McDowell v. McDowell

876 ¶ O’Neill, 200, 8,

dy); O’Neill v. ND dren. We hold Shawn Damron failed to (allegations demonstrating proof N.W.2d 855 meet his burden justify of a change custody § a custodial endan environment which under N.D.C.C. 14- 06.6(5)(b). ger physical children’s or mental health There is no evidence to sup- 09— port are raise a court’s prima sufficient to facie case modification of custo- Quarne, dy, and we custody); therefore conclude the сhange of ¶ 188, (child modification of custody is N.W.2d 256 errone- abuse conclusion, Because of ous. our we do not constitutes an environment which endan address Valerie argument Damron’s gers physical or health the child’s mental custody modification of on is, law, based her sexu- and of as a matter a material al orientation violates federal and state change warranting of circumstances a Kraemer, constitutions. See Kaler change of under 14- N.D.C.C. ND 603 N.W.2d 698 Holtz, (declining to 09-06.6(5)); Holtz v. necessary consider issues not to determi- 17, 595 1 (endangerment of appeal). nation child’s im physical or emotional health or pairment development of child’s emotional Both Shawn and Valerie Damron change is material of circumstances war seek fees for these proceedings. ranting change custody). party We conclude neither is entitled to attorney fees.

[¶ § 14-09- 12] Under N.D.C.C. 15] We [¶ reverse the amended 06.6(5)(b), judg- parent’s we a custodial hold ho ment. grounds mosexual is not household

modifying custody within years two a WALLE, GERARD [¶ W. 16] VANDE prior custody order the absence evi C.J., MARING, MARY MUEHLEN endangers po dence that or environment KAPSNER, JJ„ CAROL RONNING tentially physical endangers children’s concur. impairs or or emotional health their emo development. tional result, I concur DALE V. SANDSTROM, J. Here, trial court found Val- erie a parent, Damron was fit but effec-

tively pre- ruled Jacobson a created

sumption living of harm to children ‍​‌​​​​‌‌‌‌‌​‌‌​‌​‌‌​​‌​‌​‌‌​‌​‌‌​‌‌‌‌​​‌‌​​​​​​​‍household, lesbian and Shawn Damron 2003 ND 174 presented pres- no evidence the children’s McDOWELL, A. n/k/a ent may endanger phys- environment their Martinson, A. Plaintiff ical or impair emotional health or their Appellee, development. emotional There is evidence doing children are in Valerie well custody. Damron’s Shawn Damron does McDOWELL, T. Defendant not dispute doing the oldest child is well Appellant. physically, academically, socially, No. 20030079. he any impact has not noticed adverse Supreme Court of North Dakota. the youngest Although child. Shawn Nov. 2003. Damron testified Valerie homо- Damron’s relationship sexual wrong “sets the Rehearing moral Denied Dec. children,” my presented character for he

no relationship evidence that the was caus-

ing potential actual or harm to the chil- Larson, K. Pringle

Carol & Herigstad, Minot, P.C., plaintiff appellee. Rau, Bosard, S. Robert McCutcheon & Rau, Ltd., Minot, for appel- defendant and lant. SANDSTROM,

DALE V. Justice. McDowell is appealing a Northwest Judicial judg- District Court granting ment Sharon McDowell son awarding Jefferey visitation rights and ordering him to and аttorney fees. This followed our remand in McDo- McDowell, well v. I”). (“McDowell conclude the trial court’s child erroneous as a erred calculation is law, and we reverse the child custody to Sharon McDowell matter of

