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Bernhardt v. Harrington

November 17, 2009

L.J. BERNHARDT, DIRECTOR OF STARK COUNTY SOCIAL SERVICE BOARD, OR ANY SUCCESSOR COUNTY, AS ASSIGNEE OF JUANITA K. MARTIN, PLAINTIFF
JUANITA K. MARTIN, APPELLANT
v.
SCOTT J. HARRINGTON, DEFENDANT AND APPELLEE



Appeal from the District Court of Stark County, Southwest Judicial District, the Honorable William A. Herauf, Judge.

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

AFFIRMED.

[¶1] Juanita Martin appeals from a judgment awarding Scott Harrington physical custody of the parties' minor child. We affirm, concluding the district court's custody determination is not clearly erroneous.

I.

[¶2] Martin and Harrington have a daughter, born in January 1999, but have never been married to each other. After the birth, Martin, Harrington and their daughter lived together in Dickinson until the parties separated in 2001. Martin and the child relocated to Bismarck. In May 2007, Martin and the child were evicted from their Bismarck apartment. The child spent the summer of 2007 with her grandmother in Dickinson and attended a Dickinson elementary school that fall. In November 2007, the child moved in with Harrington at his Dickinson residence.

[¶3] In December 2007, Harrington requested an initial custody determination and an ex parte interim order to secure temporary custody of the child. The district court entered an ex parte interim order, giving Harrington temporary custody of the child.

[¶4] Following the October 2008 custody trial, the district court awarded custody to Harrington, granted Martin reasonable visitation and ordered Martin to pay child support.

II.

[¶5] Martin argues the district court erred in awarding custody of the child to Harrington. "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 standard of review is particularly relevant when the district court makes "a difficult child custody decision involving two fit parents." Hanisch v. Osvold, 2008 ND 214, ¶ 4, 758 N.W.2d 421 (quoting Jelsing, at ¶ 11).

[¶6] A district court's award of initial custody is governed by N.D.C.C. § 14-09-06.1, requiring the court to "award custody of the child to the person who will better promote the best interests and welfare of the child." Klein v. Larson, 2006 ND 236, ¶ 7, 724 N.W.2d 565. In its determination, the "trial 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. "Between the mother and father, . . . there is no presumption as to who will better promote the best interests and welfare of the child." N.D.C.C. § 14-09-06.1.*fn1

[¶7] Here, the district court considered all of the best interests factors in making its custody determination. The district court found factor (d) favored Harrington, while factors (a), (b), (c), (e), (f), (g), (h), (i), (j), (k), (l) and (m) favored neither party.

A.

[¶8] Martin argues the district court erred in finding factor (b) favored neither party. When considering factor (b), the court must look at "[t]he capacity and disposition of the parents to give the child love, affection, and guidance and to continue the education of the child." N.D.C.C. § 14-09-06.2(1)(b).*fn2 Martin contends factor (b) should have been weighed in her favor because she was her daughter's primary caretaker and provider from January 1999 until May 2007 and because Harrington only served in that capacity for the eleven months preceding trial.

[¶9] The district court's determination factor (b) favors neither party is supported by evidence in the record. Testimony from multiple witnesses supports the court's finding, "There is no doubt that in this case both parents dearly love [the child] and [the child] dearly loves both parents." The record also reflects both parties served as primary caretaker and provider at some point in their daughter's life, with Martin occupying this role from January 1999 to May 2007 and with Harrington occupying this role from November 2007 to October 2008. The court's determination factor (b) favored neither party is based on the court's observation of the parties and their witnesses, which is given great deference on appeal. Hanisch, 2008 ND 214, ¶ 24, 758 N.W.2d 421 (citing Mayo v. Mayo, 2000 ND 204, ¶ 24, 619 N.W.2d 631). "Under the clearly erroneous standard of review, we do not reweigh the evidence or reassess credibility when there is evidence to support a district court's findings, and we will not reverse a district court's decision merely because we might have reached a different result." Dvorak v. Dvorak, 2006 ND 171, ¶ 11, 719 N.W.2d 362 (citing Hentz v. Hentz, 2001 ND 69, ¶ 6, 624 N.W.2d 694). The district court's finding factor (b) favored neither party is supported by the evidence and is not clearly erroneous.

B.

[¶10] Martin 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 with food, clothing, medical care, . . . and other material needs." N.D.C.C. § 14-09- 06.2(1)(c). Martin claims factor (c) should have been weighed in her favor because she tended to the child's needs for eight years and because Harrington has done so for only eleven months.

