parent to facilitate and encourage a close and continuing relationship between the other parent and the child.” N.D.C.C. § 14-09-06.2(l)(e). The district court found “the parties are both willing and able to foster the parental relationship of the other” and both parties recognized the importance of the other parent’s role in the children’s lives. The record reflects testimony from both Christina Deyle and Eric Deyle supporting this finding. The district court’s finding factor (e) favored neither party is not clearly erroneous because it is supported by the evidence.

C

[¶ 11] Christina Deyle argues the district court erred in finding factor (h) favored Eric Deyle. Courts applying factor (h) consider “[t]he home, school, and community records of the child and the potential effect of any change.” N.D.C.C. § 14-09-06.2(l)(h). The district court noted the possibility of a relocation by Christina Deyle and also found Eric Deyle was involving the older child in the community. Christina Deyle argues the district court erred by speculating as to Christina Deyle’s future.

[¶ 12] Factor (h) expressly requires that the court consider the potential effects of change. The court must look forward under this factor to determine whether foreseeable changes could impact a child’s life in the home, school and community. Here, the district court noted the reasonable possibility of future relocation by Christina Deyle due to her anticipated education and employment in the dental field and the lack of those jobs in the Milnor area. From that evidence, the district court found Christina Deyle’s likely move would have an adverse impact on the children. The district court also found Eric Deyle actively involved the older child in community activities. These findings are supported by the record. The district court’s finding factor (h) favored Eric Deyle is not clearly erroneous because it is supported by the evidence.

D

[¶ 13] Christina Deyle argues the district court erred in finding factor (k) favored neither party because the district court did not consider the close bond the children have with their maternal grandparents. Under factor (k) the court considers:

“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.”

N.D.C.C. § 14 — 09—06.2(l)(k).

[¶ 14] The district court found no potential negative impact by any new romantic partners of the divorcing parents. We have explained that factor (k) addresses the negative influence of third parties, not the positive influence of extended family. Schmidt v. Schmidt, 2003 ND 55, ¶ 10, 660 N.W.2d 196. The district court properly considered the children’s close bond with their maternal grandparents in its factor (m) analysis. The district court did not misapply the law, and its finding factor (k) favored neither party is not clearly erroneous.

E

[¶ 15] Christina Deyle argues the district court erred in finding factor (m) favored Eric Deyle. Under factor (m) the court considers “[a]ny 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(l)(m). The district court found that the children’s maternal grandparents played a significant role in their lives and that Eric Deyle fostered the children’s relationship with their maternal grandparents. The district court was concerned with the possibility of Christina Deyle’s relocation and the potential negative impact a move would have on the children. Eric Deyle testified he intended to remain in the Milnor area, and Christina Deyle testified about her intent to become a dental hygienist and the possibility of a future move to find work. The record supports the district court’s findings. The district court’s finding factor (m) favored Eric Deyle was not clearly erroneous.

[¶ 16] We conclude the district court did not err in analyzing the best interests factors under N.D.C.C. § 14-09-06.2 because the court’s findings properly applied the law and were supported by the evidence.

Ill

[¶ 17] Christina Deyle argues the district court’s award of parenting time was clearly erroneous. A trial court’s determination of parenting time is a finding of fact subject to the clearly erroneous standard of review. Krueger v. Krueger, 2011 ND 134, ¶ 12, 800 N.W.2d 296. “In awarding visitation to the non-custodial parent, the best interests of the child, rather than the wishes or desires of the parents, are paramount.” Bertsch v. Bertsch, 2006 ND 31, ¶ 5, 710 N.W.2d 113. “We have stated visitation between a noncustodial parent and a child is presumed to be in the child’s best interests and that it is not merely a privilege of the non-custodial parent, but a right of the child.” Hendrickson v. Hendrickson, 2000 ND 1, ¶ 21, 603 N.W.2d 896.

[¶ 18] Christina Deyle argues the district court erred by not awarding extended parenting time during Christmas vacation and summer break. The district court stated it would adopt Erie Deyle’s proposed parenting time plan, but ultimately, it did not do so in the final order or judgment. Eric Deyle’s plan provided for extended parenting time during Christmas vacation, summer break and an extra hour during the week. However, we have held, “[I]f there is a discrepancy between a trial court’s oral and subsequent written statements, the written statements control.” Brown v. Brodell, 2008 ND 183, ¶ 12, 756 (citing Wetzel v. Schlenvogt, 2005 ND 190, ¶ 26, 705 N.W.2d 886).

