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Lindberg v. Lindberg

July 21, 2009

CHRISTOPHER A. LINDBERG, PLAINTIFF AND APPELLANT
v.
SHERRI L. LINDBERG, DEFENDANT AND APPELLEE



Appeal from the District Court of Cass County, East Central Judicial District, the Honorable Cynthia Rothe-Seeger, Judge.

The opinion of the court was delivered by: Crothers, Justice.

AFFIRMED IN PART, REVERSED IN PART AND REMANDED.

Opinion of the Court by Crothers, Justice.

[¶1] Chris Lindberg appeals from a divorce judgment awarding Sherri Lindberg physical custody of the parties' children and awarding Sherri Lindberg spousal support. We affirm the district court's child custody award; however, we reverse and remand for further proceedings because we conclude the district court failed to adequately explain its award of spousal support.

I.

[¶2] Chris Lindberg and Sherri Lindberg were married in 1994 and have three children from their marriage. The parties separated in 2004, when Sherri Lindberg and the children moved out of the marital home and in with Sherri Lindberg's parents. In 2005, Chris Lindberg moved the court for a legal separation and Sherri Lindberg countersued for divorce.

[¶3] Following the divorce trial, the district court addressed custody of the children and found best interest factors (a), (b), (c), (f), (g), (h), (i) and (j) favored neither party and factors (d), (e), (k) and (m) favored Sherri Lindberg. The district court awarded physical custody of the children to Sherri Lindberg and granted Chris Lindberg liberal visitation. The court ordered Chris Lindberg to pay Sherri Lindberg $750 a month in rehabilitative spousal support for four years.

II.

[¶4] Chris Lindberg argues the district court erred in awarding sole physical custody of the parties' minor children to Sherri Lindberg. "A district court's award of custody is treated as a finding of fact and, on appeal, will not be reversed unless it is clearly erroneous under N.D.R.Civ.P. 52(a)." Wessman v. Wessman, 2008 ND 62, ¶ 12, 747 N.W.2d 85. "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." Burns v. Burns, 2007 ND 134, ¶ 9, 737 N.W.2d 243 (quoting Gietzen v. Gabel, 2006 ND 153, ¶ 6, 718 N.W.2d 552). "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." Jelsing v. Peterson, 2007 ND 41, ¶ 11, 729 N.W.2d 157. This is particularly relevant "for a difficult child custody decision involving two fit parents." Id.

[¶5] In an initial custody determination, N.D.C.C. § 14-09-06.1 requires "the trial court [to] award custody of the child[ren] to the person who will better promote the best interests and welfare of the child[ren]." Klein v. Larson, 2006 ND 236, ¶ 7, 724 N.W.2d 565. In determining the best interests of the children, the "court must consider all [relevant] factors specified in N.D.C.C. § 14-09-06.2(1)." Schmidt v. Schmidt, 2003 ND 55, ¶ 6, 660 N.W.2d 196.

[¶6] Here, the district court considered the relevant best interest factors in making its custody determination. Specifically, the district court found factors (a), (b), (c), (f), (g), (h), (i) and (j) favored neither party and factors (d), (e), (k) and (m) favored Sherri Lindberg.

A.

[¶7] Chris Lindberg argues the court erred in finding factor (a) favored neither party. Under factor (a), the court must look at "[t]he love, affection, and other emotional ties existing between the parents and child[ren]." N.D.C.C. § 14-09-06.2(1)(a). Chris Lindberg claims factor (a) should have been found in his favor because he continually hugs the children and tells them how much he loves them and how proud they make him. In determining factor (a) favored neither party, the court found that "[b]oth Christopher and Sherri love and show affection to their children." The evidence demonstrates each party loves and shows affection to the children. The district court's finding that factor (a) favored neither party is not clearly erroneous.

B.