[¶11] In analyzing factor (c), the district court heard testimony indicating both parents were disposed to provide for their child according to N.D.C.C. § 14-09-06.2(1)(c). Harrington believes that if Martin were given custody of the child, she would provide the child with food, clothing, shelter, education and medical needs. Conversely, Martin acknowledges Harrington has stepped up to his parental responsibilities since November 2007. Based on this testimony and the district court's opportunity to observe the witnesses, the court's finding factor (c) favored neither party is supported by the evidence and is not clearly erroneous.

C.

[¶12] Martin argues the court erred in finding factor (d) favored Harrington. Martin claims the district court should not have considered in its stability analysis the eleven months Harrington was the child's primary caretaker because at the root of Harrington's time with the child was the ex parte interim order, which Martin asserts was based on misleading statements. However, Martin failed to challenge the necessity of the ex parte interim order by requesting a hearing after its issuance.

[¶13] When an ex parte interim order is entered in a domestic relation case, the North Dakota Rules of Court require the order to provide:

"(A) That the party to whom the order is directed, upon written motion may have a hearing upon the necessity for the issuance of the order or the amounts to be paid; and

"(B) That unless the motion is served and filed in the office of the clerk of district court within 10 days after service of the interim order, the order becomes final and is non-appealable, pending a final determination of the issues raised by the pleadings or until further order of the court in the event of a material change of circumstances.

"(C) That any hearing on the order must be held within 30 days from the date the motion is filed, unless an earlier hearing is required under N.D.C.C. ch. 14-07.1, or an application for change of venue is pending. If the ex parte order contains provisions delineated in N.D.C.C. ch. 14-07.1, the hearing must be scheduled in a timely manner to conform with the chapter."

N.D.R.Ct. 8.2(a)(5)(A-C). The district court's ex parte interim order instructed Martin of her right to a hearing on the order. Martin did not request a hearing, and none was conducted. Under N.D.C.C. § 1-02- 28, a person may waive their rights "unless such waiver would be against public policy." "For a waiver to be effective, it must be a voluntary and intentional relinquishment and abandonment of a known existing right, advantage, benefit, claim or privilege which, except for such waiver, the party would have enjoyed." Steckler v. Steckler, 492 N.W.2d 76, 79 (N.D. 1992) (citing Production Credit Ass'n v. Henderson, 429 N.W.2d 421, 423 (N.D. 1988); Gajewski v. Bratcher, 221 N.W.2d 614, 628 (N.D. 1974)). When a right is waived, the "right is gone forever and cannot be recalled." Meyer v. Nat'l Fire Ins. Co., 67 N.D. 77, 89, 269 N.W. 845, 852 (1936); see 28 Am. Jur. 2d Estoppel and Waiver § 156 (1966 & Supp. 1999) ("Ordinarily, a waiver operates to preclude a subsequent assertion of the right waived or any claim based thereon.") (internal citation omitted).

[¶14] Here, the issuance of the ex parte interim order was not immediately appealable, but it can be reviewed on this appeal. N.D.R.Ct. 8.2(a)(5)(B). However, Martin has not provided us with an issue to review. The proper proceeding for Martin to challenge the factual basis of the affidavits supporting the ex parte interim order was a hearing challenging the issuance of the ex parte interim order. N.D.R.Ct. 8.2(a)(5)(A). Martin did not request a hearing and she did not provide the district court with any facts or any legal argument why it should have ruled differently than it did in the ex parte interim order. By not requesting a hearing within 10 days of the issuance of the ex parte interim order, Martin waived her right to now claim the district court erred in temporarily placing the child with Harrington. Steckler, 492 N.W.2d at 79. From this it follows that the district court did not err by considering the time the child spent with Harrington due to the ex parte interim order.

[¶15] When analyzing factor (d), the court must consider "[t]he length of time the child has lived in a stable satisfactory environment and the desirability of maintaining continuity." N.D.C.C. § 14-09-06.2(1)(d). In Burns, this Court stated:

"Factor (d) `addresses past stability of environment, including a consideration of place or physical setting, as well as a consideration of the prior family unit and its lifestyle as part of that setting. It also addresses the quality of that past environment, and the desirability of maintaining continuity.'"

2007 ND 134, ¶ 17, 737 N.W.2d 243 (quoting Stoppler v. Stoppler, 2001 ND 148, ¶ 9, 633 N.W.2d 142).

[ΒΆ16] The district court properly considered the stability and lifestyle provided by both Martin and Harrington. The court found that Martin had provided the stable environment from January 1999 to May 2007 and that Harrington had provided the stable environment since obtaining temporary custody in November 2007. The court also found the child's diagnosis of acute stress disorder is a result either of Martin's eviction or of the custodial shuffle between Martin and Harrington. The record reflects the child is doing well in her Dickinson school. Both parties are employed full-time, and each party rents housing with enough space for the ...


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