Hendrickson v. Hendrickson

553 N.W.2d 215, 1996 N.D. LEXIS 215, 1996 WL 509975
CourtNorth Dakota Supreme Court
DecidedSeptember 10, 1996
DocketCivil 950331
StatusPublished
Cited by35 cases

This text of 553 N.W.2d 215 (Hendrickson v. Hendrickson) 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
Hendrickson v. Hendrickson, 553 N.W.2d 215, 1996 N.D. LEXIS 215, 1996 WL 509975 (N.D. 1996).

Opinions

MESCHKE, Justice.

Mark Hendrickson appealed from a decree entered in the divorce action by Diane Hen-drickson. We affirm the decree, but remand for a slight modification and a determination of attorney’s fees for Diane.

Mark and Diane married and purchased a home in Jamestown in 1980. They had four children — Carinna, Anthony, Matthew, and Andrew — during the marriage. They also raised Diane’s daughter, Carissa Nygard, who was five years old when they married. Throughout their marriage, Diane worked in Jamestown and Mark worked in Dickinson. Throughout the marriage, Diane and the children lived in Jamestown, while Mark lived in Dickinson during the week and spent weekends, holidays, and vacations in Jamestown.

After a trial, the divorce decree granted them a divorce, awarded custody of the children to Diane, ordered Mark to pay child support of $1,029 per month, and distributed the marital property. Mark appealed.1

1. Child Custody:

Mark contends the trial court abused its discretion in awarding custody of the children to Diane. As Weber v. Weber, 512 N.W.2d 723 (N.D.1994), explained, we treat a trial court’s determinations about child custody as findings of fact that we will not disturb unless clearly erroneous.

The best interests and welfare of the child control a child custody decision. NDCC 14-09-06.1; Wolf v. Wolf, 474 N.W.2d 257 (N.D.1991). Section 14-09-06.2(1) of the North Dakota Century Code lists thirteen possible factors on the best interest/" and welfare of a child for a trial court to consider in deciding custody:

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 [217]*217include 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. In awarding custody or granting rights of visitation, the court shall consider evidence of domestic violence. If the court finds credible evidence that domestic violence has occurred, this evidence creates a rebuttable presumption that a parent who has perpetrated domestic violence may not be awarded sole or joint custody of a child....
k. The 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 ....
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.

Mark contends that, in its memorandum decision, the trial court made no findings under factors a through l, and only two findings under factor m: “First, that the residential arrangements establish custody for Diane and secondly, because Mark seemed unable to develop a happy and healthy relationship with a 20 year old stepdaughter that in the court’s opinion ‘had a contagious effect upon the father and child relationship’ with half-brother and half-sister.” Mark’s summary greatly understates the court’s analysis.

In its memorandum decision, the trial court found:

The Court has reviewed the various elements established by our legislature in NDCC 14-09-06.2 regarding custody. Two factors particular to this case are decisive in resolving what custodial arrangement would be in the best interests and welfare of the four children of the parties.
First, Mark and Diane effectively — even if not deliberately or knowingly — jointly decided in advance the issue of custody through the residential arrangements they voluntarily made. That is, by having two separate dwellings with Mark living in the family home in Jamestown only on weekends and holidays, the children became quite naturally attached to the family home in Jamestown. Similarly, the children have quite naturally developed a secure and warm relationship with their mother through the years. Because of the absence of Mark during the weekdays, the children’s relationship with their father is somewhat more distant. As a consequence, the children have also established school and community ties in Jamestown and it would not serve any good purpose of the children to disrupt those ties merely because the parents have decided to dissolve their marriage.
Secondly, Mark seemed unable to develop a happy and healthy relationship with his step-daughter Carissa. While the reasons [218]*218for that failure may be multiple as well as difficult to ascertain, Mark contributed substantially to the near estrangement of his relationship of Carissa through action and conduct that may fairly be described as emotional and physical abuse. Unfortunately, Mark’s occasional unkind and inappropriate treatment of Carissa had a contagious effect upon the father and child relationship with his three older biological children. The youngest, Andrew, seems not yet to be infected and, because Carissa is now an adult, Andrew should probably should not suffer any ill effects of Mark’s inappropriate parentage of Carissa.
The realistic result is that the children as a family group share a special feeling of security, warmth, fondness, and affection for their mother to a higher degree than that they enjoy with their father. Accordingly, the Court finds as a fact that the best interests and welfare of Carinna, Anthony, Matthew, and Andrew will be served by placing their primary care, custody, and control with Diane.

In addition to factor m, these findings certainly treat factors a,b, e, and h of NDCC 14-09-06.2(1). These findings are supported by the evidence.

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Bluebook (online)
553 N.W.2d 215, 1996 N.D. LEXIS 215, 1996 WL 509975, Counsel Stack Legal Research, https://law.counselstack.com/opinion/hendrickson-v-hendrickson-nd-1996.