905 N.W.2d 772
N.D.2018Background
- Brent and Jeanna Thompson divorced after a long marriage; they have three minor children (ages ~17, 14, and ~13). Brent sought primary residential responsibility for all children; children each expressed differing preferences.
- After separation two children were living primarily with Jeanna (one with Brent; one traveled between homes); district court awarded split residential responsibility (siblings in different households) and reserved a parenting-time schedule pending family counseling.
- The district court found various N.D.C.C. § 14-09-06.2 best-interest factors to favor split residential responsibility, giving substantial weight to the children’s preferences as mature decisions.
- The court also awarded Jeanna rehabilitative spousal support: $1,000/month for four years, after dividing marital property (Brent received ~60% of net marital estate valued at $586,817).
- Brent appealed, arguing (1) insufficient findings on several custody factors (ability to provide necessities; facilitation of visitation; home/school stability; weight given to children’s preferences) and (2) the spousal-support award failed to consider his ability to pay.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Split residential responsibility — factor (b) (ability to provide necessities) | Brent: No evidence supporting district court’s slight preference for Jeanna on this factor. | Jeanna: Court noted Brent lived in marital home and did not provide interim spousal support while Jeanna and two children lived in poorer housing. | Affirmed — district court’s finding supported by evidence. |
| Factor (e) (willingness to facilitate relationship) | Brent: Court ignored allegations of parental alienation and testimony of disparaging comments by Jeanna. | Jeanna: Neither parent demonstrated willingness to facilitate visitation; evidence showed little effort by either. | Affirmed — finding that factor favored neither party is supported by record. |
| Factor (h) (home, school, community records; effect of change) | Brent: Court failed to consider Jeanna’s failure to enroll two children for 2016–17 school year. | Jeanna: Children have historically been together in Harvey school district; continuity favors keeping them there. | Affirmed — evidence supported slight preference for Jeanna and preserving school continuity. |
| Weight given to children’s preferences (factor (i)) | Brent: Court over-weighted preferences and failed to account for improper influences. | Jeanna: Children (ages ~17, 14, ~13) were found sufficiently mature; reasons for preferences were probative. | Affirmed — trial court’s credibility and weighing of mature children’s preferences not clearly erroneous. |
| Parenting-time schedule reservation | Brent: (not raised on appeal) Concern that indefinite reservation may prevent implementation of parenting schedule. | Jeanna: Family counseling appropriate first step given tumultuous relationship. | Court cautioned: reserving schedule may be acceptable here but future reservations should include a reasonable time frame. |
| Spousal support — $1,000/month for 4 years | Brent: Court considered only income disparity and life positions, failing to analyze his ability to pay. | Jeanna: Needs support to equalize economic burdens; lower earning capacity and less income-producing property justify rehabilitative support. | Affirmed — district court made Ruff-Fischer findings and implicit consideration of Brent’s ability to pay; award not clearly erroneous. |
Key Cases Cited
- BeauLac v. BeauLac, 649 N.W.2d 210 (N.D. 2002) (split residential responsibility not prohibited and permitted in appropriate cases)
- Stoppler v. Stoppler, 633 N.W.2d 142 (N.D. 2001) (trial court credibility determinations deserve deference in custody disputes)
- Dronen v. Dronen, 764 N.W.2d 675 (N.D. 2009) (appellate court will not substitute its judgment for district court where two fit parents present)
- Marsden v. Koop, 789 N.W.2d 531 (N.D. 2010) (factors courts consider when deciding whether to split custody)
- Jelsing v. Peterson, 729 N.W.2d 157 (N.D. 2007) (standard of review for child custody findings)
- Overland v. Overland, 744 N.W.2d 67 (N.D. 2008) (spousal support must consider need and supporting spouse’s ability to pay; remand if record lacks such evidence)
- Pearson v. Pearson, 771 N.W.2d 288 (N.D. 2009) (district court must consider Ruff-Fischer factors for spousal support)
- Parisien v. Parisien, 779 N.W.2d 130 (N.D. 2010) (district court need not make findings on every Ruff-Fischer factor if rationale is discernible)
- Williams v. Williams, 863 N.W.2d 508 (N.D. 2015) (purpose and definition of rehabilitative spousal support)