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Rustad v. Rustad

Supreme Court of North Dakota

July 17, 2014

Rick R. Rustad, Plaintiff, Appellant, and Cross-Appellee
v.
Svetlana Rustad, Defendant, Appellee, and Cross-Appellant

Page 608

Appeal from the District Court of Cass County, East Central Judicial District, the Honorable Frank L. Racek, Judge.

Leslie J. Aldrich and Joshua Nyberg, Fargo, N.D., for plaintiff, appellant, and cross-appellee.

Svetlana Rustad, Fargo, N.D., defendant, appellee, and cross-appellant; self-represented.

Lisa Fair McEvers, Daniel J. Crothers, Carol Ronning Kapsner, Gerald W. VandeWalle, C.J. Opinion of the Court by McEvers, Justice. Dale V. Sandstrom, concur in the result.

OPINION

Page 609

McEvers, Justice.

[¶1] Rick Rustad appeals and Svetlana Rustad cross-appeals from an amended judgment awarding her primary residential responsibility for the parties' minor child. We affirm, concluding the district court's decision to award Svetlana Rustad primary residential responsibility is not clearly erroneous.

I

[¶2] Rick and Svetlana Rustad were married in February 2008 and have one minor child together, who was born in 2011. Svetlana Rustad is a permanent resident of the United States and a Russian citizen. The parties lived in Kindred during the marriage. Rick Rustad is self-employed and works as a software consultant. Svetlana Rustad has degrees in economics and law, which she obtained in Russia, and she was employed throughout the marriage until October 2012.

[¶3] In May 2012, Rick Rustad filed for divorce. After a trial, the district court granted the divorce, distributed the marital property, awarded Svetlana Rustad rehabilitative spousal support and primary residential responsibility of the child, and ordered Rick Rustad to pay child support.

[¶4] Rick Rustad appealed the judgment, arguing the district court's decision on primary residential responsibility was clearly erroneous, the decision was not supported by the evidence, the court failed to make specific findings about the best interest factors as required by N.D.C.C. § 14-09-06.2, and the court failed to explain its rationale for awarding primary residential responsibility to Svetlana Rustad when its findings were in his favor. Rick Rustad also argued the court's marital property valuation and distribution was clearly erroneous, and the court's decision to award Svetlana Rustad rehabilitative spousal support was clearly erroneous.

[¶5] In Rustad v. Rustad, 2013 ND 185, ¶ 1, 838 N.W.2d 421, this Court affirmed the portion of the judgment awarding spousal support and distributing marital property, but reversed and remanded the court's decision on primary residential responsibility. This Court said the district court's findings on primary residential responsibility were not sufficiently specific and detailed to allow us to understand the basis for the decision, and we remanded for findings on the best interest factors. Id. at ¶ 12.

[¶6] On remand, the district court amended its decision and made findings under the best interest factors. The court awarded Svetlana Rustad primary residential responsibility, finding the best interest factors favor Svetlana Rustad and it would be in the child's best interest if she had primary residential responsibility.

II

[¶7] Rick Rustad argues the district court erred in awarding Svetlana Rustad primary residential responsibility. He contends the court misapplied the law, ignored relevant facts, considered facts that were not in evidence, and failed to address credible evidence of alienation.

[¶8] 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, 2013 ND 185, ¶ 5, 838 N.W.2d 421. A finding 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. " 'Under the clearly erroneous standard of ...


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