in granting recompu- He award and remand for to extend his visitation. failing and in sup- tation in accordance with the child improperly calculated argues thе court port guidelines, again at- should ‍​‌​​​​‌‌‌‌‌​‌‌​‌​‌‌​​‌​‌​‌‌​‌​‌‌​‌‌‌‌​​‌‌​​​​​​​‍the court improperly awarded custody. af- grant McDowell. We torney fees to Sharon firm, district court’s deci- concluding the Id. at 34. clearly erroneous and the sion was [¶ 4] On the district discretion. court did not abuse its to McDo- again custody awarded Sharon granted Jefferey well and McDowell visita- I tion, him ordering pay to underlying litiga- The facts [¶ 2] 1999, 1, beginning July with incrеases on in McDowell extensively tion are discussed 1, January January 2001. The only as will be referred to here I and McDowell at- trial court awarded Sharon ap- necessary to understand the issues on Jefferey torney fees and costs. McDowell peal. appealed. judgment, the dis- original In the [¶ 3] jurisdiction The trial court had parties the a divorce granted trict court Const, VI, 8,§ under N.D. аrt. property, awarding marital and divided the N.D.C.C. 27-05-06. The property with a net val- McDowell 4(a). This timely N.D.R.App.P. under $34,872 awarding Jefferey ue of Const, jurisdiction has under N.D. Court a net value of property McDowell VI, 6, §§ §§ 2 and and N.D.C.C. 28- art. $28,337. Jefferey McDo- The court denied 28-27-02. 27-01 and pay request that Sharon McDowell well’s support. The court further spousal II custody McDowell of awarded Sharon Jefferey argues the McDowell son, subject Jefferey to McDowell’s their custody of awarding district court erred visitation, ordered right of the son to Sharon McDowell. per month in child McDowell to $250 July to 1999. The support, retroactive A Jefferey McDowell’s re- court also denied attorney We re- quest partial fees. prepared by of fact findings remanded, stating: versed and findings not the McDowell’s werе analysis of the custo- The trial court’s court. of the district confusing, leaving dy cryptic issue is the factual basis for us unable to discern its the court affixes [¶ 8] “When custody to its award of Sharon. though findings, to the even signature the court erred therefore conclude counsel, the find they become drafted custody of failing explain grant its court, adequately they of the and if ings Sharon, remand for rеconsidera- and we decision,” explain the basis of the court’s findings preparation for the tion and upheld. findings will be Schmidkunz sufficiently explain its deci- (N.D. Schmidkunz, 529 858 v. N.W.2d sion. Hendrickson, 1995); Hendrickson (N.D.1996). ‘When to the find- judge signature affixes his they findings of fact become the of the mgs Disposition parents C. to provide Vetter, food, clothing, child with court.” Vetter and the like. (N.D.1978). This fact favors Sharon. When returned from California to Dako- North signing findings pre- Before ta, $21,000 Jefferey withdrew over from pared by attorney, Sharon McDowell’s marital assets to himself. Dur- court reviewed and district revised them. interim, ing provide did not fact, findings having We conclude the son], financial -with the [his adequately explained the basis for the exception of purchasing a few items of decision, were the personal [him], property fоr and limit- court and were not erroneous. ed amount expenses. of medical Jeffer-

ey’s provide support failure to is certain- B ly noted. are not persuaded by [¶ 13] We Jeffer-

