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Rebenitsch v. Rebenitsch

Supreme Court of North Dakota

February 22, 2018

Dustin Rebenitsch, Plaintiff and Appellee
v.
Janiece Rebenitsch, Defendant and Appellant

         Appeal from the District Court of Morton County, South Central Judicial District, the Honorable Bruce A. Romanick, Judge. AFFIRMED.

          Kent M. Morrow, Bismarck, ND, for plaintiff and appellee.

          Jennifer M. Gooss, Beulah, ND, for defendant and appellant.

          OPINION

          JENSEN, JUSTICE.

         [¶ 1] Janiece Rebenitsch appeals the district court's judgment awarding primary residential responsibility of their child to Dustin Rebenitsch. We affirm the district court's judgment, concluding the district court did not clearly err in awarding primary residential responsibility to Dustin Rebenitsch.

         I

         [¶ 2] Janiece and Dustin Rebenitsch married in 2011 and had a child, H.J.R., in 2012. In 2014, the district court issued an order divorcing the parties and awarding equal residential responsibility. When the parties divorced, they both resided in the Bismarck area. In February 2017, Dustin Rebenitsch moved to modify residential responsibility based on allegations of domestic violence in Janiece Rebenitsch's home. After an investigation, social services found no evidence of abuse in Janiece Rebenitsch's home. However, both Dustin and Janiece Rebenitsch also sought modification because H.J.R. would be starting school, and equal residential responsibility was no longer feasible due to Janiece Rebenitsch's move to Dickinson. At the time of the hearing, Janiece Rebenitsch was living in Dickinson with her other daughter from a different relationship; her boyfriend, Jordan Kessel; and his two sons. Dustin Rebenitsch lived in Bismarck with his wife, Jessica Rebenitsch, and her two sons.

         [¶ 3] At the June 2017 hearing on residential responsibility modification, several witnesses testified about Janiece and Dustin Rebenitsch's character and ability to parent H.J.R. After the hearing, the district court found N.D.C.C. § 14-09-06.2 factors (a), (b), (c), (e), (f), (g), (h), and (k) favored neither party; factors (i) and (j) were inapplicable; and factor (d) favored Dustin Rebenitsch. The district court determined the best interest factors weighed in favor of Dustin Rebenitsch and awarded him primary residential responsibility, subject to Janiece Rebenitsch's reasonable parenting time.

         II

         [¶ 4] On appeal, Janiece Rebenitsch argues the district court's findings regarding factors (b) and (k) are clearly erroneous. Janiece Rebenitsch also argues it is clear, based on the entire record, that the district court made a mistake in awarding Dustin Rebenitsch primary residential responsibility. This Court reviews a district court's decision on primary residential responsibility as follows:

[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. 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. 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. The district court has substantial discretion in making a custody determination, but it must consider all of the best-interest factors. Although a separate finding is not required for each statutory factor, the court's findings must contain sufficient specificity to show the factual basis for the custody decision.

Brouillet v. Brouillet, 2016 ND 40, ¶ 7, 875 N.W.2d 485 (citations and quotation marks omitted).

         [¶ 5] Section 14-09-06.2(1), N.D.C.C., provides the best interest factors a district court must consider in awarding residential responsibility:

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 ...

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