Hurt v. Hurt

2001 ND 13, 621 N.W.2d 326, 2001 N.D. LEXIS 5, 2001 WL 74962
CourtNorth Dakota Supreme Court
DecidedJanuary 30, 2001
Docket20000177
StatusPublished
Cited by13 cases

This text of 2001 ND 13 (Hurt v. Hurt) 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
Hurt v. Hurt, 2001 ND 13, 621 N.W.2d 326, 2001 N.D. LEXIS 5, 2001 WL 74962 (N.D. 2001).

Opinion

MARING, Justice.

[¶ 1] Raymond Hurt appeals from a divorce judgment awarding custody of the parties’ two children to Rosemary Hurt. We affirm.

I

[¶ 2] Raymond and Rosemary Hurt were married December 28, 1990. At the time of the marriage, Rosemary had six children, five of whom were from a previous marriage. Rosemary’s sixth child, Timothy, was from a previous relationship. Following the parties’ marriage, Raymond adopted Timothy, and subsequently, the couple had a child of their own.

[¶ 3] In February 1998, Raymond allegedly committed an act of physical abuse. As a result of the incident, Rosemary obtained a temporary adult abuse protection order on February 20, 1998, and an adult abuse protection order on March 6, 1998. After the incident occurred, Rosemary and the parties’ two children moved into a domestic violence shelter where they remained until April of 1998. In October 1998, Raymond allegedly committed a second act of physical abuse, and on October 12, 1998, Rosemary obtained a temporary domestic violence protection order. On October 28, 1998, Rosemary obtained a domestic violence protection order, and the order remained in effect until February 11, 1999. Following the second incident of physical abuse, Rosemary and the children once again moved into the domestic violence shelter where they remained until February 11,1999.

[¶ 4] Shortly after moving out of the domestic abuse shelter, Rosemary sued for divorce. The trial court granted Raymond interim custody of the parties’ children. The court appointed a guardian ad litem to provide a custody evaluation. The guardian ad litem recommended awarding custody of the children to Raymond.

*329 [¶ 5] A trial was held on February 10 and 11, 2000. On April 20, 2000, a judgment was entered awarding physical custody of the parties’ children to Rosemary and granting Raymond liberal visitation. In its findings of fact, the trial court found both parents had exhibited some of the worst parenting it had ever seen. The court further found that Rosemary and Raymond were unable to communicate regarding visitation. Specifically, it stated “Rosemary has refused to talk with Raymond and when [the parties] do speak Raymond does not stick to the topic of parenting.” On June 14, 2000, Raymond filed his Notice of Appeal.

II

[¶ 6] Raymond contends the trial court erred in awarding physical custody of the parties’ two children to Rosemary. In Reeves v. Chepulis, 1999 ND 63, ¶ 8, 591 N.W.2d 791 (citation omitted), our Court reiterated the standard of review of a trial court’s custody award under N.D.R.Civ.P., 52(a):

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.

[¶ 7] In determining an initial custody award, a trial court must consider the best interests and welfare of the child. Schumacher v. Schumacher, 1999 ND 149, ¶ 16, 598 N.W.2d 131. The trial court applied the best interests of the child factors under N.D.C.C. § 14-09-06.2(1) and made findings as to each factor. Several factors favored neither Raymond nor Rosemary. The court found both parties have love and affection for their children, there exist emotional bonds between the children and each parent, and both parents have the disposition to give their children love and affection. The court further found both parents are morally fit. The court finally stated the children expressed no preference as to which parent they live with.

[¶ 8] Raymond argues the trial court’s findings of fact are inconsistent because it concluded he was better able to continue the education of the children, but that Timothy’s school record with Rosemary was more favorable. The fact, however, that one factor favors one party and another factor favors the other party does not necessarily indicate the court’s findings of fact are inconsistent. These two factors do not consider identical interests. One factor considers the disposition to continue education and the other factor considers the actual school record of the children. The court found Raymond had a greater disposition to continue the children’s education because Raymond demonstrated a willingness to work with the school and Rosemary failed to take appropriate steps to get involved with the children’s education after Raymond was awarded interim custody. However, it found the parties’ oldest child, Timothy, had a poor school record while living with Raymond. Timothy’s grades declined during the interim custody order, and his principal at school described him as having above average ability with below average performance. Alternatively, when Timothy lived with Rosemary at the domestic abuse shelter he did well in school and enrolled in a school basketball program. After considering all of the evidence, we are not convinced the trial court made inconsistent findings.

*330 [¶ 9] Raymond complains the trial court erroneously concluded Rosemary has a greater disposition to provide the children with medical care. He states this factor should favor neither party. The trial court found “the evidence indicates that Timothy would appear to be in need of and probably benefit from a psychological evaluation and appropriate follow up treatment.” Raymond argues the trial court was speculating as to Timothy’s possible psychological problems. Timothy’s performance at. school and the guardian ad litem’s testimony, however, suggest Timothy is indeed in need of psychological treatment. Rosemary indicated she was in favor of seeking psychological treatment for Timothy, and the court concluded Rosemary is more inclined to assist Timothy with any such psychological treatment. Raymond, however, believed it was not necessary for Timothy to seek counseling, but stated he would support psychological treatment if ordered to do so. The court concluded Raymond lacked concern regarding Timothy’s psychological problems and, therefore, correctly concluded Rosemary was better able to provide Timothy with any medical treatment. On this record, we cannot say the trial court erred in determining Rosemary had a greater disposition to provide the children with medical care.

[¶ 10] Raymond next contends the trial court erroneously determined domestic violence occurred during the marriage. Specifically, he states no credible evidence was introduced at trial that indicated he physically abused Rosemary. The evidence of domestic violence presented to the trial court did not trigger the rebuttable presumption under N.D.C.C. § 14-09-06.2(1)0'). Evidence of domestic violence which does not trigger the presumption, nonetheless, remains one of the best interest factors to be considered by the trial court. Schumacher, 1999 ND 149, ¶ 17, 598 N.W.2d 131; Reeves, 1999 ND 63, ¶ 15, 591 N.W.2d 791.

Free access — add to your briefcase to read the full text and ask questions with AI

Related

McCay v. McCay
2024 ND 130 (North Dakota Supreme Court, 2024)
Stai-Johnson v. Johnson
2015 ND 99 (North Dakota Supreme Court, 2015)
Krueger v. Tran
2012 ND 227 (North Dakota Supreme Court, 2012)
Niemann v. Niemann
2008 ND 54 (North Dakota Supreme Court, 2008)
Klein v. Larson
2006 ND 236 (North Dakota Supreme Court, 2006)
Hogan v. Hogan
2003 ND 105 (North Dakota Supreme Court, 2003)
Neidviecky v. Neidviecky
2003 ND 29 (North Dakota Supreme Court, 2003)
Eggl v. Letvin Equipment Co.
2001 ND 144 (North Dakota Supreme Court, 2001)
Peek v. Berning
2001 ND 34 (North Dakota Supreme Court, 2001)
Interest of J.S.
2001 ND 10 (North Dakota Supreme Court, 2001)

Cite This Page — Counsel Stack

Bluebook (online)
2001 ND 13, 621 N.W.2d 326, 2001 N.D. LEXIS 5, 2001 WL 74962, Counsel Stack Legal Research, https://law.counselstack.com/opinion/hurt-v-hurt-nd-2001.