Schumacher v. Schumacher

1999 ND 149, 598 N.W.2d 131, 1999 N.D. LEXIS 164, 1999 WL 549360
North Dakota Supreme Court·Decided July 29, 1999·No. No. 990016·Published·Cited by 23 cases

Opinions

VANDE WALLE, Chief Justice.

[¶ 1] Kurt W. Schumacher appealed from a divorce judgment which distributed property, placed the parties’ minor child in Coreen D. Schumacher’s custody, and ordered Kurt to pay rehabilitative spousal support and child support. We affirm the district court’s custody and child support awards and, because of the lack of evidence, we reverse and remand the award of rehabilitative spousal support for further consideration.

I

[¶ 2] Coreen moved from Glendive, Montana to Minot, North Dakota in 1992. Coreen and Kurt married in May 1992. Immediately prior to the marriage, the parties executed a prenuptial agreement. The prenuptial agreement stated Kurt owned real estate valuing $388,000 and investments in the amount of $115,185. According to Coreen, Kurt would not mar-17 her if she would not sign the agreement. Their daughter, Morgan, was born about one month later.

[134]*134[¶ 3] Kurt has worked as a locomotive engineer with the Burlington Northern Santa Fe Railroad for twenty years. His salary is approximately $42,000 per year and he receives health, dental and vision insurance which covers Morgan through his employer. He owns a 4 bedroom home in Minot.

[¶ 4] Coreen is presently employed as an assistant manager for a gas station in Vaughn, Montana. She makes approximately $12,000 per year, and after 6 months of employment will receive benefits. She resides in a trailer house owned by her mother. During most of the parties’ marriage, Coreen worked full time and her income was used to pay the family’s living expenses. Kurt gave Coreen about $50 every two weeks for groceries.

[¶ 5] The parties separated in August 1994. An interim order issued by the district court allowed Coreen, Morgan and Bryson, Coreen’s son from a previous marriage, to live in the marital home. They lived in the marital home from August 1994 until February 1995. During this time, a neighbor, Jennifer Vang, described Morgan as being shy and thin. She further stated Morgan’s clothes were dirty and she had dark circles under her eyes. Laurie Sveen, Morgan’s daycare provider at this time, also stated Morgan had dark circles under her eyes, but her clothes were always clean and she ate well. Sveen believes Morgan looks healthier since she has been under Kurt’s care. Both Vang and Sveen testified Coreen would leave Morgan and Bryson, aged 9, unattended.

[¶ 6] Coreen moved from the marital home because she believed her being there upset Kurt. She purchased a house in Minot, but lost it to foreclosure. She then moved into an apartment. Two of Co-reen’s neighbors while she resided at the apartment were Jacqueline Johnson and Bonnie Sasse. According to Johnson and Sasse, Morgan was well-kept and fed while in the care of Coreen. Johnson witnessed an incident between Kurt and Coreen when she went with Coreen to get Morgan for visitation. When Coreen and Johnson arrived at Kurt’s home, Kurt’s mother held Morgan refusing to let her go to Coreen. Kurt grabbed Coreen’s arm and put his arm up against her throat choking her.

[¶ 7] In August 1997, Coreen moved to Vaughn, Montana with Bryson and Morgan. Coreen wanted to move back to Montana to attend college. Coreen wants to become a licensed practical nurse and obtain a degree in occupational therapy. Coreen stated she did not attend college in Minot because Kurt would not financially assist her, and his income was too high for her to qualify for a loan or grant.

[¶ 8] Kurt filed for divorce September 23, 1997. Coreen filed an answer and counterclaim seeking a divorce, custody of Morgan, child support and division of the parties’ property and debts. October 23, 1997, the district court issued an order awarding temporary custody of Morgan to Kurt pending final resolution of the case, with reasonable visitation for Coreen. The trial court found that while Kurt has had temporary custody of Morgan, he and his parents have been uncooperative and tried to frustrate visitation by Coreen. Kurt hired a live-in nanny to help care for Morgan and has enrolled her in kindergarten.

[¶ 9] Anne-Kristen Partlow was appointed guardian ad litem. After conducting an investigation, she issued a report recommending custody be awarded to Kurt. In her report, Partlow states there is nothing to substantiate Coreen’s allegations of domestic abuse by Kurt.

[¶ 10] A trial was held June 19, 1998 and continued on September 30, 1998. Both parties presented evidence concerning domestic violence. Coreen and Bryson testified about an incident which took place shortly after the parties’ marriage when she was pregnant with Morgan. Attempting to take the wedding ring from Coreen, Kurt forced Coreen to the ground with his knee in her ribs. He bruised her eye and arms, and tore hair from her head. Kurt also grabbed Bryson by the hair to stop [135]*135him from calling 911. Coleen Shipp testified she saw the effects of this abuse. Coreen testified about another incident in which Kurt dragged her down a hallway after a pushing match. Coreen further testified Kurt came home intoxicated one evening and literally Mcked her out of the bed.

[¶ 11] Kurt also presented evidence of domestic violence by Coreen. He testified that in the fall of 1993, Coreen hit him when she became upset. He called the police, but no arrests were made. Kurt also stated he has slapped Coreen a couple of times in self-defense. Kurt presented a letter written by Coreen, before the parties were married, in which she apologizes for slapping him.

[¶ 12] Kurt submitted a joint property and debt listing to the district court which lists the value of his real estate at $305,000 and his investments at $56,958. There is great disparity between the valuation of Kurt’s assets at the time of trial compared with the prenuptial valuation in 1992. Neither Kurt or Coreen presented any evidence concerning the amount of income Kurt’s investments produce.

[¶ 13] The district court awarded custody of Morgan to Coreen. The judgment ordered Kurt to pay child support in the amount of $701 per month and $500 per month in rehabilitative spousal support for 120 months or until Coreen remarried.

II

[¶ 14] Kurt argues the district court’s custody determination is erroneous because the Court incorrectly analyzed the evidence concerning domestic violence.

[¶ 15] This Court will not disturb a child custody determination unless it is clearly erroneous. Kasprowicz v. Kasprowicz, 1998 ND 68, ¶ 11, 575 N.W.2d 921. A finding of fact is clearly erroneous if it is not supported by the evidence, if it is induced by an erroneous view of the law, or if the district court is left with the definite and firm conviction that a mistake has been made. Id.

[¶ 16] In an initial custody determination, a trial court must decide custody in the best interests and welfare of the child. Reeves v. Chepulis, 1999 ND 63, ¶ 10, 591 N.W.2d 791. In doing so, the trial court must consider all factors under the best interests statute, section 14-09-06.2(l)(a)-(m), N.D.C.C. Id. A separate finding is not required for each statutory factor, but “the court’s findings should be stated with sufficient specificity so that we can understand the factual basis for its decision.” Id. (quoting Severson v. Hansen, 529 N.W.2d 167, 168 (N.D.1995)).

[¶ 17] N.D.C.C. § 14-09-06.2(l)(j) guides trial court’s in their evaluation of domestic violence evidence in a custody determination. Id.

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Schumacher v. Schumacher, 1999 ND 149, 598 N.W.2d 131, 1999 N.D. LEXIS 164, 1999 WL 549360 (N.D. 1999).

1999 ND 149 (Schumacher v. Schumacher) — published by Counsel Stack Legal Research, free access to 12M+ legal documents.

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