Appeal from the District Court of Burleigh County, South Central Judicial District, the Honorable Thomas J. Schneider, Judge.
The opinion of the court was delivered by: Maring, Justice.
AFFIRMED, REVERSED, AND REMANDED.
[¶1] Timothy Dronen appeals from a district court amended judgment challenging its custody award, property valuation and distribution, and attorney's fees award. We affirm, concluding the district court did not err in awarding custody of the youngest child to Nancy Dronen and declining to award Timothy Dronen spousal support. We further affirm the district court's valuing the parties' assets and debts and distributing half of the marital estate, with the exception that we reverse the district court's valuation of Nancy Dronen's Federal Employee Retirement System ("FERS") annuity and remand for findings consistent with this opinion. We also remand for the district court to make further findings on its award of attorney's fees to Nancy Dronen.
[¶2] Timothy Dronen and Nancy Dronen were married in 1990. They have three minor children. The parties separated on September 13, 2006, and Timothy Dronen filed for divorce in November 2006. Before the separation, the family resided on Timothy Dronen's family's farm. Timothy Dronen's parents also lived on the farmstead. Timothy Dronen acquired Burleigh County farmland after his grandfather's death in 1987, when he began paying his grandmother one-half the crop income and the taxes on the land. This agreement was reduced to writing in 1989 and a contract for deed was executed in that year. Timothy Dronen has always worked as a farmer. Nancy Dronen has worked full time for the Farm Service Agency since 1988.
[¶3] Nancy Dronen and the youngest child moved into an apartment in Steele when the couple separated; the two older children remained living on the family farm with Timothy Dronen. This informal arrangement was maintained by the district court's interim order awarding Timothy Dronen temporary physical custody of the two older children and awarding Nancy Dronen temporary physical custody of the youngest child.
[¶4] After the parties separated and approximately two weeks before Timothy Dronen filed for divorce, Timothy Dronen reported Nancy Dronen to Burleigh County Social Services. Timothy Dronen alleged Nancy Dronen had been physically and verbally abusive to the eldest child. Social Services investigated the allegation and did not require any services for the parties, but recommended counseling for all family members. Timothy Dronen moved to appoint a custody investigator. The court granted his motion.
[¶5] The district court held a four-day trial. Following post-trial briefing by both parties, the court issued a memorandum opinion awarding Nancy Dronen custody of the youngest child and Timothy Dronen custody of the two older children. The district court found the parties' net estate was $885,194.82. The court awarded Nancy Dronen a Thrift Savings and FERS Annuity acquired through her employment. The court awarded Timothy Dronen the farm real estate, farm machinery and equipment, and the farm debt. Timothy Dronen was required to pay Nancy Dronen a cash settlement of $332,842.90 over a ten-year period. The district court also ordered Timothy Dronen to pay $10,000 of Nancy Dronen's attorney's fees, because it found he had inflated his debt. Timothy Dronen appeals the custody award of the youngest child, the property valuation and distribution, and the award of attorney's fees to Nancy Dronen.
[¶6] Timothy Dronen argues the district court's award of custody of the youngest child to Nancy Dronen was not in the child's best interest. He argues the custody determination was clearly erroneous because it split custody of the parties' minor children and the district court erred in its findings on several best interest factors.
[¶7] We outlined our review of child custody decisions in Jelsing v. Peterson, 2007 ND 41, ¶ 11, 729 N.W.2d 157 (citations omitted):
We exercise a limited review of child custody awards. A district court's decisions on child custody, including an initial award of custody, are treated as findings of fact and will not be set aside on appeal unless clearly erroneous. A finding of fact is clearly erroneous if it is induced by an erroneous view of the law, if no evidence exists to support it, or if the reviewing court, on the entire evidence, is left with a definite and firm conviction a mistake has been made. Under the clearly erroneous standard of review, we do not reweigh the evidence or reassess the credibility of witnesses, and we will not retry a custody case or substitute our judgment for a district court's initial custody decision merely because we might have reached a different result. A choice between two permissible views of the weight of the evidence is not clearly erroneous, and our deferential review is especially applicable for a difficult child custody decision involving two fit parents.
"[T]he district court's choice for custody between two fit parents is a difficult one, and this Court will not retry the case or substitute its judgment for that of the district court when its determination is supported by the evidence. The complaining party bears the burden of demonstrating on appeal that a finding of fact is clearly erroneous." Koble v. Koble, 2008 ND 11, * 6, 743 N.W.2d 797 (citations omitted).
