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Wolt v. Wolt

February 17, 2010

KATHY WOLT, PLAINTIFF AND APPELLEE
v.
STEVE WOLT, DEFENDANT AND APPELLANT



Appeal from the District Court of Morton County, South Central Judicial District, the Honorable Robert O. Wefald, Judge.

The opinion of the court was delivered by: Kapsner, Justice

AFFIRMED.

[¶1] Steve Wolt appeals from a judgment granting a divorce from Kathy Wolt. Because we conclude the district court did not clearly err in awarding custody or visitation, or in distributing the parties' marital estate, we affirm.

I.

[¶2] Kathy and Steve Wolt were married in October 1994 and have three minor children together, born in 1995, 1997, and 2003. In 2008, Kathy Wolt commenced this divorce action against Steve Wolt.

[¶3] At the time of the January 2009 trial, Steve Wolt was 43 years old, and Kathy Wolt was 39 years old. Steve Wolt testified that he is the president and sole shareholder of Wolt Transport, Inc., a trucking company, and that his 2008 salary from the corporation was about $47,000. After trial, he submitted a copy of his 2008 W-2 stating his actual wages were $31,700, which the court considered for purposes of calculating child support. In an amended N.D.R.Ct. 8.3 property and debt listing, Steve Wolt listed the value of Wolt Transport, stock as $0, while Kathy Wolt asserted a value of $1,000. Based on evidence the corporation had a negative net worth, the court valued the stock at $0, and awarded it to Steve Wolt.

[¶4] Kathy Wolt testified that she is employed at Aetna Insurance Company, where she had been employed before the marriage. Kathy Wolt's 2008 W-2 showed her 2008 gross income as $33,872. She testified this was the fourth time she had filed for divorce during the marriage and she had dismissed the first divorce action when she saw "a little change" in Steve Wolt. She testified she dismissed the second divorce action when she found out she was pregnant and dismissed the third divorce action to keep the family together.

[¶5] The district court awarded Steve Wolt property valued at $182,190 and debts of $38,308. The court awarded Kathy Wolt property valued at $71,034 and debts of $21,502. The court then ordered Steve Wolt to pay $47,177 to Kathy Wolt to equalize the property division, awarding $96,709 to each party. The court awarded custody of the three minor children to Kathy Wolt and granted Steve Wolt two one-hour sessions of supervised visitation per week at the Family Safety Center at his expense. The court limited Steve Wolt to one 20-minute phone call with the children at 8:30 p.m. on Tuesday and Thursday evenings each week to be monitored by Kathy Wolt. The court also ordered the children not be allowed to call Steve Wolt more than once a week and for no more than 20 minutes. The court ordered Steve Wolt to pay child support to Kathy Wolt in accordance with the child support guidelines.

II.

[¶6] Steve Wolt argues that the district court erred as a matter of law in awarding custody of the children to Kathy Wolt.

[¶7] "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." Lindberg v. Lindberg, 2009 ND 136, ¶ 4, 770 N.W.2d 252 (quotations omitted). Under the clearly erroneous standard, we do not reweigh the evidence nor 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.'" Id. (quoting Jelsing v. Peterson, 2007 ND 41, ¶ 11, 729 N.W.2d 157).

[¶8] In an initial custody decision, the district court is required to award custody of the children to the person who will better promote the best interest and welfare of the children. N.D.C.C. § 14-09-06.1; Lindberg, 2009 ND 136, ¶ 5, 770 N.W.2d 252; Klein v. Larson, 2006 ND 236, ¶ 7, 724 N.W.2d 565. In deciding the children's best interests, 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. At the time of the district court's custody decision, N.D.C.C. § 14-09- 06.2(1)*fn1 outlined the following factors for assessing the best interests and welfare of the child:

a. The love, affection, and other emotional ties existing between the parents and child.

b. The capacity and disposition of the parents to give the child love, affection, and guidance and to continue the education of the child.

c. The disposition of the parents to provide the child with food, clothing, medical care, or other remedial care recognized and permitted under the laws of this state in lieu of medical care, and other material needs.

