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Brouillet v. Brouillet

Supreme Court of North Dakota

February 18, 2016

Bradley Brouillet, Plaintiff and Appellee
v.
Marsha Brouillet, Defendant and Appellant

Page 486

Appeal from the District Court of Grand Forks County, Northeast Central Judicial District, the Honorable JonJ. Jensen, Judge.

Bradley Brouillet, self-represented, Grand Forks, N.D., plaintiff and appellee; on brief.

Timothy C. Lamb, Grand Forks, N.D., for defendant and appellant; on brief.

Dale V. Sandstrom, Daniel J. Crothers, Lisa Fair McEvers, Carol Ronning Kapsner, Gerald W. VandeWalle, C.J.

OPINION

Page 487

Dale V. Sandstrom, Justice.

[¶1] Marsha Brouillet appeals from a divorce judgment that granted primary residential responsibility for the parties' two younger children to Bradley Brouillet, awarded him child support, and divided the parties' marital estate. We conclude the district court's award of primary residential responsibility for the two children, finding of Marsha Brouillet's income in

Page 488

awarding child support, and distribution of marital assets and debts are supported by the record. We affirm.

I

[¶2] Bradley and Marsha Brouillet were married in September 2008. He was 33, and she was 32 years old at the time of trial. The parties had resided together since 2002, separating in 2013, and had two children together, born in 2010 and 2006. Marsha Brouillet also had a child born in 2003. At the time of trial, the oldest child believed Bradley Brouillet was her biological father, but in fact she has a different biological father, who is subject to a child support obligation. In October 2013, Bradley Brouillet sued for divorce. In December 2014, the district court held a two-day bench trial.

[¶3] The district court entered a divorce judgment dividing the parties' assets and debts, granting Bradley Brouillet primary residential responsibility for the younger two children with Marsha Brouillet receiving parenting time, and ordering her to pay child support. While Marsha Brouillet retained primary residential responsibility for the oldest child, the court granted Bradley Brouillet parenting time with the oldest child as the child's psychological parent.

[¶4] The district court had jurisdiction under N.D. Const. art. VI, § 8, and N.D.C.C. § 27-05-06. The appeal is timely under N.D.R.App.P. 4(a). This Court has jurisdiction under N.D. Const. art. VI, § § 2 and 6, and N.D.C.C. § 28-27-01.

II

[¶5] Marsha Brouillet argues the district court erred in applying the best interest of the child factors for determining primary residential responsibility for the two younger children by granting Bradley Brouillet primary residential responsibility.

[¶6] Section 14-09-06.2(1), N.D.C.C., provides factors for evaluating the best interests and welfare of the child in awarding primary residential responsibility. The best-interest factors include:

a. The love, affection, and other emotional ties existing between the parents and child and the ability of each parent to provide the child with nurture, love, affection, and guidance.
b. The ability of each parent to assure that the child receives adequate food, clothing, shelter, medical care, and a safe environment.
c. The child's developmental needs and the ability of each parent to meet those needs, both in the present and in the future.
d. The sufficiency and stability of each parent's home environment, the impact of extended family, the length of time the child has lived in each parent's home, and the desirability of maintaining continuity in the child's home and community.
e. The willingness and ability of each parent to facilitate and encourage a close and continuing relationship between the other parent and the child.
f. The moral fitness of the parents, as that fitness impacts the child.
g. The mental and physical health of the parents, as that health impacts the child.
h. The home, school, and community records of the child and the potential effect of any change.
i. If the court finds by clear and convincing evidence that a child is of sufficient maturity to make a sound judgment, the court may give substantial weight to the preference of

Page 489

the mature child. The court also shall give due consideration to other factors that may have affected the child's preference, including whether the child's preference was based on undesirable or improper influences.
j. Evidence of domestic violence. . . .
k. The interaction and interrelationship, or the potential for interaction and interrelationship, of the child with any person who resides in, is present, or frequents the household of a parent and who may significantly affect the child's best interests. . . .
l. The making of false allegations not made in good faith, by one parent against the other, of harm to a child as defined in section 50-25.1-02.
m. Any other factors considered by the court to be relevant to a particular parental rights and responsibilities dispute.

N.D.C.C. § 14-09-06.2(1).

[¶7] Our standard of review on appeal from the district court's decision on primary residential responsibility is well-established:

[The district] court's award of primary residential responsibility is a finding of fact, which will not be reversed on appeal unless it is clearly erroneous or it is not sufficiently specific to show the factual basis for the decision. See, e.g., Rustad v. Rustad,2013 ND 185, ¶ 5, 838 N.W.2d 421; Wolt v. Wolt,2010 ND 26');">2010 ND 26, ¶ 7, 778 N.W.2d 786. " A finding of fact is clearly erroneous if it is induced by an erroneous view of the law, if no evidence exists to support it, 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." Doll v. Doll,2011 ND 24, ¶ 6, 794 N.W.2d 425. " Under the clearly erroneous standard, we do not reweigh the evidence nor reassess the credibility of witnesses, and we will not retry a custody case or substitute our judgment for a district court's initial custody decision merely because we might have reached a different result." Wolt, at ¶ 7 (quotation marks omitted). The district court has substantial discretion in making a custody determination, but it must ...

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