As Corrected June 19, 2014.
[Copyrighted Material Omitted]
Appeal from the District Court of Cass County, East Central Judicial District, the Honorable Steven L. Marquart, Judge.
Richard Ducote (argued), Pittsburgh, PA, Brian C. Balstad (appeared) and Patti Jo Jensen (on brief), East Grand Forks, MN, for plaintiff and appellant.
Susan Lorraine Ellison, West Fargo, N.D., for defendant and appellee.
Carol Ronning Kapsner, Gail Hagerty, D.J., Gerald W. VandeWalle, C.J. Opinion of the Court by Kapsner, Justice. Daniel J. Crothers, concurred in the result. The Honorable Gail Hagerty, D.J., sitting in place of McEvers, J., disqualified. Sandstrom, Justice, concurring and dissenting.
[¶1] Alonna Norberg appeals from a district court judgment granting her a divorce from Jon Norberg, distributing the parties' marital estate, awarding Jon Norberg primary residential responsibility of the parties' three minor children, and denying her request for spousal support. We conclude the court's decision to award Jon Norberg primary residential responsibility of the children is not clearly erroneous. However, we also conclude the court erred by failing to include all of the parties' property in the property distribution, failing to retain jurisdiction to award spousal support in the future, and forgiving Jon Norberg's child support arrearages. We affirm in part, reverse in part, and remand.
[¶2] Alonna and Jon Norberg were married in 1996, and have three children together. The Norbergs both have medical degrees and have been employed as physicians in the past. Alonna Norberg stopped working in 2008, due to medical problems and receives social security disability benefits.
[¶3] In 2011, Alonna Norberg filed for divorce. She requested a fair and equitable property distribution, primary residential responsibility of the children, child support, and permanent spousal support. She also moved for a temporary order, granting her use of the parties' residence, temporary primary residential responsibility of the children, and child support. Alonna Norberg filed an affidavit in support of her motion for a temporary order, alleging Jon Norberg forced her to engage in sexual acts without her consent while she was drugged, he administered the drug
propofol to her without her knowledge, he videotaped them engaging in sexual acts without her knowledge, and he was verbally abusive. Jon Norberg responded to the motion and denied Alonna Norberg's allegations, claiming she fabricated the allegations to help secure primary residential responsibility of the children.
[¶4] On August 17, 2011, the district court entered a temporary order, granting Alonna Norberg exclusive use of the parties' residence and giving her temporary primary residential responsibility of the children. The court ordered Jon Norberg pay $4,250 per month in child support beginning August 2011. The temporary order was amended three times, but Alonna Norberg retained primary residential responsibility of the children, and none of the amended orders modified Jon Norberg's child support obligation.
[¶5] On August 24, 2011, the district court ordered a custody investigator be appointed. The custody investigator ultimately recommended Alonna Norberg be awarded primary residential responsibility of the children and Jon Norberg be granted parenting time.
[¶6] There was a criminal investigation of Alonna Norberg's allegations, and Jon Norberg was charged with various felony offenses. After a jury trial in November 2012, Jon Norberg was acquitted of the charges.
[¶7] In January 2013, a trial was held in the divorce proceeding, and in March 2013, the district court entered an order granting Alonna Norberg a divorce from Jon Norberg. The court awarded Jon Norberg primary residential responsibility of the children, finding Alonna Norberg's allegations about Jon Norberg drugging her and forcing her to engage in sexual acts were not credible and were false. The court distributed the parties' marital estate, awarding Alonna Norberg $348,786.50 in assets and $712,641.00 in debts, and awarding Jon Norberg $1,112,892.50 in assets and $1,301,040.00 in debts. The court denied Alonna Norberg's request for permanent spousal support. The court awarded Jon Norberg child support and ordered that his child support obligation was terminated as of December 1, 2012, and any arrearages he owed from the period when Alonna Norberg had temporary primary residential responsibility were forgiven. A judgment was subsequently entered.
[¶8] Alonna Norberg argues the district court erred in awarding Jon Norberg primary residential responsibility of the parties' children. She contends the court's decision was primarily based on its erroneous finding that she falsely accused Jon Norberg of drugging her with propofol without her consent and sexually assaulting her. She contends the court equated Jon Norberg's criminal acquittal with a finding of innocence. She claims the court's decision should be reversed because a mistake has been made, the court based its decision on its finding that she fabricated the propofol and sexual abuse allegations, the court did not consider the other best interest factors, and this Court should not defer to the district court's findings about witness credibility.
