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Theresa Marie Horsted, Plaintiff and Appellant v. Christopher D.

February 17, 2012

THERESA MARIE HORSTED, PLAINTIFF AND APPELLANT
v.
CHRISTOPHER D. HORSTED, DEFENDANT AND APPELLEE



Appeal from the District Court of Stutsman County, Southeast Judicial District, the Honorable Thomas E. Merrick, Judge.

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

N.D. Supreme Court

Horsted v. Horsted, 2012 ND 24

This opinion is subject to petition for rehearing. [Go to Documents]

[Download as WordPerfect] Dissent filed.

AFFIRMED IN PART, REVERSED IN PART AND REMANDED.

Opinion of the Court by Kapsner, Justice.

[¶1] Theresa Horsted appeals from a district court order, divorce judgment, and amended divorce judgment awarding Christopher Horsted joint decisionmaking responsibility and visitation with the parties' daughter and dividing custody investigator fees between the parties. We affirm in part, reverse in part, and remand for further proceedings.

I

[¶2] Theresa and Christopher Horsted were married on September 13, 2009 and had one child, R.M.H., born in 2010. The parties later separated, and Theresa Horsted commenced an action for divorce. Theresa Horsted claimed Christopher Horsted was verbally and physically abusive toward her; he denied her allegations. Theresa Horsted reported one incident of alleged domestic violence to law enforcement, but no charges were filed. Christopher Horsted was previously charged with simple assault against a former girlfriend. Following a motion by Christopher Horsted, which Theresa Horsted opposed, the district court ordered the appointment of a custody investigator. The custody investigator completed a report, recommending a graduated parenting time schedule and suggesting "[p]rior to any unsupervised visits with Christopher [Horsted] . . . , he will complete an Anger/Domestic Violence Assessment and all recommendations resulting from the assessment."

[¶3] The parties agreed that Theresa Horsted would have primary residential responsibility, but remained unable to agree on various issues relating to R.M.H., and a trial was held. The court subsequently issued an order requiring each party to pay half of the custody investigator fees. The court also entered a divorce judgment that adopted the parenting plan proposed by Christopher Horsted and granted the parties joint decisionmaking responsibility with respect to R.M.H. After the commencement of the parenting plan, Theresa Horsted moved for its amendment, claiming R.M.H. was having difficulty adjusting to the visitation schedule. Following a hearing on the motion, the court modified the parenting plan in an amended judgment.

II

[¶4] Theresa Horsted argues the court erred in awarding joint decisionmaking responsibility to the parties, and in adopting Christopher Horsted's proposed parenting plan, then inadequately amending the plan after R.M.H. exhibited behavioral changes following visitation. Custody and visitation determinations are findings of fact and will not be reversed on appeal unless they are clearly erroneous. Edwards v. Edwards, 2010 ND 2, ¶ 7, 777 N.W.2d 606. We have stated:

A finding of fact is clearly erroneous if it is induced by an erroneous view of the law, if there is no evidence to support it, or if, although there is some evidence to support it, on the entire evidence we are left with a definite and firm conviction a mistake has been made. Id. Under the clearly erroneous standard, we will not reweigh evidence, reassess witness credibility, or substitute our judgment for the district court's ...


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