Pember v. Shapiro

2011 ND 31, 794 N.W.2d 435, 2011 N.D. LEXIS 31, 2011 WL 386868
North Dakota Supreme Court·Decided February 8, 2011·No. No. 20100149·Published·Cited by 15 cases

Opinion

SANDSTROM, Justice.

[¶ 1] Dale Pember appeals the district court judgment awarding custody of the [439] parties’ minor children to Lauren Shapiro and establishing his child support obligation.1 Shapiro cross-appeals, claiming the district court erred as a matter of law in the division of assets and debts of the parties. We affirm the district court’s custody award and order granting Shapiro’s relocation request, deny Shapiro’s cross-appeal, and reverse and remand to the district court to recalculate Pember’s child support obligation.

I

[¶ 2] Pember sued for divorce from Shapiro in September 2008. The parties went before the district court to decide the issues of physical and legal custody of their children, spousal support, child support, and division of assets. Testimony was heard from both parties, as well as other witnesses, and other pieces of evidence were received by the court.

[¶ 3] Pember and Shapiro testified they began dating in 1997 while both were living in Kansas. Shapiro was employed as a college professor, and Pember worked at various computer programming jobs. Approximately one year after they began dating, Shapiro became pregnant and the parties married shortly thereafter.

[¶ 4] Shapiro and Pember met with a lawyer to sign a premarital agreement on the morning of their wedding. According to Shapiro, she sought a lawyer to prepare the agreement at the urging of her mother. Pember testified the execution of the agreement took place entirely at the lawyer’s office, and the agreement was not revised or altered in any way. Pember stated he was not familiar with the agreement, but was under the impression that the parties were keeping sole ownership of their premarital possessions. He was not advised to seek independent legal advice and did not do so.

[¶ 5] While they were married, the parties had two more children and moved from Emporia to Topeka, Kansas. In 2007, the parties moved with their three children to Fargo, primarily, according to the testimony of both parties, so Pember could take a job at a local college. Neither party had any previous family connection to Fargo or North Dakota. Pember began work immediately at his new job. Shapiro testified she attempted but was unable to find permanent work within her field, although she did earn a second master’s degree during this time.

[¶ 6] The marriage became strained in 2008, and Pember sued for divorce at the end of September. A judicial referee awarded interim joint physical and legal custody of the three children during the pendency of the proceedings.

[¶ 7] Following trial, the district court awarded sole physical custody of the children to Shapiro. Pember retained joint legal custody with Shapiro. He was granted extended visitation as well as monthly visitation, certain holidays, and weekly communication with the children. The court also ordered Pember to pay $2,080 per month in child support. In dividing the parties’ assets, the district court refused to enforce the premarital agreement, finding Pember’s execution of the document “was not knowing and voluntary.” The court divided the assets and debts of the parties on the basis of the testimony and evidence at trial. Shapiro was awarded 62% of the marital estate and Pember was awarded 38%, which the district court [440] explained was “justified because Lauren brought an increased amount of property into the marriage.” The court amended its judgment in May 2010, eliminating all spousal support and reducing Pember’s child support obligation to $1,741. Pem-ber appeals from this amended judgment.

[¶ 8] On appeal, Pember argues the court’s award of sole physical custody of the parties’ children to Shapiro was clearly erroneous, along with the order allowing Shapiro to relocate with the children. He also contends the court erred in calculating his child support obligation. Shapiro cross-appeals, arguing the premarital agreement should have been enforced. Alternatively, she contends the court erred in its equitable division of the marital estate.

[¶ 9] The district court had jurisdiction under N.D. Const, art. VI, § 8, and N.D.C.C. § 27-05-06. Pember’s appeal was timely under N.D.R.App.P. 4(a). This Court has jurisdiction under N.D. Const, art. VI, §§ 2 and 6, and N.D.C.C. § 28-27-01.

II

[¶ 10] Pember argues the district court’s decision to award Shapiro sole physical custody of the parties’ children was clearly erroneous.

[¶ 11] A district court’s custody award is a finding of fact that will not be reversed on appeal unless it is clearly erroneous. Edwards v. Edwards, 2010 ND 2, ¶ 7, 777 N.W.2d 606. A finding of fact is clearly erroneous if it is induced by an erroneous view of the law, if there is no evidence to support it, or if, on the entire evidence, we are left with a definite and firm conviction that a mistake has been made. Id. Questions of law are subject to full review. Slorby v. Slorby, 2009 ND 11, ¶4, 760 N.W.2d 89.

[¶ 12] In an initial custody decision, the district court must award custody of the children to the parent who will better promote their best interests and welfare. Marsden v. Koop, 2010 ND 196, ¶ 9, 789 N.W.2d 531. The district court must consider the best interest factors of N.D.C.C. § 14-09-06.2(1) in deciding what is in the best interests of the child. Frueh v. Frueh, 2009 ND 155, ¶ 10, 771 N.W.2d 593. These factors include:

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 records 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....
k. 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 [441] 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.

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

Pember v. Shapiro, 2011 ND 31, 794 N.W.2d 435, 2011 N.D. LEXIS 31, 2011 WL 386868 (N.D. 2011).

2011 ND 31 (Pember v. Shapiro) — published by Counsel Stack Legal Research, free access to 12M+ legal documents.

Related

Sayler v. Sayler
2023 ND 156 (North Dakota Supreme Court, 2023)
Gooss v. Gooss
2020 ND 233 (North Dakota Supreme Court, 2020)
Tschider v. Tschider
2019 ND 112 (North Dakota Supreme Court, 2019)
Raap v. Lenton
2016 ND 195 (North Dakota Supreme Court, 2016)
Langwald v. Langwald
2016 ND 81 (North Dakota Supreme Court, 2016)
Schwalk v. Abfalter
2014 ND 13 (North Dakota Supreme Court, 2014)
Seay v. Seay
2012 ND 179 (North Dakota Supreme Court, 2012)
Forsman v. Blues, Brews and Bar-B-Ques, Inc.
2012 ND 184 (North Dakota Supreme Court, 2012)
State v. Nickel
2011 ND 200 (North Dakota Supreme Court, 2011)
State v. Baatz
2011 ND 195 (North Dakota Supreme Court, 2011)
Brigham Oil & Gas, L.P. v. Lario Oil & Gas Co.
2011 ND 154 (North Dakota Supreme Court, 2011)
State v. Gefroh
2011 ND 153 (North Dakota Supreme Court, 2011)
Krueger v. Krueger
2011 ND 134 (North Dakota Supreme Court, 2011)
State v. Gonzalez
2011 ND 143 (North Dakota Supreme Court, 2011)