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Law v. Whittet

Supreme Court of North Dakota

April 7, 2014

Nicholas R. Law, Plaintiff and Appellant
v.
Danielle Whittet, and State of North Dakota, Statutory Real Party in Interest, Defendants

Page 886

Appeal from the District Court of McLean County, South Central Judicial District, the Honorable Cynthia Feland, Judge.

Daniel J. Nagle, Mandan, N.D., for plaintiff and appellant.

Danielle Whittet; no appearance. State of North Dakota, Statutory Real Party in Interest, defendants; no appearance.

Dale V. Sandstrom, Carol Ronning Kapsner, William F. Hodny, S.J., Gerald W. VandeWalle, C.J. The Honorable William F. Hodny, S.J., sitting in place of Lisa Fair McEvers, J., disqualified. Crothers, Justice, specially concurring.

OPINION

Page 887

Sandstrom, Justice.

[¶1] Nicholas Law appeals from a district court judgment awarding Law and Danielle Whittet joint residential responsibility for their minor child. We reverse and remand, concluding several of the district court's findings of fact are clearly erroneous and Law should be awarded primary residential responsibility for the parties' child.

I

[¶2] Law and Whittet met in late 2010 and began dating shortly thereafter. Whittet became pregnant, and the child was born in November 2011. A paternity test confirmed that Law was the biological father. Whittet also has two older children.

[¶3] In July 2012, Law began this action seeking primary residential responsibility for the child. An interim order granted the parties joint residential responsibility for the child, with the parties having the child on alternating weeks. At the time the interim order was entered, the parties lived in neighboring towns, Law in Washburn and Whittet in Underwood. A week before the trial, with no notice to Law, Whittet moved to Scranton, which Law and Whittet agreed was a 6 1/2 hour round trip from Washburn.

[¶4] At trial, Law presented evidence regarding a September 2012 incident in which Whittet physically assaulted her mother with the three children present. Whittet was arrested and placed in a police vehicle, but she escaped. Whittet ultimately pled guilty to charges of disorderly conduct and escape.

[¶5] Following the trial, the district court issued a memorandum order, findings of fact, conclusions of law, and order for judgment. For all but one of the best interest factors under N.D.C.C. § 14-09-06.2(1), the court found the parties were equal or the factor did not apply. The court found factor (c), the ability of each parent to meet the child's developmental needs, favored Whittet because she had taken the child to medical appointments. On factor (j), domestic violence, the court found that neither of the parties had engaged in domestic violence. The court ordered that the parties have joint residential responsibility for the child, with each having physical custody of the child on alternating weeks.

[¶6] After the district court issued its memorandum order, but before entry of judgment, Law moved to supplement the record and amend the findings of fact. A hearing on the motion was held, and Law presented evidence that, after the trial and entry of the memorandum order, Whittet had been arrested for and pled guilty to disorderly conduct and preventing arrest, and that Whittet was severely intoxicated at the time of the incident and did not know who was watching her children. The district court denied the motion to amend

Page 888

the findings of fact on the basis of the new evidence, and judgment was entered awarding the parties joint residential responsibility.

II

[¶7] Law argues the district court's findings of fact on several of the best interest factors, as well as its ultimate finding awarding joint residential ...


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