district court erred in awarding custody ey argument. McDowell’s Parents should McDowell, son to Sharon not need a court they order to know are claiming incorrectly obligated the court found that to their children. Sec- (m) (c), (d), 14-09-08, N.D.C.C., § factors of 14- tion N.D.C.C. establishes the 09-06.2(1) legal duty parents of making favored her. an ini- to their chil- determination, objection dren. We conclude custody tial his is with- the trial court (c), (d), (f), (m) out merit. found that factors 14-09-06.2(1) § N.D.C.C. favored Sharon McDowell also ar parties McDowell and that the equal were gues improperly found he the remaining factors. intended to remain Californiа. The dis trict court found: “ ‘A trial custody court’s D. Length time the child has lived determination is a finding of fact that will satisfactory in a By environment. Jef- not be set aside on unless it is ” consent, ferey’s has been living [his son] clearly erroneous.’ Stoppler Stoppler, with his May mother since of 1999. Jef- 148, 7, 2001 ND (quoting 633 N.W.2d 142 ferey left Sharon and [his son] ¶63, Chepulis, Reeves v. 1999 ND knowing moved to California that Shar- 791). finding “A clearly of fact is on would nоt him joining unless the if only erroneous it is induced an erro problems marital were resolved. law, neous view of the if there is no evi McDowell claims he had it, if, dence to or upon review of upon returned to North Dakota hearing of evidence, the entire we are left awith the divorce and had a return airline ticket definite and firm conviction mistake has purchased weeks before he went to Cali- Schmidt, been made.” Schmidt v. fornia. There is evidence to 196; 660 N.W.2d see also trial, contrary trial court’s finding. At Shields, Shields v. Sharon McDowell testified that she told it McDowell would not work for argues, her to move to California their mar- the court improperly found he was not riage the condition it in at the time. son, supporting his because he claims he clearly She testified that she told she was not aware of this obligation. The going their son would not be to Cali- district court found: fornia with him. McDowell testi- generally belong with their mother. years” he went two weeks before fied that doctrine has California, possi- tender-years The been re- couple discussed to move. in North Dakota. might pealed ‍​‌​​​​‌‌‌‌‌​‌‌​‌​‌‌​​‌​‌​‌‌​‌​‌‌​‌‌‌‌​​‌‌​​​​​​​‍not want See N.D.C.C. bility that she 1973); (repealed § Leppert 30-10-06 present рarties two 16] When [¶ (N.D.1994). 287, 292 Leppert, 519 N.W.2d testimony on material issues conflicting public policy of state is that And the fact, not redetermine the we will custody gender there is to be no bias upon testimony. findings based regardless age decisions of the of the child. v. Pe Cooperative Credit Union Williston (“Between N.D.C.C. 14-09-06.1 (N.D.1985). sek, father, or mother and whether natural trial, the trial court is ‘the “In a bench adoptive, presumption there is no as to and we credibility issues determiner promote the best interests who will better trial court on its second-guess the do not child.”). of the and welfare not credibility determinations.’ We do The district court’s decision credibility, or reassess reweigh evidence award to Sharon McDowell was findings of fact nor do we reexamine factors, many based on and we аre not conflicting testimony. We upon made convinced that its of fact are regard op- to the trial court’s give due clearly erroneous or that its decision was credibility portunity to assess improper. witnesses, the court’s choice be- permissible views of the evi- tween two conclude the district court’s erroneous.” dence is custody to awarding of clearly erroneous. was Co., 2002 ND Piatz v. Austin Mut. Ins. ¶

115, 24, Estate (quoting 646 N.W.2d 681 33, ¶10, Howser, 2002 ND Ill omitted)). (citations conclude the We argues McDowell [¶22] in supported under this factor are failing the district court erred in to consid clearly and are not erroneous. the record adequately explain or its decision on er m, “any other fac- Under factor A trial court’s decision on visita [¶ 17] visitation. tors,” found finding the district court Sharon a of fact thаt will not be tion is primary clearly was the caretaker on unless it is erro McDowell reversed 47, Nefzger Nefzger, Fettig, the child. See Lukenbill v. 2001 ND neous. ¶ 119, 18, 595 N.W.2d 583. 623 N.W.2d 7. that argues McDowell [¶ 18] We discussed the district caregiver reliance on the district court’s I, stat- on visitation in decision in this case because status is erroneous ing: preschooler a an longer

their son is no but Jefferey visi- granted The trial court studеnt, and upper elementary class school every other tation with [their son] further, the providing that he was the one while he lives the same weekend daily and care for the child on a attention community as and visitation three to but one month of the basis all major alternating holidays. years prior to this action. five awarded months of sum- was also two Al- [their son]. to be mer visitation with Jefferey McDowell seems “weekly Jefferey wanted visita- though the district court arguing, part, doctrine,” year, the he has during tion” the rest of misapplied “tender-years the the visitation awarded not convinced us holding that children “of tender doctrine clearly the trial court in this case is The sup amount of child port In erroneous. its reconsideration of is set from the date of the motion tо however, modify, good absent a reason for not custody, doing the Geinert, so. Geinert v. adjust 2002 ND visitation. Geinert, In we held the trial court retained discretion to set some later effective date if its doing reasons for given [¶ 24] The district court was case, apparent. so were Id. In this we option adjust visitation on but conclude good there are sufficient reasons required was not to do so. conclude implementing support child to be set at visitation award is not errone- an earlier effective date. ous. case, lengthy there was a

