Law v. Whittet

2014 ND 69, 844 N.W.2d 885, 2014 WL 1356803, 2014 N.D. LEXIS 71
CourtNorth Dakota Supreme Court
DecidedApril 7, 2014
Docket20130241
StatusPublished
Cited by16 cases

This text of 2014 ND 69 (Law v. Whittet) 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
Law v. Whittet, 2014 ND 69, 844 N.W.2d 885, 2014 WL 1356803, 2014 N.D. LEXIS 71 (N.D. 2014).

Opinions

SANDSTROM, Justice.

[¶ 1] Nicholas Law appeals from a district court judgment awarding Law and Danielle Whittet joint residential responsibility for their minor child. We reverse and remand, concluding several of the district court’s findings of fact are clearly erroneous and Law should be awarded primary residential responsibility for the parties’ child.

I

[¶ 2] Law and Whittet met in late 2010 and began dating shortly thereafter. Whittet became pregnant, and the child was born in November 2011. A paternity test confirmed that Law was the biological father. Whittet also has two older children.

[¶ 3] In July 2012, Law began this action seeking primary residential responsibility for the child. An interim order granted the parties joint residential responsibility for the child, with the parties having the child on alternating weeks. At the time the interim order was entered, the parties lived in neighboring towns, Law in Washburn , and Whittet in Underwood. A week before the trial, with no notice to Law, Whittet moved to Scranton, which Law and Whittet agreed was a 6½ hour round trip from Washburn.

[¶ 4] At trial, Law presented evidence regarding a September 2012 incident in which Whittet physically assaulted her mother with the three children present. Whittet was arrested and placed in a police vehicle, but she escaped. Whittet ultimately pled guilty to charges of disorderly conduct and escape.

[¶5] Following the trial, the district court issued a memorandum order, findings of fact, conclusions of law, and order for judgment. For all but one of the best interest factors under N.D.C.C. § 14-09-06.2(1), the court found the parties were equal or the factor did not apply. The court found factor (c), the ability of each parent to meet the child’s developmental needs, favored Whittet because she had taken the child to medical appointments. On factor (j), domestic violence, the court found that neither of the parties had engaged in domestic violence. The court ordered that the parties have joint residential responsibility for the child, with each having physical custody of the child on alternating weeks.

[¶ 6] After the district court issued its memorandum order, but before entry of judgment, Law moved to supplement the record and amend the findings of fact. A hearing on the motion was held, and Law presented evidence that, after the trial and entry of the memorandum order, Whittet had been arrested for and pled guilty to disorderly conduct and preventing arrest, and that Whittet was severely intoxicated at the time of the incident and did not know who was watching her children. The district court denied the motion to amend [888]*888the findings of fact on the basis of the new evidence, and judgment was entered awarding the parties joint residential responsibility.

II

[¶ 7] Law argues the district court’s findings of fact on several of the best interest factors, as well as its ultimate finding awarding joint residential responsibility, are clearly erroneous.

[¶ 8] The 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. Vandal v. Leno, 2014 ND 45, ¶ 6, 843 N.W.2d 313; Rustad v. Rustad, 2013 ND 185, ¶ 5, 838 N.W.2d 421. A finding of fact is clearly erroneous if there is no evidence to support it, if it is induced by an erroneous view of the law, or if we are convinced, on the basis of the entire record, that a mistake has been made. Vandal, at ¶ 6; Rustad, at ¶ 5.

[¶ 9] The district court must award primary residential responsibility to the party who will best promote the child’s best interests and welfare. Vandal, 2014 ND 45, ¶ 7; Rustad, 2013 ND 185, ¶ 6, 838 N.W.2d 421. The district court must consider the best interests of the child in determining primary residential responsibility, and must consider all of the relevant best interest factors under N.D.C.C. § 14-09-06.2. Vandal, at ¶ 7. Although the court is not required to make a separate finding on each statutory factor, the court must consider all of the factors and make findings with sufficient specificity to demonstrate the factual basis for its decision. Id.; Rustad, at ¶ 6; 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; rather, specific findings explaining how the statutory factors apply in the case are required. Vandal, at ¶ 7; Rustad, at ¶ 6; Datz, at ¶ 9.

[¶ 10] This case presents a situation similar to Datz: the district court simply ignored the significant evidence that was favorable to Law and detrimental to Whittet. Although the district court is neither required to make a separate finding on each best interest factor nor to address each minute detail presented in the evidence, the court may not wholly ignore and fail to acknowledge or explain significant evidence clearly favoring one party. See Datz, 2013 ND 148, ¶¶ 12-19, 836 N.W.2d 598; see also State v. Nelson, 488 N.W.2d 600, 604 (N.D.1992) (“While credibility of witnesses is normally the province of the trial court, a trial court cannot disregard testimony that is uncon-tradicted and unchallenged where no basis for doing so appears in the record.”). The district court in this case, without explanation, failed to acknowledge or address evidence which clearly indicated several of the best interest factors favored Law.

[¶ 11] For example, factor (b) under N.D.C.C. § 14-09-06.2(1) requires the court to consider the ability of each parent to provide adequate food, clothing, shelter, medical care, and a safe environment. The district court’s finding on this factor, in its entirety, states:

Both parties have provided for the support for the child. Danielle currently does daycare out of her residence. Nicholas is employed as head bartender of the Lewis and Clark saloon working 40 hours per week. In the summer, Nicholas is also employed as the manager of the Big Dipper working a total of 60-80 hours per week between the two jobs. Both parties are equal in this matter.

The record indicates that for more than six years Law had worked full-time as a man[889]*889ager at a bar and during the summers as manager of a seasonal restaurant. Conversely, Whittet’s employment history was at best sporadic, and although the court found at the time of trial she was “[doing] daycare out of her residence,” the record reflects she was only watching one child an average of eight hours per week. Providing daycare for one child an average of eight hours per week does not provide sufficient income for Whittet to provide adequate food, clothing, shelter, and medical care for the child. In reality, the record demonstrated that Whittet lived on public assistance, child support, and occasional financial support from the men she had lived with at various times. The court’s finding that this factor was equal between the parties was clearly erroneous; factor (b) favored Law.

[¶ 12] The court also found that factor (d), which requires the court to consider the sufficiency and stability of each parent’s home environment and the impact of extended family, was equal between the parties. In reaching this conclusion, however, the court failed to acknowledge or address evidence that, in the four years prior to trial, Whittet had ten different residences.

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Cite This Page — Counsel Stack

Bluebook (online)
2014 ND 69, 844 N.W.2d 885, 2014 WL 1356803, 2014 N.D. LEXIS 71, Counsel Stack Legal Research, https://law.counselstack.com/opinion/law-v-whittet-nd-2014.