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Machart v. Machart

December 15, 2009

PATRICK TESLA MACHART, PLAINTIFF AND APPELLEE
v.
TRACY LYNN MACHART, N/K/A TRACY BUNKOWSKE, DEFENDANT AND APPELLANT



Appeal from the District Court of Cass County, East Central Judicial District, the Honorable Wade L. Webb, Judge.

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

AFFIRMED IN PART, REVERSED IN PART, AND REMANDED.

[¶1] Tracy Machart, now known as Tracy Bunkowske, appealed from the seventh amended judgment of divorce. On appeal, Bunkowske argues the children's preference to live with their father does not necessitate a change in primary residential responsibility, and changing primary residential responsibility is not in the children's best interests.*fn1 Bunkowske also argues the referee's child support calculation is improper because the order did not include a statement of how her net income was determined, and the referee did not account for her child with her current husband. We affirm the portion of the judgment that awards primary residential responsibility to Patrick Machart, because the referee's decision was not clearly erroneous. We reverse the portion of the judgment that establishes Bunkowske's child support obligation and remand, because the referee misapplied the child support guidelines.

I.

[¶2] Bunkowske and Machart were divorced in 1999. They have two children, a son, J.P.M., and a daughter, J.L.M. J.P.M. was sixteen years old at the time of the evidentiary hearing and J.L.M. was fifteen years old. At the time of their divorce, Bunkowske and Machart stipulated that Bunkowske would have primary residential responsibility for the children and Machart would have regular parenting time. Bunkowske remarried shortly after the divorce and she and her current husband have one daughter together, L.B.

[¶3] In 2008, Machart moved to modify custody, seeking primary residential responsibility for himself, reasonable parenting time for Bunkowske, elimination of his child support obligation, and establishment of a child support obligation for Bunkowske. The evidentiary hearing was held before a judicial referee. See N.D. Sup. Ct. Admin. R. 13, § 5(a)(1) (authorizing judicial referees to preside over proceedings under N.D.C.C. Title 14). The parties did not request review of the referee's findings of fact, conclusions of law and order for seventh amended judgment in the district court. See N.D. Sup. Ct. Admin. R. 13, § 10(a) ("The findings and order of the judicial referee have the effect of an order of the district court until superseded by a written order of a district court judge").

[¶4] Machart argued the children's preference to live with him constituted a material change in the circumstances. At the evidentiary hearing, J.P.M. and J.L.M. both testified, outside their parents' presence, that they wanted to live with their father. J.P.M. testified his mother and stepfather do not treat him and J.L.M. as well as they treat L.B. He also testified J.L.M. and their stepfather do not get along well. J.L.M. testified their stepfather was disrespectful to her and her brother and their mother never took their side. J.L.M. also testified their stepfather "talks bad about my grandma, my dad, and he talks bad to me and my brother."

[¶5] Dr. Stephen Timm, a psychologist, testified he had met with Machart, J.P.M. and J.L.M. individually. Based on the information he received from the children, Dr. Timm concluded they "have a sincere desire to live with their father." Dr. Timm stated further, "In their interviews, [J.L.M.] and [J.P.M.] come across as mature, responsible, well-balanced teenagers, who have legitimate reasons for wanting to live with their father. In my opinion, their wishes are best given serious consideration." Dr. Timm asserted the children had the maturity to state their opinions regarding the parent with whom they would prefer to live, and urged the court to give their opinions consideration.

[¶6] Machart testified he has previously observed Bunkowske's husband yelling and screaming at J.L.M. Bunkowske testified her husband no longer disciplines J.L.M. because he and J.L.M. "butt heads." She stated her husband and J.L.M. "just stay out of each other's way."

[¶7] In the referee's findings of fact, conclusions of law and order for seventh amended judgment, the referee noted both parties agreed there had been a significant change in circumstances. The referee found both parents have a loving and affectionate bond with the children, are morally fit, and are physically and mentally healthy. According to the referee, the children are thriving physically, academically, and are engaged in their community. The referee also found the children are of sufficient intelligence and understanding to give weight to their preference to live with their father. The children's living situation with their mother and stepfather has been "stable," but it is "less and less desirable." The referee found, "The interaction and interrelationship of the children with persons in their mother's home is a factor which favors [Machart]." The referee concluded giving primary residential responsibility to Machart is in the children's best interests.

[¶8] The referee did not ask the parties to submit proposed child support calculations. Machart submitted a proposed child support calculation with his post-hearing brief. Bunkowske did not submit a proposed child support calculation. The referee found Bunkowske had a net monthly income of $2,484. The referee did not explain how he arrived at that finding. Bunkowske had testified she works Monday through Friday, 8:00 a.m. to 4:30 p.m., with a wage of $17.33 per hour. The referee ordered Bunkowske to pay Machart $723 per month in child support. The referee did not account for Bunkowske's daughter with her current husband when making his child support determination.

II.

[¶9] Bunkowske argues awarding primary residential responsibility to Machart is not in the children's best interests. A district court's modification of primary residential responsibility is a finding of fact that will only be reversed if it is clearly erroneous. Frueh v. Frueh, 2009 ND 155, ¶ 7, 771 N.W.2d 593 (citing Siewert v. Siewert, 2008 ND 221, ¶ 16, 758 N.W.2d 691). "A finding of fact is clearly erroneous if there is no evidence to support it, if the finding is induced by an erroneous view of the law, or if the reviewing court is left with a definite and firm conviction a mistake has been made." Id. (quoting Siewert, at ¶ 16) (internal quotations omitted). "[W]e do not retry custody issues or reassess the witnesses' credibility if the court's decision is supported by evidence in the record." Id. (citing Siewert, at ¶ 24). A choice between two permissible views of the evidence is not clearly erroneous. Id. (citing Siewert, at ¶ 24).

[ΒΆ10] The last order establishing primary residential responsibility of J.P.M. and J.L.M. was entered more than two years prior to Machart's Motion to Modify Custody. If more than two years have elapsed since an order establishing primary ...


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