period during which the motion for child IV pending. Sharon McDowell brought an action for divorce against Jef- ferey McDowell in June seeking rea- calculating district court erred in child sonable child complaint. support. sоught parte She also an ex interim order requesting begin June A order, 1999. In the parte ex interim 26] He district court ordered that child calculating support, erred in because according ‍​‌​​​​‌‌‌‌‌​‌‌​‌​‌‌​​‌​‌​‌‌​‌​‌‌​‌‌‌‌​​‌‌​​​​​​​‍calculated to the North Dakota support, predate increases in which Guidelines, Support Child beginning June McDowell’s motion for support, amended 1, 1999, in an amount to be established at basis, steр were ordered on a post- hearing. In August trial evidence was used to determine the McDowell was ordered to sum amount support. monthly support, for child beginning $250 July 2000. This order was later amend- a reviewing [¶ 27] When child ed to reflect payments begin that should support judgment, applies this Court a de July on 1999. Jefferey then novo questions standard of review for appealed the decision. Sharon McDowell’s law, clearly a erroneous standard of review original motion was still pending during fact, questions for an abuse-of-dis appeal of this case in McDowell 2001 cretion standard of review for discretion ND 635 in N.W.2d which we Buchholz, ary matters. Buchholz v. instructed the district recompute court to ¶36, 11, ND 590 N.W.2d 215. “The trial support child using Support the Child past decision whether to award remand, Guidelinеs. On support child discretionary is and will not by had actual numbers which to calculate appeal overturned on unless the court case, support in using this tax returns has abused its discretion.” Richter v. post-trial. obtained Houser, 1999 ND 193. “A court 75-02-04.1-02(7), errs as a matter of law Section when it comply Code, fails to with the require N.D. Admin. states “income must be support guidelines ments of the child in sufficiently documentеd through the use of determining obligor’s support returns, statements, an child tax obli current wage Knutson, gation.” Knutson v. 2002 ND fully apprise other information to court 29, ¶20, 639 gross N.W.2d 495. of all income.” These tax returns appropriate impute court to income to to the district available were not objection in first We conclude his is child McDowell. it decided when dealing with merit. circumstances without trial. In оther obligations, this calculating child the dis- unnecessary it for V has held

Court predict income for those to trict 36] [¶ actually income is known. years for which in attor awarding the district court erred ¶ E.H., 101, 7, 564 1997 ND Interest of ney fees to Sharon McDowell. N.W.2d “A trial court has con case, in it the facts Under in awarding siderable discretion costs and to increase an of discretion was not abuse fees, аttorney and its decision will not be post- a motion or to use support without an abuse of overturned absent motion for original The evidence. Giese, discretion.” Giese v. 2002 ND pending on support was still child ¶ 11, “A 653 N.W.2d 663. trial court abus actual income Jefferey McDowell’s arbitrarily, es discretion when it acts its the trial court known. We conclude was unreasonably, its unconscionably, or when ordering had sufficient reasons product decision is not the of a rational July step begin to process leading mental to a reasoned de year. increases each termination, misapplies or when it or mis interprets Simpson Chicago the law.” B Co., 31, 10, 657 Pneumatic Tool calculating court erred district support, key because the court did not consider “The factors in deter disability. of an fee mining propriety his party’s award in a divorce action are one The district court its memo- ability pay.” the other’s to needs and stated, “it is observed opinion randum Schmidt, Schmidt v. relying upon this Court that the defendant 14-05-23, N.D.C.C., 196. Section inability an disability professing his provides, part: him a classify the child would as During any time in which an action words, he malingerer of sorts. other ” separation рending, or divorce is as far as he could.’ ‘riding horse court, upon application party, of a The district court considered party requiring issue an order disability, but found to be McDowell’s may necessary for such as be conclude the district rehabilitated. We party of a and minor chil- the clearly erroneous. court’s decision was not parties payment the and for the dren оf C attorney fees. the Jefferey [¶ ‍​‌​​​​‌‌‌‌‌​‌‌​‌​‌‌​​‌​‌​‌‌​‌​‌‌​‌‌‌‌​​‌‌​​​​​​​‍34] concluded the McDowell we [¶ 39] calculating district court erred trial court did not abuse its discretion it consider on support, because failed to ordering parties responsible to be § N.D. Admin. Code 75-02-04.1-

