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Law v. Whittet

Supreme Court of North Dakota

January 22, 2015

Nicholas R. Law, Plaintiff and Appellant
v.
Danielle Whittet, a/k/a Danielle Whittet-Shear, Defendant and State of North Dakota, Statutory Real Party In Interest

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

Daniel James Nagle, Mandan, ND, for plaintiff and appellant.

Danielle Whittet, defendant; no appearance.

Opinion of the Court by Crothers, Justice. Daniel J. Crothers, Dale V. Sandstrom, Carol Ronning Kapsner, Paul W. Jacobson, D.J., Gerald W. VandeWalle, C.J. Honorable Paul W. Jacobson, D.J., sitting in place of McEvers, J., disqualified.

OPINION

Page 637

Crothers, Justice.

[¶1] Nicholas R. Law appeals from a district court amended judgment awarding Danielle Whittet parenting time every alternating week and ordering Law to pay child support. We addressed this case in Law v. Whittet, 2014 ND 69, 844 N.W.2d 885 (concluding the district court's judgment was clearly erroneous and remanding with instructions to grant Law primary residential responsibility of the minor child and to consider limited parenting time for Whittet). Law argues the district court violated the mandate rule by not following the pronouncements of the North Dakota Supreme Court and erred by not granting primary residential responsibility to Law. The judgment is reversed and remanded for proceedings consistent with Law v. Whittet, 2014 ND 69, 844 N.W.2d 885.

I

[¶2] Law and Whittet began a relationship in December 2010, but never married. Their child was born in November 2011. Law brought an action seeking primary residential responsibility for the child. Following trial, the district court issued findings of fact addressing the best interest factors. The court ordered the parties equal residential responsibility for the child, each having the child on alternating weeks with exchanges taking place on Sunday. 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 under the influence of some substance at the time of the incident. The district court denied the motion to amend the findings of fact based upon the new evidence and entered a judgment awarding equal residential responsibility.

[¶3] Law appealed, arguing the district court's findings of fact on the best interest factors were clearly erroneous and the court erred in denying his motion to amend the findings of fact based upon the supplemented record. We reversed, concluding the district court's judgment was clearly erroneous and remanded with instructions to grant Law primary residential responsibility of the minor child and to consider limited parenting time for Whittet. Law, 2014 ND 69, 844 N.W.2d 885. On remand, the district court issued an order for amended judgment, awarding each parent parenting time with the child on alternating weeks with exchanges taking place on Sunday and ordering Law to pay child support of $542 and Whittet to pay child support of $179 each month. Law appeals.

II

[¶4] " An award of [primary residential responsibility] is a finding of fact which this Court will not disturb unless it is clearly erroneous." McAllister v. McAllister, 2010 ND 40, ¶ 13, 779 N.W.2d 652 (citations omitted). " Under N.D.R.Civ.P. 52(a), a finding of fact is clearly erroneous only if it is induced by an erroneous view of the law or, although there is some evidence to support it, on the entire record we are left with a definite and firm conviction a mistake has been made." McAllister, at ¶ 13 (citations omitted).

III

[¶5] Law argues the district court violated the mandate rule by not following the pronouncement of this Court. " On remand, district courts must follow the mandate rule." Walstad v. Walstad, 2013 ND 176, ...


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