State v. Kirkpatrick
2012 ND 229
| N.D. | 2012Background
- Richie Fonder and Bobbi Fonder married in 1996 and have three children; they lived in the Minot, North Dakota area.
- The parties separated in May 2008 and initially shared primary residential responsibility with alternating weekly custodial periods.
- Richie filed for divorce on August 11, 2008; the trial court maintained shared parenting until a final determination.
- A two-day trial occurred in January 2010; both parents admitted past illegal drug use but denied current use.
- On August 11, 2011, the trial court awarded equal primary residential responsibility after applying §14-09-06.2, and denied Richie’s Rule 59(j) motion.
- Richie challenged the decision, arguing the trial court used the post-amendment version of the statute; this appeal followed.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether the court applied the correct version of §14-09-06.2 | Fonder contends the pre-amendment version should apply to a case commenced in 2008. | Fonder acknowledges the court used the post-amendment version but believes findings remain valid. | No abuse; analysis cured by applying appropriate version upon reconsideration. |
| Whether denial of the Rule 59(j) motion was proper | The court erred by applying the wrong statute version and should reconsider. | The court’s ultimate findings support the same outcome even after correction. | No abuse of discretion; Rule 59(j) denied appropriately. |
| Whether equal primary residential responsibility is in the children's best interests | An equal arrangement is not clearly in the children’s best interests and is unsupported by findings. | The findings show both parents can foster a relationship and provide stability; equal arrangement is appropriate. | The record supports equal primary residential responsibility; not clearly erroneous. |
Key Cases Cited
- Doll v. Doll, 2011 ND 24 (ND 2011) (best interests factors guide custody decisions; findings need not map to each factor)
- Sorenson v. Slater, 2010 ND 146 (ND 2010) (apply best interest factors in effect when action commenced)
- Freed v. Freed, 454 N.W.2d 516 (ND 1990) (reiterates analysis framework for custody under §14-09-06.2)
- Peek v. Berning, 2001 ND 34 (ND 2001) (no need for a separate finding for every factor; factors considered collectively)
- P.A. v. A.H.O., 2008 ND 194 (ND 2008) (explicitly supports consideration of parents’ ability to facilitate relationship)