[¶9] " A court's award of primary residential responsibility is a finding of fact, which will not be reversed on appeal unless it is clearly erroneous." Rustad v. Rustad, 2013 ND 185, ¶ 5, 838 N.W.2d 421. A finding of fact is clearly erroneous if it is induced by an erroneous view of the law, there is no evidence to support it, or we are convinced, based on the entire record, that a mistake has been made. Id. We do not reweigh the evidence,
reassess the witnesses' credibility, or substitute our judgment for a district court's initial primary residential responsibility decision. Dieterle v. Dieterle, 2013 ND 71, ¶ 6, 830 N.W.2d 571. The district court is in a better position to judge the witnesses' credibility and we will not reassess the witnesses' credibility. Id. at ¶ 11.
[¶10] The district court must award primary residential responsibility to the parent who will best promote the child's best interests.
Rustad, 2013 ND 185, ¶ 6, 838 N.W.2d 421. The court has broad discretion in deciding residential responsibility; however, the court must consider the best interest factors under N.D.C.C. § 14-09-06.2(1). Rustad, at ¶ 6. " The court is not required to make specific findings on each best interest factor, but the court must consider all of the factors and make findings with sufficient specificity to enable our Court to understand the factual basis for its decision." Id.
[¶11] The district court considered and made specific findings on each of the relevant best interest factors under N.D.C.C. § 14-09-06.2(1). The court found factors (a), (b), (c), (d), (h), (i), (j), and (k) did not favor either party. The court found both parents love the children, both parents can adequately assure the children will receive adequate food and shelter, both parents are excellent parents with some imperfections, both parents have extended family that have a positive impact on the children, and both parents show an interest in the children's education.
[¶12] The court considered factor (g), the parents' health and its impacts on the children, and found that factor favored Jon Norberg because he does not have any adverse health issues but Alonna Norberg's physical and emotional health has had a great impact on the children:
At any one time, Alonna was on 40 different medications. She was bedridden at times. She, at times, used crutches and walkers to ambulate. She had difficulty concentrating and remembering. In 2009 Alonna was admitted to Sierra Tucson, a treatment facility in Arizona for treatment of chronic pain, chemical dependence, and mood disorder. Alonna relapsed after that treatment.
Alonna suggests that she has made a remarkable recovery since June, 2011. She attributes this to the fact that Jon has been out of the home during this period and therefore, Jon must have been the source of her problems. The Court, however, refuses to make that connection. A more plausible explanation for Alonna's miraculous recovery is that she now takes seven medications as opposed to the 40 she was taking before. Alonna was very motivated to clean up her act. Very telling was the parent investigator's testimony that Alonna's family, i.e., mother, father, brothers, and sisters, told him that if a decision had to be made in June of 2011 who should have custody of the children, they would have supported Jon.
The Court also finds Dr. Harjinder Virdee's testimony persuasive when she testified that use of opiates, Alonna's problem, has a high rate of recurrence, and that stressors are the common cause of recurrence.
[¶13] The court found other factors favored Jon Norberg based on its findings about Alonna Norberg's allegations that Jon Norberg abused her and sexually assaulted her. In considering factor (j) and whether there was evidence of domestic violence, the court found there was no credible evidence of domestic violence and explained its findings about Alonna Norberg's allegations:
Alonna also alleged that Jon administered Propofol to her which resulted in nonconsensual oral sex and anal sex. First of all, this Court finds that Alonna was a willing participant in the use of Propofol on her. She ordered, by mail, some of the equipment which would allow Propofol to be administered through her port. Her testimony that she did not know Diprivan was Propofol is not credible given her training as a physician. Alonna was in a very bad state physically and emotionally and was willing to try anything, including Propofol, to feel better. Alonna also agreed that she had been a willing participant in oral and anal sex in the past.
Alonna's assertion that Jon had forced oral and anal sex on her also lacks credibility for several other reasons. She knew that given her physical and mental condition, she would likely lose the kids to Jon in a divorce. She met with a divorce lawyer before she reported the incident to the police on July 5, 2011. Her report to the police was very explicit and she volunteered the information without much prompting from the questioner. This is uncharacteristic of sexual abuse victims who often find it difficult to talk about the matter. The following evening after June 17, 2011, Alonna camped with Jon and the children in one of their vacant lots, to celebrate Father's Day. The following day, they all had a church picture taken together. Finally, Alonna did not mention sexual abuse or domestic abuse to any of her physicians before July 5, 2011.
The Court finds that Alonna's report of sexual abuse was untrue and was nothing more than her attempt to get primary residential responsibility of the parties' children.
The court found Alonna Norberg's false allegations also affected other best interest factors. The court found Alonna Norberg lied to the children about her allegations against Jon Norberg, her lies alienated the children from their father, and her lies resulted in Jon Norberg having supervised parenting time with the children, which may have damaged his relationship with them. The court found Alonna Norberg's lies about Jon Norberg were strong evidence of her moral unfitness impacting the children because the children had to deal with news accounts of the criminal trial and the intrusions of supervised parenting time and the lies put Jon Norberg at risk of ...