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Michael P. Martire v. Sandra Hendricksen Martire

September 25, 2012


Appeal from the District Court of Burleigh County, South Central Judicial District, the Honorable David E. Reich, Judge.

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

N.D. Supreme CourtMartireé v. Martireé, 2012 ND 197

This opinion is subject to petition for rehearing.

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[Download as WordPerfect] Dissent filed.


Opinion of the Court by Kapsner, Justice.

Martire v. Hendricksen MartireNo. 20110197

[¶1] Michael Martire appeals and Sandra Hendricksen Martire cross-appeals from a divorce judgment and from the district court's orders on post-trial motions. Both parties challenge the court's decisions on primary residential responsibility, child support, spousal support and marital property distribution, as well as its disposition of the post-trial motions. We affirm, concluding the court's findings of fact are not clearly erroneous and the court did not abuse its discretion.


[¶2] The parties were married in 1990 and had three children: a daughter, D.M., born in 1992; a son, R.M., born in 1995; and another son, C.M., born in 2001. Martire has a medical degree and is a physiatrist working at the Spine and Pain Center in Bismarck. Hendricksen Martire has masters' degrees in business administration and speech pathology, and during the early years of the marriage worked as head of the geriatric department at a Bismarck hospital. In 1995 the parties agreed that Hendricksen Martire would stay at home to care for the children and she worked primarily at home as the vice president and business manager for the clinic business. The parties accumulated significant assets during their marriage. Both parties have been diagnosed with mental disorders which had an effect on the children and eventually contributed to the breakup of the marriage.

[¶3] The parties separated in December 2007 and Martire commenced this divorce action in January 2008. These divorce proceedings have been contentious and a nine-day divorce trial was held in February 2010. Martire was 51 years old and Hendricksen Martire was 48 years old at the time of trial. In a 56-page decision, the district court granted the divorce, awarded the parties joint primary residential responsibility for their sons, and awarded Hendricksen Martire primary residential responsibility for their daughter. The court found Hendricksen Martire has alienated the children from their father, but also found it would not be in the children's best interests to grant Martire sole primary residential responsibility because his abnormal behavior before the parties separated contributed to the estrangement between him and the older children. The court ordered Martire to pay $6,127 per month for child support. The court awarded Martire $2,027,416 of the net marital assets and awarded Hendricksen Martire $2,033,676 of the net marital assets. The court further awarded Hendricksen Martire $5,000 per month for spousal support until she either dies, remarries or attains the age of 65, whichever occurs first.

[¶4] The parties filed numerous post-trial motions. Hendricksen Martire filed an emergency motion for financial relief and sought to hold Martire in contempt and requested sanctions. The court ordered Martire to make a scheduled payment by a certain date to avoid being held in contempt and ordered him to pay Hendricksen Martire $1,500 in attorney fees associated with her motion. Martire moved for reconsideration of the court's order on Hendricksen Martire's motion. Hendricksen Martire filed motions to find Martire in contempt and for appointment of a reunification therapist and for appointment of a new parenting coordinator. Martire filed a motion to hold Hendricksen Martire in contempt for failing to execute documents necessary to effectuate the divorce judgment. Hendricksen Martire also sought relief from the divorce judgment under N.D.R.Civ.P. 52, 59 and 60, alleging 29 errors made by the court in its decision. The court, for the most part, denied the motions and these appeals followed.


[¶5] One thing the parties agree about in this case is that the major issue on appeal is whether the district court erred in granting them joint primary residential responsibility for their two sons. The daughter is now emancipated. Each party claims the court erred in failing to award him or her sole primary residential responsibility for the sons.

[¶6] This Court reviews an award of primary residential responsibility under the clearly erroneous standard of review, which does not allow us to reweigh the evidence, reassess the credibility of witnesses, or substitute our judgment for a district court's initial decision. Smith v. Martinez, 2011 ND 132, ¶ 3, 800 N.W.2d 304. A district court's decision awarding primary residential responsibility is a finding of fact which will not be reversed on appeal unless it is induced by an erroneous view of the law, if no evidence exists to support it, or if on the entire record we are left with a definite and firm conviction a mistake has been made. Id. A choice between two permissible views of the weight of the evidence is not clearly erroneous. Duff v. Kearns-Duff, 2010 ND 247, ¶ 5, 792 N.W.2d 916. A district court must consider the best interests of the child in awarding primary residential responsibility, and in doing so must consider all the relevant best-interest factors contained in N.D.C.C. § 14-09-06.2(1). Duff, at ¶ 5.

[¶7] Here, the district court found that both parents have the ability to assure the children receive adequate food, clothing, shelter, medical care, and a safe environment under N.D.C.C. § 14-09-06.2(1)(b), and that both parents were morally fit under N.D.C.C. § 14-09-06.2(1)(f). The court found although the two oldest children were of sufficient age and intelligence to express a preference under N.D.C.C. § 14-09-06.2(1)(i), it would not consider the preferences of the children because of "the influence of alienation by" Hendricksen Martire. The court found no evidence of domestic violence or of false allegations of harm to the children under N.D.C.C. § 14-09-06.2(1)(j) and (l), and determined the factor addressing the interaction and interrelationship of the children with any person who resides in or frequents the home of a parent under N.D.C.C. § 14-09-06.2(l)(k) did not apply.

[¶8] Under N.D.C.C. § 14-09-06.2(1)(a), which addresses the "love, affection, and other emotional ties existing between the parents and child and the ability of each parent to provide the child with nurture, love, affection, and guidance," the district court found:

The testimony and evidence at trial indicated that both parties love the children. However, Michael accuses Sandra of alienating the children against him and Sandra accuses Michael of verbally and emotionally abusing the children.