[¶ 19] The district court did not explain the lack of extended summer visitation. “[A]bsent a reason for denying it, some form of extended summer visitation with a fit non-custodial parent is routinely awarded if a child is old enough.” Dschaak v. Dschaak, 479 N.W.2d 484, 487 (N.D.1992); see Tibor v. Tibor, 2001 ND 43, ¶ 14, 623 N.W.2d 12 (holding trial court’s order for seven weeks of summer visitation not clearly erroneous); Schiff v. Schiff, 2000 ND 113, ¶30, 611 N.W.2d 191 (holding trial court did not err in granting father extended summer visitation). In Dschaak, we held, “Absent an explanation or reason for the trial court’s failure to grant some sort of extended summer visitation ... we conclude it erred in that regard.” 479 N.W.2d at 487. Similarly, the district court’s failure here to explain the lack of extended summer parenting time was error, and remand is necessary for reconsideration and a reasoned explanation of the district court’s ruling.

IV

[¶ 20] Christina Deyle argues the district court abused its discretion by failing to award her back child support. “[A] district court’s decision whether to award past child support is discretionary and will not be overturned on appeal unless the court has abused its discretion.” Hagel v. Hagel, 2006 ND 181, ¶7, 721 N.W.2d 1. “A court abuses its discretion when it acts in an arbitrary, unreasonable, or unconscionable manner, its decision is not the product of a rational mental process leading to a reasoned decision, or it misinterprets or misapplies the law.” Id. at ¶ 9. “When ... the district court provides no indication of the evidentiary and theoretical basis for its decision and the basis is not otherwise ascertainable in the record, we are left to speculate whether factors were properly considered and the law was properly applied, leaving us unable to perform our appellate function.” Id.

[¶ 21] Here the district court found “Eric [Deyle] did not pay any child support during the period of separation. [Eric Deyle] had an obligation to support his children during that period of time.” Despite this finding, the district court did not award interim child support to Christina Deyle and did not explain the denial. As in Hagel, we are left to speculate whether factors were properly considered and the law was properly applied, leaving us unable to perform our appellate function. We therefore remand for reconsideration and a reasoned explanation of the district court’s ruling.

V

[¶ 22] Christina Deyle argues the district court abused its discretion by not awarding attorney fees and costs to Christina Deyle. “Courts have ‘considerable discretion’ in awarding attorney fees under N.D.C.C. § 14-05-23, and the court’s decision will not be reversed on appeal unless the court abused its discretion.” Stephenson v. Stephenson, 2011 ND 57, ¶ 30, 795 N.W.2d 357. “[T]he primary standard governing an award of attorney fees in a divorce action is one spouse’s needs and the other spouse’s ability to pay.” Kelly v. Kelly, 2011 ND 167, ¶34, 806 N.W.2d 133. “The court should consider the property owned by each party, their relative incomes, whether property is liquid or fixed assets, and whether the action of either party unreasonably increased the time spent on the ease.” Wagner v. Wagner, 2007 ND 101, ¶ 23, 733 N.W.2d 593 (quotation omitted).

[¶ 23] Christina Deyle testified she did not have the ability to pay her attorney fees. The district court found Eric Deyle had the ability to pay his attorney fees. The district court concluded “[n]o costs or attorney fees are awarded to either party[,]” but it provided no explanation for the denial. We are left to speculate whether factors were properly considered and the law was properly applied, leaving us unable to perform our appellate function. Hagel, 2006 ND 181, ¶9, 721 N.W.2d 1. We remand for reconsideration and a reasoned explanation of the district court’s ruling.

VI

[¶ 24] We affirm the district court’s judgment awarding primary residential responsibility of the children to Eric Deyle. We reverse and remand the district court’s award of parenting time, denial of interim child support and denial of attorney fees for further proceedings consistent with this decision.

[¶ 25] GERALD W. VANDE WALLE, C.J., and DALE V. SANDSTROM, J, concur. [¶ 26] The Honorable WILLIAM F. HODNY, S.J., sitting in place of KAPSNER, J., disqualified.