Appeal from the District Court of Cass County, East Central Judicial District, the Honorable Steven E. McCullough, Judge. AFFIRMED.
The opinion of the court was delivered by: Maring, Justice.
This opinion is subject to petition for rehearing. [Go to Documents]
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Opinion of the Court by Maring, Justice.
[¶1] Andrew Doll appeals from a judgment awarding primary residential responsibility of the parties' minor children to Sarah Doll, now known as Sarah Claeys, and order denying his motion to amend the judgment.*fn1 We conclude the trial court did not clearly err in awarding primary residential responsibility to Claeys. Therefore, we affirm.
I [¶2] Andrew Doll and Sarah Claeys married on June 22, 2002. A few months later, Claeys moved out of the marital home and filed for divorce. A default judgment granting the parties a divorce was entered on February 10, 2003. In the spring of 2003, the parties reunited, although they never remarried. Claeys subsequently informed Doll she was expecting a child. The child, R.M.D., was born later that year. Doll, who is not the biological father of R.M.D., signed a voluntary paternity acknowledgment and is listed as the father on the child's birth certificate. In 2006, the parties had a second child, D.A.D.
[¶3] In the spring of 2008, the parties separated again and Claeys moved out of the parties' home in Moorhead to an apartment in Fargo. Initially, the parties agreed to share residential responsibility of the children on an every-other-day basis. Finding the schedule unstable, however, they later agreed to a three-days-on, three-days-off schedule. In September 2008, Claeys informed Doll she was changing their agreement and assuming primary residential responsibility of the children. Doll was to see the children one night a week and every other weekend and holiday. Doll did not consent to the new arrangement and, consequently, moved for primary residential responsibility of the children in Minnesota. Claeys moved for primary residential responsibility in North Dakota. However, because Claeys' attorney was not licensed to practice in Minnesota, Doll agreed to have the case heard in North Dakota in exchange for a stipulation of his paternity to R.M.D., the parties' oldest child.
[¶4] On March 3, 2009, the judicial referee issued an interim order, awarding the parties joint residential and decision-making responsibility. The parties were to share residential responsibility on a weekly basis. In addition, the referee asked each party to submit the name of a custody investigator and share the expense for the appointment. Jason Loos was appointed as the custody investigator. He issued his initial report on July 2, 2009, and found none of the best interests of the child factors favored Claeys, two of the factors favored Doll, and the remaining factors favored both parties. Specifically, Loos found Claeys made false allegations of sexual abuse, in bad faith, against Doll. He further found Claeys was unwilling to foster a relationship between the children and Doll. Accordingly, he recommended Doll be awarded primary residential responsibility of the parties' minor children. On February 5, 2010, Loos issued a supplemental report, this time recommending the parties share both residential and decision-making responsibility.
[¶5] A three-day trial took place February 8 - 10, 2010. Both parties testified on their behalf. The trial court also heard testimony from Loos, the parties' friends, and family members. When asked to clarify the change in his 2009 and 2010 recommendations, Loos explained the parties should continue the parenting schedule because they have been able to make it work. On March 8, 2010, the court issued its findings of fact, conclusions of law, and order for judgment, awarding primary residential responsibility of the parties' minor children to Claeys. Doll appeals, arguing the trial court clearly erred by awarding primary residential responsibility of the children to Claeys.
II [¶6] An award of primary residential responsibility is a finding of fact that will not be reversed on appeal unless it is clearly erroneous. Molitor v. Molitor, 2006 ND 163, ¶ 6, 718 N.W.2d 13. 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, although there is some evidence to support it, on the entire record, we are left with a definite and firm conviction a mistake has been made. Id. "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 [parenting schedule] decision merely because we might have reached a different result." Wolt v. Wolt, 2010 ND 26, ¶ 7, 778 N.W.2d 786.
[¶7] In an initial parenting schedule decision, a trial court must award residential responsibility to the parent who will best promote the best interests and welfare of the children. Wolt, 2010 ND 26, ¶ 8, 778 N.W.2d 786. "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)." Id. At the time this case was filed, N.D.C.C. § ...