Sandra has been the primary care giver for the children during their lifetimes. The parties mutually agreed that Sandra would remain home to raise the children which would enable Michael to pursue his career as a physiatrist to financially support the family. In matters other than the children's relationship with Michael, Sandra has the ability to provide the children with love, affection and guidance. Neighbors Tom and Barbara Thorson testified at trial about her good qualities as a mother to the children and numerous affidavits attesting to her ability as a mother have been submitted during the course of the divorce proceedings. The children have expressed a preference to live with Sandra and love, affection and strong emotional ties exist between Sandra and the children. This bond formed and existed prior to the commencement of the divorce action. There was testimony at trial from Dr. Oates that the emotional relationship between Sandra and the children, although strong, was unhealthy due to enmeshment. The Court has determined that Sandra has alienated the children from Michael during the pending divorce proceedings. The issue of alienation will be addressed at a later point in this Order.

Michael's contact with the children has been extremely limited since this divorce action was commenced. The testimony and evidence indicates that Michael's relationships with D.M. and R.M. were strained even before the divorce. D.M. was often openly disrespectful of Michael. The evidence indicates that the parties attempted counseling as early as 2006 to address these and other family relationship problems. Until shortly before trial, D.M. indicated that she did not want to have a relationship with her father.

Michael's relationship with R.M. prior to the divorce, while better than his relationship with D.M., was also strained. Michael had related to R.M through sports and through coaching his youth teams. However, R.M. no longer wanted Michael involved in his activities due to his obsessive and anxious behavior. R.M. did not want to ride in a car with Michael due to his temper and his comments about driving off a bridge. Michael made several inappropriate comments in the presence of the children which have been exhaustively addressed during this divorce proceeding. Since the divorce was commenced, R.M. has not expressed a desire to be with Michael and has resisted attempts at reunification through therapy.

Michael's relationship with C.M. was described as good before the divorce. Michael coached C.M.'s youth sports teams. After the divorce was commenced, Michael's contacts with C.M. have been limited by Sandra and his relationship with Michael has deteriorated.

Michael has worked hard during the divorce proceedings to try to rebuild relationships with his children. He has followed through with counseling and has undergone evaluations to prove that he is not an abusive parent or a danger to the safety of the children. Despite Michael's efforts, it appears that he has a difficult time relating to the children emotionally. Conversation with the children was difficult for Michael even before the divorce. While Michael will apologize for his actions, he is unwilling or unable to acknowledge the impact his actions may have on the children (i.e. his statements about driving off a bridge, or holding a knife to his chest and then throwing it across the room, or moving out during Christmas vacation without telling anyone).

The children have indicated that they are not comfortable around Michael. While some of the children's reactions, in particular the comments that they do not feel safe with Michael, may be the result of alienation by Sandra, his relationship with the children and his ability to respond to their emotional needs was deficient prior to the commencement of the divorce proceedings. This appears to be due, in large part, to how the family dynamics evolved over an extended period of time during the marriage and also to Michael's inappropriate actions in front of the children in the months prior to the parties' separation.

[¶9] Under N.D.C.C. § 14-09-06.2(1)(c), which addresses the "child's developmental needs and the ability of each parent to meet those needs, both in the present and in the future," the district court found:

Apart from the dysfunctional family dynamics, the children are doing quite well. They are healthy. They are doing well in school and are involved in extracurricular and community activities. Both parents have placed a high priority on the children's participation in extracurricular activities to the extent that, at times, it contributed to the marital and family problems which precipitated this divorce and also to some of the problems regarding parenting time and reunification counseling after the divorce was commenced. The children have not had any contact with law enforcement and there are no reports of behavior problems apart from testimony from Sandra and Theresa Porter that C.M. has been more physically aggressive lately. Michael has also reported aggressive behavior by C.M.

Both parents have mental health issues which affect their ability to meet the children's developmental needs, both now and in the future. Michael has been diagnosed with Generalized Anxiety Disorder and Adjustment Disorder with Depressed Mood, Chronic (by Dr. Bennet, Exhibit 24A); Anxiety Disorder NOS and Adjustment Disorder with Mixed Anxiety and Depressed Mood (by Dr. Hein-Kolo, Exhibit 22); or Adjustment Disorder with Anxiety (Dr. Ben Haynes, Exhibit 20). Whatever the diagnosis, Michael presents as a very nervous or anxious person. As was evident at trial, he has a hard time sitting still. He also tends to obsess over such things as the children's practice schedules, diet, and homework to the extent that the children either do not want to engage in those types of activities or do not want Michael to be involved. This behavior contributed to the marital and parenting difficulties prior to the time of the parties' separation.

Sandra has an Axis II diagnosis of Antisocial and Narcissistic Personality Traits (Dr. Hein-Kolo, Exhibit 26). This causes her to place herself in an overly positive light, to be defensive, and to deny any responsibility for the breakdown in the marriage or in the children's relationships with Michael. Expert testimony at trial suggested that persons with this type of diagnosis are not good candidates for treatment.

The Court has determined that Sandra engaged in behavior which has alienated the children from Michael since the date of the parties' separation. This behavior includes perpetuating a belief in the minds of the children that Michael is not safe for them to be with, even though at least four doctors and/or therapists who have treated or evaluated Michael (Ben[] Haynes, Valerie Lange, Nancy Hein-Kolo, and Barbara Oates) have concluded that he is not a danger to himself or the children. Despite engaging in alienating behavior, Sandra has demonstrated the ability to love, nurture, and encourage the children. She testified that she wants the children to have a relationship with their father; however, her actions have not encouraged that relationship.

[¶10] Under N.D.C.C. § 14-09-06.2(1)(d), which addresses the "sufficiency and stability of each parent's home environment, the impact of extended family, the length of time the child has lived in each parent's home, and the desirability of maintaining ...

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