[¶8] Chris Lindberg argues the court erred in finding factor (b) favored neither party. When analyzing factor (b), the court must consider "[t]he capacity and disposition of the parents to give the child[ren] love, affection, and guidance and to continue the education of the child[ren]." N.D.C.C. § 14-09-06.2(1)(b). Chris Lindberg contends factor (b) should have favored him because of his strong commitment to being a good parent and because of his educational background. The district court found factor (b) favored neither party because "[b]oth parents have the capacity and disposition to give the children love, affection, and guidance and to continue the education of the children." The evidence supports the district court's finding because each party testified about the love they have for their children and the importance of the children's education. The court's finding factor (b) favored neither party is supported by the evidence and, therefore, is not clearly erroneous.

C.

[¶9] Chris Lindberg argues the court erred in finding factor (c) favored neither party. Under factor (c), the court must look at "[t]he disposition of the parents to provide the child[ren] with food, clothing, medical care . . . and other material needs." N.D.C.C. § 14- 09-06.2(1)(c). Chris Lindberg claims this factor should have favored him because he can better provide for the children since he is earning a master's degree and working two jobs. Chris Lindberg also contends factor (c) should have favored him because Sherri Lindberg is underemployed and unambitious since she is content earning $240 a month and living with her parents. In analyzing factor (c), the district court found both parents were clearly capable and disposed to feed, clothe and care for the children's medical needs. We decline to hold the parent whose earnings are greater is more disposed to provide the children with food, clothing, medical care and other material needs. The evidence demonstrates that when each party is responsible for caring for the children, each of them provides the children with food, clothing and the appropriate care. The district court's finding that factor (c) favored neither party is not clearly erroneous.

D.

[¶10] Chris Lindberg argues the court erred in finding factor (d) favored Sherri Lindberg. A proper analysis of factor (d) requires the court to consider "[t]he length of time the child[ren] [have] lived in a stable satisfactory environment and the desirability of maintaining continuity." N.D.C.C. § 14-09-06.2(1)(d). We have also said that allowing the children to live in the same house is a valid consideration under factor (d). Shaw v. Shaw, 2002 ND 114, ¶ 7, 646 N.W.2d 693. In determining factor (d) favored Sherri Lindberg, the district court focused on the family's numerous moves and on Chris Lindberg's military deployments. The court found that "[u]p to their separation in 2004, the parties had lived together as a family for approximately five (5) of the ten (10) years of marriage." The court found that since Chris Lindberg's return from his deployment to Iraq in July 2007, he has lived in the family home and that since the parties separated in September 2004, Sherri Lindberg and the children have lived with her parents. The court determined factor (d) favored Sherri Lindberg because "[t]he children have lived in a stable satisfactory environment consistently with Sherri and it is desirable that that continuity be maintained."

[¶11] Chris Lindberg argues the court erred in finding factor (d) favored Sherri Lindberg because the children have lived in the marital home longer than they have lived with Sherri Lindberg's parents. We have previously held that in analyzing factor (d) the court must do more than total the number of days the children have lived with each party. Klein, 2006 ND 236, ¶ 13, 724 N.W.2d 565.

[¶12] Chris Lindberg also contends the court erred in its analysis of factor (d) because it penalized him for being absent due to military deployment. Factor (d) is backward looking. Therefore, the amount of time Chris Lindberg has spent away from the children for any reason, including that time due to his military obligations, is a relevant consideration under factor (d). See Eifert v. Eifert, 2006 ND 240, ¶¶ 8, 9, 724 N.W.2d 109. Since the parties' first child was born in 1998, Chris Lindberg has been deployed over two and a half years. The evidence establishes that during all of the parties' military separations and for the past four years, the children and Sherri Lindberg have lived with Sherri Lindberg's parents in their home. While we commend Chris Lindberg's service to our country, the reality is his absence has limited the amount of time he has been able to provide the children with stability. The district court's finding that factor (d) favored Sherri Lindberg was not clearly erroneous because the evidence demonstrates Sherri Lindberg has provided a more stable living environment for the children.

E.

