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Rustad v. Baumgartner

Supreme Court of North Dakota

December 6, 2018

Trevor Rustad, Plaintiff and Appellant
v.
Mary Baumgartner, Defendant and Appellee

          Appeal from the District Court of Stark County, Southwest Judicial District, the Honorable William A. Herauf, Judge.

          Joshua Nyberg, Fargo, N.D., for plaintiff and appellant.

          Jennifer M. Gooss, Beulah, N.D., for defendant and appellee.

          OPINION

          Tufte, Justice.

         [¶ 1] Trevor Rustad appeals from the district court's judgment granting primary residential responsibility of his two children to their mother, Mary Baumgartner, and setting a parenting time plan for Rustad. He argues the district court's judgment was clearly erroneous because the court did not include in its analysis or findings evidence that was beneficial to him or detrimental to Baumgartner. We affirm the judgment granting primary residential responsibility to Baumgartner but reverse the parenting time plan and remand for further proceedings consistent with this opinion.

         I

         [¶ 2] Rustad and Baumgartner met online in March 2014. They never married but did live together until Baumgartner moved to Glasgow, Montana, in January 2017. The parties have two minor children: L.B.R. born in 2015, and L.J.B. born in 2017. Rustad is employed as an electrician, and at the time of trial Baumgartner was not employed but had previously been employed as a teacher. When L.B.R. was born, the parties agreed that Baumgartner would be a stay-at-home mom while Rustad would continue to work. From January 2017, when Baumgartner moved to Montana, to October 2017, Rustad made the 500-mile round trip from Dickinson to Glasgow approximately 17 times.

         [¶ 3] Rustad filed his complaint in April 2017 to determine a custody arrangement. After trial, the district court granted Baumgartner primary residential responsibility for the two children and awarded Rustad the following parenting time plan:

Trevor [Rustad] shall have parenting time with the children every other weekend.
a. Until the Child(ren) are three (3) years old, Trevor's parenting time shall be up to eight (8) hours a day every other weekend, with no overnight parenting time. However, until L.J.B. is nine (9) months old, parenting time shall be in up to four (4) hour increments. All parenting time shall be in Glasgow, MT, unless otherwise agreed by the parties.
b. Once the child(ren) are three (3) years old, Trevor shall have parenting time every other weekend from 10:00am on Saturday to 4:00pm on Sunday.
c. Once the child(ren) are five (5) years old, Trevor shall have parenting time every other weekend for a period of 48 hours and additional parenting time in the summer as the parties agree.

In addition, the court awarded alternating holidays and birthdays ...


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