PA v. Aho

2008 ND 194, 757 N.W.2d 58, 2008 WL 4694225
CourtNorth Dakota Supreme Court
DecidedOctober 27, 2008
Docket20080049
StatusPublished

This text of 2008 ND 194 (PA v. Aho) 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
PA v. Aho, 2008 ND 194, 757 N.W.2d 58, 2008 WL 4694225 (N.D. 2008).

Opinion

757 N.W.2d 58 (2008)
2008 ND 194

P.A., Plaintiff, Appellee and Cross-Appellant
v.
A.H.O., Defendant, Appellant and Cross-Appellee.

No. 20080049.

Supreme Court of North Dakota.

October 27, 2008.

*59 Tom P. Slorby, Slorby Law Office, Minot, ND, for plaintiff, appellee and cross-appellant.

H. Malcolm Pippin, Nilles, Ilvedson, Plambeck & Selbo, Ltd., Williston, ND, for defendant, appellant and cross-appellee.

*60 VANDE WALLE, Chief Justice.

[¶ 1] A.H.O. appealed from a district court judgment granting A.H.O. and P.A. joint custody of their son, J.O. A.H.O. argues that she should have been awarded primary physical custody. P.A. cross-appeals, asserting that the district court did not err in awarding joint custody, but if it was error, he should have been given primary physical custody. We affirm, holding that the district court was not clearly erroneous in awarding joint custody.

I.

[¶ 2] Our review of the record reveals the following facts: J.O. was born in August 2002. His parents, A.H.O. and P.A., were never married, but they lived together in Minot at the time of J.O.'s birth, where they remained until they terminated their relationship in August 2003. Over the next few years, A.H.O. and P.A. embarked upon different paths which had different effects upon J.O.

[¶ 3] After her break-up with P.A., A.H.O. attended the University of North Dakota in Grand Forks. Approximately two years later, but before obtaining her bachelor's degree, A.H.O. began taking courses at a culinary school in Chicago, and graduated with an associate's degree in December of 2006. A.H.O. had previously obtained a high school diploma.

[¶ 4] Meanwhile, P.A. began his own educational pursuits. P.A. had previously dropped out of high school, obtained his G.E.D., and took classes at Minot State University and Bismarck State College before withdrawing. After his relationship with A.H.O. ended, P.A. made three failed attempts at a paramedic program, once withdrawing voluntarily, and twice being expelled for "clinical absenteeism" and "violat[ing] the policy related to academic dishonesty." While not completing an educational program as a paramedic, P.A. did obtain certification as an EMT, and gained employment with the Minot Community Ambulance Service. A typical work schedule for P.A. is 56 hours per week, including some shifts which last for 24 hours. P.A. may also be on-call for 16 additional hours per week. P.A.'s employer testified that the company was considering cutting back the length of work shifts. P.A. makes approximately $28,000 per year at his job.

[¶ 5] Between August 2003 and May 2007, when this litigation began, J.O. moved from family member to family member, spending time in various cities. From approximately August 2003 to November 2003, J.O. spent time with A.H.O. in Grand Forks, as well as time with P.A. in Minot. P.A. and A.H.O. disagree on who J.O. actually lived with during this time period. Each party insists that J.O. resided with them. However, they each concede that J.O. at least spent time with each parent, in their respective cities, over the course of these few months. In November of 2003, J.O. went to stay with A.H.O.'s mother in Williston, and was there until April of 2004, when J.O. returned to Minot to stay with P.A. That fall, J.O. again returned to Williston to stay with his grandmother for the duration of the school year. A.H.O. joined J.O. in Williston in the summer of 2005, before J.O. went back to Minot to stay with P.A. and his parents. P.A.'s parents have helped take care of J.O. on many occasions, particularly when P.A. works a 24-hour shift. During this entire period, there was no custody order in place regarding J.O.

[¶ 6] In May of 2007, P.A. filed a petition for an interim order granting him temporary custody of J.O., professing a concern that A.H.O., having recently completed her degree in Chicago, would seek to take J.O. back to Illinois with her. After receiving P.A.'s complaint, A.H.O. returned *61 to Minot. Upon her return, A.H.O. began working as a server in a local restaurant, where her schedule has been described as "flexible" and "accommodating." A.H.O. earns approximately $17,000 per year at this job. A.H.O. began volunteering at J.O.'s school, including as a room parent for school functions. A.H.O. moved into a house three blocks from P.A., and both parties have, on occasion, accommodated the other's schedule to take care of J.O. The parties' families have also been flexible when allowing J.O. to attend the other family's events, and A.H.O.'s mother testified that P.A. would be welcome in her home.

[¶ 7] However, there have also been instances of conflict between P.A. and A.H.O. in the past. At a birthday party for J.O. at P.A.'s parents' house, A.H.O. was not allowed to enter the building, but had to remain on the porch to give J.O. his birthday gift. P.A.'s father has previously stated that A.H.O. was not welcome in his home, and P.A.'s parents allegedly became upset with P.A.'s sister for having lunch with A.H.O. P.A. has accused A.H.O. of hiding Halloween activities from him. There was also testimony at trial regarding hostilities between A.H.O., P.A., and P.A.'s new girlfriend, M.T., including vocal arguments between A.H.O. and M.T. in front of J.O. In addition, P.A. alleged that A.H.O. has continued to pursue a relationship with him while he has dated M.T., although he admitted to having sexual intercourse with A.H.O. and sending her romantically-charged e-mails since he has been involved with M.T.

[¶ 8] In July of 2007 the district court entered an interim order awarding the parties joint custody on a weekly alternating basis, which the court made permanent in a December 2007 order. Notwithstanding the conflicts between the parties, P.A. and A.H.O. have jointly cared for J.O. in accordance with the orders of the district court, which noted in its December 2007 order that, "The most secure and permanent time in [J.O.]'s life has occurred since this litigation started, and since the parties started to share equal time with him." Furthermore, both parties believe the other should continue to play an important role in J.O.'s life. However, neither party sought joint custody in this matter.

II.

[¶ 9] A custody award is a finding of fact which will not be set aside unless clearly erroneous, that is, if it is induced by an erroneous view of the law, if no evidence exists to support the finding, or if the reviewing court, on the entire evidence, has a definite and firm conviction the trial court made a mistake. Peek v. Berning, 2001 ND 34, ¶ 4, 622 N.W.2d 186. Custody will be awarded to the parent who will, in the opinion of the judge, promote the best interests of the child. N.D.C.C. § 14-09-06.1. The best interests and welfare of the child will be determined by the court's consideration of several factors:

a. The love, affection, and other emotional ties existing between the parents and the 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.

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2008 ND 194 (North Dakota Supreme Court, 2008)

Cite This Page — Counsel Stack

Bluebook (online)
2008 ND 194, 757 N.W.2d 58, 2008 WL 4694225, Counsel Stack Legal Research, https://law.counselstack.com/opinion/pa-v-aho-nd-2008.