remand attorney refusing their own fees and relating imputing income. attorney Jefferey partial award 176, 37, 635 need to fees. 2001 ND N.W.2d The district court did not [¶ 35] § McDowell’s income explained, 75-02-04.1- We Sharon consider N.D. Admin. Code limited, capaci- earning her it did not find it was somewhat 07 on because ty at the time was similar to invented the court that were McDowell’s, property not in Judge opin- and her distribution Holum’s memorandum ion when she drafted the liquid findings. was not as as McDowell’s Jeffer- ey argues that the substantially greater initially and than his. did not was parent find one had primary been the On remand the district court awarded caretaker. $1,000 together $1,350 per costs. Sharon McDowell earns case, In this the trial court never month and McDowell now earns years” parties’ mentioned “tender and the $2,360 month, approximately per a differ- son was at the time of the final $1,000 per ence of more than month. We old, 12 years hardly decision more than an circumstances, conclude that under the years.” infant or child of “tender The trial district court did not abuse its discretion in court does conclude that Sharon has been awarding attorney Sharon McDowell fees. primary caretaker of the child and chronicles the care provided she has

VI him throughout years. his 12 “The role of Concluding the district court did primary gender caretaker is neutral on its not err in its determination of child custo- face.” v. Leppert Leppert, 519 N.W.2d visitation, dy, (N.D.1994). support, fees, we affirm judgment of the district primary [¶ 45] We have said the role of court. appropriate caretaker is an factor to be considered in determining the best inter WALLE, GERALD W. VANDE child, of a it only ests but is one factor and C.J., KAPSNER, CAROL RONNING and not controlling. Kjelland Kjelland, See NEUMANN, JJ., A. WILLIAM concur. ¶86, 15, 609 N.W.2d 100. The MARING, Justice, concurring specially. primary parent gives caretaker is the who care, daily nurturing, the child sup I specially concur because I dis- “Thus, port. primary Id. caretaker agree part majority’s with that of the anal- distinguishable rule is from the tender ysis Jefferey argues that the trial court years doctrine because the father years relied on the tender doctrine in ar- primary Gravning caretaker.” riving at its decision to award Sharon cus- (N.D. Gravning, 389 625 n. son, tody minor who was 12 1986) (Levine, J., dissenting). years old at the time the second amend- case, In this the trial court care judgment. years ed The tender doctrine fully discussed all of the best interests preference creates a for the mother in a (c) (f) factors and found factors fa dispute when the children are in- Sharon, vored in addition to finding Shar fants, or, words, very young, in other primary on is the caretaker of the child. years.” “tender 14-09-06.2(1)(c) (f). See N.D.C.C. never mentions There is no indication that argued years arguments. “tender doctrine” his or that the trial court considered the ten pri- He never the doctrine, I, therefore, years der con mary caretaker of the minor child. He cur specially. argues picked up he also the child from Mary Maring. Muehlen care, snacks, bed, day gave put him to conclusion, etc. “As

such, with the division duties as to child

care, person primary no one could

caretaker.” He also that Sharon

Case Details

Case Name: McDowell v. McDowell

Court Name: North Dakota Supreme Court

Date Published: Nov 13, 2003

Citation: 670 N.W.2d 876

Docket Number: 20030079

Court Abbreviation: N.D.