Appeal from the District Court of Sioux County, South Central Judicial District, the Honorable Thomas J. Schneider, Judge.
The opinion of the court was delivered by: Kapsner, Justice.
AFFIRMED IN PART, REVERSED IN PART, AND REMANDED.
[¶1] Jocelyn Boeckel appeals from an amended divorce judgment. We affirm the district court's valuation and distribution of the parties' marital estate and its refusal to award attorney fees to Jocelyn Boeckel. We reverse and remand the case for further findings regarding the applicability of the rebuttable presumption against awarding custody to the perpetrator of domestic abuse.
[¶2] Darnell Boeckel and Jocelyn Boeckel were married in 1994 and lived on a farm near Lemmon, S.D. The parties have three children together, aged eight to fourteen at the time of trial. In April 2005, the parties separated, and Darnell Boeckel filed for divorce. Jocelyn Boeckel and the children moved to Lemmon, while Darnell Boeckel continued to reside on the farm. In February 2006, the district court appointed a custody investigator, who recommended awarding physical custody to Jocelyn Boeckel, with Darnell Boeckel receiving visitation rights.*fn1 In August 2006, Jocelyn Boeckel's parents were killed in an automobile accident. Jocelyn Boeckel and her sister were the heirs to their parents' estate.
[¶3] In February 2007, Darnell Boeckel and Jocelyn Boeckel entered into a "Stipulation For Entry Of Divorce Decree, With Partial Judgment," which provided:
The parties hereby stipulate to the entry of a judgment and decree of divorce herein, with issues of custody, visitation, and child support being settled. The Court will retain jurisdiction over issues of property and debt distribution, which have not been settled, and those matters will be decided in a further hearing.
The parties agreed to reserve the issue of property distribution because litigation over Jocelyn Boeckel's parents' estate remained ongoing, and it was unclear what, if any, property she would actually inherit. The district court entered a divorce judgment in conformity with the parties' stipulation. The judgment awarded physical custody of the parties' children to Jocelyn Boeckel, with Darnell Boeckel receiving visitation rights. With regard to property distribution, the divorce judgment stated: "The equitable division of the marital estate and debts will be determined at a later date, and the Court reserves jurisdiction for that purpose."
[¶4] For approximately six months after the entry of the divorce judgment, the parties both lived near Lemmon, and Darnell Boeckel enjoyed significant visitation with the children. Without first informing Darnell Boeckel, Jocelyn Boeckel moved with the children to Williston, N.D. in December 2007. Jocelyn Boeckel moved because her boyfriend, Chad Barnes, had found work in the Williston area. Jocelyn Boeckel and Barnes subsequently married in April 2008 and had a child in December 2008. After Jocelyn Boeckel and the parties' children moved to Williston, Darnell Boeckel filed a motion to amend the divorce judgment. Darnell Boeckel asked the district court to award him custody of the parties' children and to distribute their marital estate. While the motion was pending before the district court, Darnell Boeckel's mother died in October 2008. Darnell Boeckel was the sole heir to his mother's estate.
[¶5] The district court reappointed the custody investigator, who advised the court to award primary physical custody to Darnell Boeckel, thereby changing her original recommendation. The district court held a bench trial in April 2009. In July 2009, the district court issued findings of fact and an order for amended judgment. The district court found the children's environment in Williston could endanger their physical or emotional health and their best interests would be furthered by residing with Darnell Boeckel. The district court awarded physical custody to Darnell Boeckel. The district court also divided the parties' marital estate and required each pay their own attorney fees. The district court included property Jocelyn Boeckel inherited from her parents in the parties' marital estate, but not the property Darnell Boeckel inherited from his mother. Jocelyn Boeckel now appeals, arguing the district court erred by awarding physical custody to Darnell Boeckel, in its distribution and valuation of the parties' marital estate, and by failing to award her attorney fees.
[¶6] Where a party files a motion to modify custody less than two years after the date of the original order establishing custody, the district court cannot modify custody "unless the court finds the modification is necessary to serve the best interest of the child and:
a. The persistent and willful denial or interference with visitation;
b. The child's present environment may endanger the child's physical or emotional health or impair the child's emotional development; or
c. The primary physical care of the child has changed to the other parent for longer than six months."
N.D.C.C. § 14-09-06.6(5). The district court found, "[a]s a result of Jocelyn moving to Williston, the parties' stipulated visitation schedule was no longer workable." The district court also found "the children's environment in Williston may endanger their physical or emotional health" because "[t]hey have had numerous conflicts, some physical as reported by [the custody investigator], with Chad [Barnes]." Jocelyn Boeckel does not appeal these findings.
[¶7] The district court also found the best interest of the child factors favored Darnell Boeckel. At the time of the district court hearing in this matter, N.D.C.C. § 14-09-06.2(1) identified the following factors as affecting the best interests 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... as defined in section 14-07.1-01....
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 ...