[¶13] Chris Lindberg argues the court erred in finding factor (e) favored Sherri Lindberg. When analyzing factor (e), the court must examine "[t]he permanence, as a family unit, of the existing or proposed custodial home." N.D.C.C. § 14-09-06.2(1)(e). "Although overlap exists between factors (d) and (e), factor (e) uses a forward-looking approach to the stability of the family unit, its interrelations and environment, versus the backward-looking factor (d)." Eifert, 2006 ND 240, ¶ 11, 724 N.W.2d 109. Factor (e) focuses on the children's future prospects for a stable family environment. Id. Interaction and interrelationships with parents and relatives are also considered under factor (e). Id.

[¶14] Chris Lindberg claims he should have received the advantage under factor (e) because he is living in the parties' marital home. Chris Lindberg argues the court erred in finding factor (e) favored Sherri Lindberg because Sherri Lindberg's living situation is uncertain since she testified she was going to move out of her parents' home but did not know where she was going to move to. In analyzing factor (e), the district court found:

"Although Christopher is considering terminating his employment with the Army so that he won't be deployed again, he has not yet done so. Although Christopher has a girlfriend, he has not introduced her to the children.

"Sherri's present home consists of her mother, father, herself, and the children. Sherri continues to be the primary parent for the children."

The record reflects the children have lived with Sherri Lindberg and her parents since the parties separated in 2004. The evidence also establishes Chris Lindberg is still a member of the National Guard and could be deployed in the future. The district court's finding that factor (e) favored Sherri Lindberg is not clearly erroneous because it is supported by the evidence.

F.

[¶15] Chris Lindberg argues the court erred in finding factor (f) favored neither party. Factor (f) addresses "[t]he moral fitness of the parents." N.D.C.C. § 14-09-06.2(1)(f). In looking at factor (f), the court must examine "whether [a party's] moral conduct might be detrimental to the best interests of the child[ren]." Klein, 2006 ND 236, ¶ 16, 724 N.W.2d 565.

[¶16] Chris Lindberg claims he should have been given an advantage under factor (f) because Sherri Lindberg has a history of swearing in front of the children and of being verbally and physically abusive toward him. Chris Lindberg contends factor (f) should have favored him because he is religious and has strong moral values. The district court's finding that "[b]oth parents are morally fit" is not clearly erroneous because no evidence exists suggesting either parent is immoral.

G.

[¶17] Chris Lindberg argues the court erred in finding factor (g) favored neither party. Under factor (g) the court must look at "[t]he mental and physical health of the parents." N.D.C.C. § 14-09- 06.2(1)(g). Chris Lindberg contends factor (g) should have favored him because he his mentally and physically healthy and because he argues Sherri Lindberg has been diagnosed with bulimia, generalized anxiety, social phobia, major depressive disorder-recurrent, and dysthymia. We have previously stated the relevant inquiry under factor (g) "is not merely whether a parent has mental or physical health problems, but whether those health problems might adversely affect the parent's ability to care for the child[ren]." McDowell v. McDowell, 2001 ND 176, ¶ 24, 635 N.W.2d 139. An actual adverse effect is not required before health is considered in the custody determination, but "more than conjecture and speculation is required." Id.

[¶18] In determining factor (g) favored neither party, the district court stated that "Sherri has been diagnosed as borderline asymatic [sic] for which she uses an inhaler, and with mild depression with some anxiety for which she takes medication (Zoloft). Sherri's ability to parent the children has not been adversely affected." The district court's finding that Sherri Lindberg's depression and anxiety do not affect her ability to parent the children is based upon the court's assessment of the credibility of the parties. We have consistently stated that on appeal, we give great deference to the trial court's opportunity to observe and assess the credibility of the parties. Hanisch v. Osvold, 2008 ND 214, ¶ 11, 758 N.W.2d 421. Therefore, we conclude the district court's finding that factor (g) favored neither party is not clearly erroneous.

H.

[¶19] Chris Lindberg argues the court erred in finding factor (h) favored neither party. Factor (h) requires the court to consider "[t]he home, school, and community record of the child[ren]." N.D.C.C. § 14- 09-06.2(1)(h). Chris Lindberg contends this factor should have been found in his favor because the children's grades have improved since he returned from Iraq. The district court determined factor (h) favored neither party because "[t]he children are doing well at school and in their activities in the community." The court's finding that factor (h) favored neither party is ...


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