Northern Excavating v. Sisters of Mary of the Presentation
2012 ND 78
| N.D. | 2012Background
- Morris and Moller were cohabiting but not married, separating in 2009 with two joint children, C.M. and J.M.; A.G. from Moller’s prior relationship resided with them.
- Moller sought primary residential responsibility; Morris sought primary or shared residence with visitation.
- A parenting investigator was appointed after trial preparations.
- Trial in July 2010 addressed best interests under N.D.C.C. § 14-09-06.2(1); witnesses included pediatrician and investigator.
- District court awarded Moller primary residential responsibility and Morris reasonable visitation; court deferred to investigator’s conclusions.
- Morris appealed the district court’s factual findings and weighing of best interests factors.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Domestic violence presumption under factor j applying drug use | Morris—drug use during pregnancy constitutes domestic violence triggering presumption | Moller—no domestic violence finding; issue not raised below | Issue not preserved; not considered on appeal |
| Interpretation of best interests factors c, e, f | Morris favors factors c/e/f | Court properly weighed factors with record support | Court's factor findings not clearly erroneous; sustained decision |
| Bias of the parenting investigator | Investigator biased against Morris; report should be disregarded | Court relied on its own analysis despite investigator’s conclusions | Court did not clearly err; weight given to investigator’s report affirmed |
| Use of parenting investigator’s recommendation | Court delegated decision to investigator | Court independently weighed factors | Court’s findings supported; not clearly erroneous despite alignment with investigator |
Key Cases Cited
- Doll v. Doll, 2011 ND 24 (North Dakota Supreme Court 2011) (standard for reviewing custody factual findings; weight of factors remains with court)
- Miller v. Mees, 2011 ND 166 (North Dakota Supreme Court 2011) (clearly erroneous standard for custody awards; not reweighing evidence on appeal)
- Sailer v. Sailer, 2009 ND 73 (North Dakota Supreme Court 2009) (court may not delegate custody decision; deference to trial judge’s credibility assessments)
- Hanson v. Hanson, 2005 ND 82 (North Dakota Supreme Court 2005) (custody decisions accord deference to trial court credibility)