[¶8] The district court must apply the factors listed in N.D.C.C. * 14- 09-06.2(1) when making an initial custody determination. Koble, at * 7. Here, the district court considered the best interest factors under N.D.C.C. * 14-09-06.2(1) and made a separate finding on each factor. In awarding Nancy Dronen custody of the youngest child, the district court found factors (a) the love, affection, and emotional ties between the parents and child; (b) the parents' capacity and disposition to give the child love, affection, and guidance, and to continue the child's education; (h) the child's home, school, and community record; (i) the child's reasonable preference; and (m) the other relevant factors in that Timothy Dronen had made disparaging remarks about Nancy Dronen in the community, favored Nancy Dronen. The district court found factor (d) the length of time the child has lived in a stable satisfactory environment and the desirability of maintaining that continuity; and (e) the permanence, as a family unit, of the existing or proposed custodial home, favored Timothy Dronen. The district court found the remaining factors favored neither party.
[¶9] Timothy Dronen argues the district court erred in its findings on factors (a) the love, affection, and emotional ties between the parents and child, (b) the parents' capacity and disposition to give the child love, affection, and guidance, and to continue the child's education, (f) the parents' moral fitness, (h) the home, school, and community record of the child, (i) the child's reasonable preference, (j) evidence of domestic violence, and (m) other relevant factors.
[¶10] Timothy Dronen argues the district court erred in finding factor (a), the love, affection, and emotional ties between the parents and child, favored Nancy Dronen. According to Timothy Dronen, the factor was equal to both parties. Timothy Dronen asserts the court should have focused on the parents' relationships with the child before the parties separated. In determining factor (a) favored Nancy Dronen, the district court found that while both parents love the child, the child's emotional ties seem to be stronger with Nancy Dronen. In support of its finding, the court explained, "[the child] wanted to go and live with his mother when she left the marital home." The court's findings do not indicate that it only considered the child's relationships with his parents since the parties separated. Rather, the record reveals that the district court heard the testimony of the witnesses, reviewed the custody investigator's report, and concluded the child had a greater emotional attachment to Nancy Dronen at the time of trial and before the parties separated. We give deference to the district court's findings and will not reweigh the credibility of the witnesses on appeal. See Mayo v. Mayo, 2000 ND 204, * 24, 619 N.W.2d 631. The district court's finding that factor (a) favored Nancy Dronen is not clearly erroneous.
[¶11] Timothy Dronen argues the district court erred in finding factor (b), the parents' capacity and disposition to give the child love, affection, and guidance, and to continue the child's education, favored Nancy Dronen. According to Timothy Dronen, the youngest child had not turned in thirteen school assignments while in Nancy Dronen's care; Nancy Dronen only began arranging tutoring for the youngest child one month before the trial; and, unlike Timothy Dronen, Nancy Dronen did not state she placed a priority on her children's educations and wanted them to succeed. While acknowledging that both parents are concerned about the child's education and have the capacity and disposition to give the child love, affection, and guidance, the district court found this factor favored Nancy Dronen. The district court heard the testimony of both parents, the child's daycare provider, and the child's teacher. Each of these witnesses testified that the child had always struggled in school and needed additional assistance. The daycare provider testified that since the separation, the child was happy, well-adjusted, and his self-esteem was much higher. The child's teacher testified that Nancy Dronen had arranged tutoring for the child. After hearing the witnesses' testimony, the district court found that this factor favored Nancy Dronen because she had established an after-school tutor for the child. The district court's finding on factor (b) is based on the testimony of several witnesses. We give great deference to the court's observation and assessment of witnesses' credibility. See Hanisch v. Osvold, 2008 ND 214, * 11, 758 N.W.2d 421. The district court's finding factor (b) favored Nancy Dronen is not clearly erroneous.
[¶12] Timothy Dronen argues the district court erred in finding factor (f), the moral fitness of the parties, favored neither party. Timothy Dronen argues the court should have found this factor favored him because Nancy Dronen has engaged in inappropriate conduct with another man while still married to him, exposed the youngest child to this relationship, swore at the children, and told the children they are going to hell. The district court found, "Tim believes Nancy was having an affair prior to their separation. Nancy denies she was having an affair. Tim and Nancy are involved in relationships now." The district court was in the best position to consider the parties' testimony on this issue. The court heard conflicting testimony concerning the parents' relationships with other adults and with the children. We defer to the district court's opportunity to observe and assess the credibility of witnesses. Mayo, 2000 ND 204, * 24, 619 N.W.2d 631. The district court's finding that factor (f) favored neither party is not clearly erroneous.
