Fonder v. Fonder
823 N.W.2d 504
| N.D. | 2012Background
- Richie Fonder and Bobbi Fonder, married in 1996, have three children and lived in the Minot, North Dakota area.
- They separated in May 2008 and initially shared primary residential responsibility, with children alternating weeks.
- Richie filed for divorce on August 11, 2008, seeking primary residential responsibility; an interim order continued shared parenting.
- Richie remained in the marital home; Bobbi moved to shelters and with relatives, later living with her boyfriend near Minot.
- A two-day trial occurred in January 2010, with both acknowledging past drug use but denying current use.
- The court’s August 11, 2011 order found the best-interest factors weighed equally and awarded equal primary residential responsibility; it acknowledged an error in applying the post-amendment statute but concluded the outcome remained the same on remand; a Rule 59(j) motion was denied; the judgment was upheld on appeal; the court noted the lengthy 18-month delay between trial and judgment.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether the trial court applied the correct version of §14-09-06.2. | Fonder argues pre-amendment factors apply; post-amendment usage was improper. | Fonder argues the amendments should control; court can consider all relevant factors. | No abuse; remand cured by applying correct version. |
| Whether equal primary residential responsibility was in the children's best interests. | Equal arrangement not in best interests due to lack of clear justification. | Record shows mutual willingness to facilitate a relationship and stability. | Not clearly erroneous; findings support equal responsibility. |
| Whether the court’s Rule 59(j) denial was appropriate given the amendment issue. | Denial negates need to reconsider under correct law. | Court reconsidered; findings remained consistent with correct statute. | No abuse of discretion; denial affirmed. |
Key Cases Cited
- Doll v. Doll, 2011 ND 24 (ND 2011) (best-interests framework; explicit findings need not be per-factor)
- Sorenson v. Slater, 2010 ND 146 (ND 2010) (use of factors in effect when action commenced dispositive)
- Freed v. Freed, 454 N.W.2d 516 (ND 1990) (scope of best-interests factors; continuity and stability)
- Peek v. Beming, 2001 ND 34 (ND 2001) (no need for a separate finding for each factor; overall findings suffice)
- P.A. v. A.H.O., 2008 ND 194 (ND 2008) (equal custody affirmed where record shows mutual parental cooperation)