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Harvey v. Harvey

Supreme Court of North Dakota

November 12, 2014

Christine Rasmussen Harvey, Plaintiff and Appellee
v.
Jerry Harvey, Defendant and Appellant

Page 658

Appeal from the District Court of Cass County, East Central Judicial District, the Honorable Wickham Corwin, Judge.

Leah J. duCharme, Fargo, ND, for plaintiff and appellee.

James R. Brothers, Fargo, ND, for defendant and appellant.

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

OPINION

Page 659

VandeWalle, Chief Justice.

[¶1] Jerry Harvey appealed from a district court judgment granting a divorce to Christine Rasmussen Harvey, distributing the parties' marital estate, awarding her primary residential responsibility of the parties' three minor children, and denying him spousal support. We conclude the court's decision to award Christine Rasmussen Harvey primary residential responsibility is not clearly erroneous. We also conclude the court erred by failing to consider reservation of jurisdiction to award spousal support in the future. We affirm in part, reverse in part, and remand for additional findings on the issue of Jerry Harvey's disabled status.

I

[¶2] Jerry Harvey and Christine Rasmussen Harvey were married in 2000 and have three minor children. Prior to the marriage, Jerry Harvey had suffered injuries

Page 660

and received a settlement from a work-related accident. The settlement was valued at approximately $1.5 million, and he currently receives Social Security disability payments. Christine Rasmussen Harvey owns and operates an insurance agency.

[¶3] Christine Rasmussen Harvey filed for divorce in 2012. She sought primary residential responsibility of their three children, a fair and equitable property division, and child support. Jerry Harvey counter-claimed seeking primary residential responsibility, child support, and permanent spousal support.

[¶4] On February 1, 2013, the district court entered a temporary order requiring the parties agree to a shared parenting plan providing equal parenting time and use of the marital residence on a rotating basis. The interim order also required Jerry Harvey to undergo a functional capacity assessment to determine the extent of his physical health and limitations.

[¶5] On August 6, 2013, a trial was held in the divorce proceeding. On September 24, 2013, the district court entered a divorce judgment awarding Christine Rasmussen Harvey primary residential responsibility of their children, and did not order any child support or spousal support. The court distributed the marital estate in Jerry Harvey's favor, awarding him $92,146 in assets and $25,618 in debts, and awarding Christine Rasmussen Harvey $58,329 in assets and $25,065 in debts. The order also required the sale of the marital residence, with Jerry Harvey receiving two-thirds of the net proceeds. Further dispute arose regarding the ordered sale of the marital home, and was clarified by the district court. A final order for entry of judgment was subsequently entered on January 9, 2014.

II

[¶6] On appeal, Jerry Harvey argues the district court erred in awarding Christine Rasmussen Harvey primary residential responsibility of the parties' children. He contends the district court should be required to determine primary caretaker status in a close decision in addition to balancing the best interest factors. Had this primary caretaker status been determined, he argues, the record would show he was the primary caretaker and should be awarded primary residential responsibility.

[¶7] " 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 own judgment for a district court's initial decision." Vandal v. Leno,2014 ND 45, ¶ 6, 843 N.W.2d 313. " A district court's decision awarding primary residential responsibility is a finding of fact which will not be set aside on appeal unless it is induced by an erroneous view of the law, no evidence exists to support it, or, on the entire record, we are left with a definite and firm conviction a mistake has been made." Id. at ¶ 6. " A choice between two permissible views of the weight of the evidence is ...


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