d. The length of time the child has lived in a stable satisfactory environment and the desirability of maintaining continuity.

e. The permanence, as a family unit, of the existing or proposed custodial home.

f. The moral fitness of the parents.

g. The mental and physical health of the parents.

h. The home, school, and community record of the child.

i. The reasonable preference of the child, if the court deems the child to be of sufficient intelligence, understanding, and experience to express a preference.

j. Evidence of domestic violence. In awarding custody or granting rights of visitation, the court shall consider evidence of domestic violence. If the court finds credible evidence that domestic violence has occurred, and there exists one incident of domestic violence which resulted in serious bodily injury or involved the use of a dangerous weapon or there exists a pattern of domestic violence within a reasonable time proximate to the proceeding, this combination creates a rebuttable presumption that a parent who has perpetrated domestic violence may not be awarded sole or joint custody of a child. This presumption may be overcome only by clear and convincing evidence that the best interests of the child require that parent's participation as a custodial parent. The court shall cite specific findings of fact to show that the custody or visitation arrangement best protects the child and the parent or other family or household member who is the victim of domestic violence. If necessary to protect the welfare of the child, custody may be awarded to a suitable third person, provided that the person would not allow access to a violent parent except as ordered by the court. If the court awards custody to a third person, the court shall give priority to the child's nearest suitable adult relative. The fact that the abused parent suffers from the effects of the abuse may not be grounds for denying that parent custody. As used in this subdivision, "domestic violence" means domestic violence as defined in section 14-07.1-01. A court may consider, but is not bound by, a finding of domestic violence in another proceeding under chapter 14-07.1.

k. The interaction and interrelationship, or the potential for interaction and interrelationship, of the child with any person who resides in, is present, or frequents the household of a parent and who may significantly affect the child's best interests. The court shall consider that person's history of inflicting, or tendency to inflict, physical harm, bodily injury, assault, or the fear of physical harm, bodily injury, or assault, on other persons.

l. The making of false allegations not made in good faith, by one parent against the other, of harm to a child as defined in section 50-25.1-02.

m. Any other factors considered by the court to be relevant to a particular child custody dispute.

[¶9] "The district court has substantial discretion in making a custody determination, but it must consider all of the factors under N.D.C.C. § 14-09-06.2(1)(a)-(m)." Brown v. Brown, 1999 ND 199, ¶ 11, 600 N.W.2d 869. Although a separate finding is not required for each statutory factor, the court's findings must contain sufficient specificity to show the factual basis for the custody decision. Id. Further, the district court has the discretion in deciding what weight to assign a custody investigator's conclusion, and the court need not follow a custody investigator's recommendation. See Sailer v. Sailer, 2009 ND 73, ¶ 34, 764 N.W.2d 445; L.C.V. v. D.E.G., 2005 ND 180, ¶ 4, 705 N.W.2d 257. We have explained the district court should take a custody investigator's report into consideration and come to its own conclusion. Sailer, at ¶ 34; Hanson v. Hanson, 2005 ND 82, ¶ 11, 695 N.W.2d 205.

[¶10] Additionally, this Court has said that "[e]vidence of parental alienation is a significant factor in determining custody." Brown, 1999 ND 199, ¶ 21, 600 N.W.2d 869 (citing Loll v. Loll, 1997 ND 51, ¶ 16, 561 N.W.2d 625). "A party `who willfully alienates a child from the other parent may not be awarded custody based on that alienation.'" Brown, at ¶ 21 (quoting McAdams v. McAdams, 530 N.W.2d 647, 650 (N.D. 1995)).

[ΒΆ11] In this case, the district court considered the statutory best interest factors in making its initial custody determination and made specific findings for each factor. The court found that factors (a), (b), (d), (f), (g), (j), and (m) favored Kathy Wolt and that factors (c), (e), (h), (k), and (l) favored neither parent. The court found that only factor (i) regarding the children's preference favored Steve Wolt. Steve Wolt argues the court erred finding factors (a), (b), (d), (f), (j), and ...


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