[¶13] Timothy Dronen argues the district court erred in finding factor (h), the child's home, school, and community record, favored Nancy Dronen. According to Timothy Dronen, the youngest child lived on the farm before the separation and it was a satisfactory environment, the child's teachers testified that his demeanor or behavior was the same after the child moved in with Nancy Dronen as before the separation, and the child was even more involved in activities when he lived on the farm with both parents. The district court found the child likes living in town with his mother, he receives academic assistance from the tutoring his mother established, and he has been more involved in activities since moving to town with Nancy Dronen. The court reviewed the custody investigator's report and heard the testimony of Nancy Dronen, Timothy Dronen, the child's teachers, and the child custody investigator. The district court's findings of fact are supported by evidence in the record. The court did not err in finding factor (h) favored Nancy Dronen.
[¶14] Timothy Dronen argues the district court erred in finding factor (i), the child's reasonable preference, favored Nancy Dronen. According to Timothy Dronen, the child was not of an age, intelligence, or understanding to express a preference. Timothy Dronen contends the child's perception has been altered by living with Nancy Dronen, and the district court should have examined the child on its own, rather than relying on the custody investigator. The district court acknowledged that the child was only ten years of age and may not be able to express a mature preference for either parent. However, the district court found the child's reasons for wanting to live with his mother were thoroughly expressed by the custody investigator. While more weight should be given to custodial preferences of a child as the child matures, Mertz v. Mertz, 439 N.W.2d 94, 96 n.2 (N.D. 1989), we have held that children who were eight and ten years of age at the time of the divorce could be capable of intelligently choosing between parents for purposes of custody. DesLauriers v. DesLauriers, 2002 ND 66, ¶ 13, 642 N.W.2d 892. Furthermore, it is within the district court's discretion to determine the weight to be given a custody investigator's recommendations. Id. at ¶ 11. The district court properly considered the reasons given by the child for wanting to live with his mother, the custody investigator's recommendations, and the child's age in determining how much weight to give the child's preference. The district court did not err in finding factor (i) favored Nancy Dronen.
[¶15] Timothy Dronen argues the district court erred in finding factor (j), evidence of domestic violence, favored neither party. According to Timothy Dronen, Nancy Dronen committed a pattern of domestic violence against him and the children. He contends the youngest child has been impacted by Nancy Dronen's behavior, and the district court erred in reasoning that because there have been no discipline problems between Nancy Dronen and the youngest child, there should not be a problem. Timothy Dronen asserts Nancy Dronen has not introduced evidence of rehabilitation.
[¶16] Section 14-09-06.2(1)(j), N.D.C.C., creates a rebuttable presumption against awarding custody of a child to a perpetrator of domestic violence.
[T]he presumption against awarding custody to the perpetrator arises in three circumstances: (1) there exists one incident of domestic violence which resulted in serious bodily injury; (2) there exists one incident of domestic violence which involved the use of a dangerous weapon; or (3) there exists a pattern of domestic violence within a reasonable time proximate to the proceeding.
Selzler v. Selzler, 2001 ND 138, ¶ 17, 631 N.W.2d 564 (citations omitted). "[W]hen there is credible evidence of domestic violence, it is the predominate factor in custody decisions under N.D.C.C. * 14-09- 06.2(1)." Gietzen v. Gabel, 2006 ND 153, ¶ 9, 718 N.W.2d 552. "When a district court addresses whether evidence of domestic violence triggers the presumption under that statute, we require specific findings and conclusions regarding the presumption so we are not left guessing as to the court's rationale regarding the application of the presumption." Id.
[¶17] In this case, the district court made specific findings and conclusions regarding the presumption of domestic violence. The court found Nancy Dronen and the two older children had a strained relationship. The court found, "An incident between Nancy and [the oldest child] took place where Nancy held [the oldest child] down. This incident happened more than a year before the trial. There was no bodily injury. Nancy felt [the oldest child] was out of control." The court concluded that none of the incidents between Nancy Dronen and the two older children constituted domestic violence, citing the lack of serious bodily injury, the use of a dangerous weapon, or a pattern of domestic violence. The court also found there was no evidence of discipline problems between ...