Schlieve v. Schlieve

2014 ND 107, 846 N.W.2d 733, 2014 WL 2209005, 2014 N.D. LEXIS 107
CourtNorth Dakota Supreme Court
DecidedMay 28, 2014
Docket20130368
StatusPublished
Cited by11 cases

This text of 2014 ND 107 (Schlieve v. Schlieve) 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
Schlieve v. Schlieve, 2014 ND 107, 846 N.W.2d 733, 2014 WL 2209005, 2014 N.D. LEXIS 107 (N.D. 2014).

Opinions

SANDSTROM, Justice.

[¶ 1] Terrance Schlieve, the father of three children, appeals from a divorce judgment awarding primary residential responsibility of the children to Julie Schlieve, the mother. We affirm in part and reverse in part, concluding the district court did not clearly err in awarding primary residential responsibility of the children to the mother, but remand for the district court to add missing statutorily mandated parenting-plan provisions and to [736]*736modify the parenting plan’s religious clause.

I

[¶ 2] Terrance and Julie Schlieve were married in 1992. The parties have three children, born in 1996, 1999, and 2004. The father sells soil enhancements and fertilizer for a company and is the area manager, and the mother is a personal banker and mortgage lender. In September 2012, the father sued for divorce. The mother responded that she did not want a divorce, but if the court granted a divorce, she sought primary responsibility of the couple’s three children. The court entered an interim order, giving the parties joint residential responsibility of the children, alternating on a weekly basis.

[¶ 3] After a trial on the issues of custody, child support, property valuation and distribution, and spousal support, the district court found the parents are not able to peacefully resolve conflicts with the children present. The court also found both parents are good parents but the testimony indicated the mother was more involved in the daily lives of the children until the father sued for divorce. The court found the mother provided the leadership in education and religion and was involved in the children’s medical care, including the provision of a special diet needed for herself and her son, who shares the same disease. The court found the father has been supportive and involved in the children’s activities and he has been a good father.

[¶ 4] A divorce judgment was entered awarding the mother primary residential responsibility of the children.

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

II

[¶ 6] The district court’s award of primary residential responsibility and the terms of the parenting plan are the only provisions of the divorce judgment at issue in this appeal. The father argues the district court’s findings regarding the best interests of the children and ultimate award of residential responsibility to the mother are clearly erroneous.

[¶ 7] Section 14-09-06.2, N.D.C.C., describes factors for evaluation of the best interests and welfare of the child in awarding primary residential responsibility. The best interest factors include:

a. The love, affection, and other emotional ties existing between the parents and child and the ability of each parent to provide the child with nurture, love, affection, and guidance.
b. The ability of each parent to assure that the child receives adequate food, clothing, shelter, medical care, and a safe environment.
c. The child’s developmental needs and the ability of each parent to meet those needs, both in the present and in the future.
d. The sufficiency and stability of each parent’s home environment, the impact of extended family, the length of time the child has lived in each parent’s home, and the desirability of maintaining continuity in the child’s home and community.
e. The willingness and ability of each parent to facilitate and encourage a close and continuing relationship between the other parent and the child.
f. The moral fitness of the parents, as that fitness impacts the child.
g. The mental and physical health of the parents, as that health impacts the child.
[737]*737h. The home, school, and community records of the child and the potential effect of any change.
i. If the court finds by clear and convincing evidence that a child is of sufficient maturity to make a sound judgment, the court may give substantial weight to the preference of the mature child. The court also shall give due consideration to other factors that may have affected the child’s preference, including whether the child’s preference was based on undesirable or improper influences.
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 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 parental rights and responsibilities dispute.

N.D.C.C. § 14-09-6.2(1).

[¶ 8] A court’s award of primary residential responsibility is a finding of fact, which will not be reversed on appeal unless it is clearly erroneous or it is not sufficiently specific to show the factual basis for the decision. See, e.g., Rustad v. Rustad, 2018 ND 185, ¶ 5, 838 N.W.2d 421; Wolt v. Wolt, 2010 ND 26, ¶ 7, 778 N.W.2d 786. “A finding of fact is clearly erroneous if it is induced by an erroneous view of the law, if no evidence exists to support it, or, although there is some evidence to support it, on the entire record, we are left with a definite and firm conviction a mistake has been made.” Doll v. Doll, 2011 ND 24, ¶ 6, 794 N.W.2d 425. “Under the clearly erroneous standard, we do not reweigh the evidence nor reassess the credibility of "witnesses, and we will not retry a custody case or substitute our judgment for a district court’s initial custody decision merely because we might have reached a different result.” Wolt, at ¶7 (quotation marks omitted). The district court has substantial discretion in making a custody determination, but it must consider all of the best-interest factors. Id. at ¶ 9. “Although a separate finding is not required for each statutory factor, the court’s findings must contain sufficient specificity to show the factual basis for the custody decision.” Id.

A

[¶ 9] The father argues the court’s finding the best-interest factors are “for the most part, equal for both parents” is clearly erroneous. In support of this argument, he claims the court erred in not making any specific findings under N.D.C.C. § 14-09-06.2(l)(e), which considers “[t]he willingness and ability of each parent to facilitate and encourage a close and continuing relationship between the other parent and the child.” The father argues this factor weighs in his favor because, among other reasons, on multiple occasions during the mother’s parenting time, the children were not in her care and she failed to contact him so he could watch the children. He also argues that his strong bond with the youngest child tips factor (a), which considers emotional ties between the child and parents, in his favor.

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Cite This Page — Counsel Stack

Bluebook (online)
2014 ND 107, 846 N.W.2d 733, 2014 WL 2209005, 2014 N.D. LEXIS 107, Counsel Stack Legal Research, https://law.counselstack.com/opinion/schlieve-v-schlieve-nd-2014.