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Friesner v. Friesner

Supreme Court of North Dakota

January 22, 2019

Daniel Lee Friesner, Plaintiff and Appellant
v.
Angelina Treloar Friesner, Defendant and Appellee and State of North Dakota, Statutory Real Party in Interest

          Appeal from the District Court of Cass County, East Central Judicial District, the Honorable Norman G. Anderson, Judge.

          Patti J. Jensen, East Grand Forks, Minnesota, for plaintiff and appellant.

          Jeff A. Bredahl (argued) and Nicole L. Bredahl (appeared), Fargo, North Dakota, for defendant and appellee.

          TUFTE, JUSTICE.

         [¶ 1] Daniel Friesner appeals a district court divorce judgment awarding Angelina Friesner marital property, primary residential responsibility of the parties' minor children, spousal support, and attorney's fees. We affirm.

         I

         [¶ 2] Daniel and Angelina Friesner were married in 1997. They have two teenage children, J.F. and H.F. Daniel Friesner is a college professor earning $152, 325 annually. Angelina Friesner has not been employed since 2006. In 2014, as a result of her diagnoses of fibromyalgia and mixed connective tissue disease, Angelina Friesner was adjudged as disabled since September 2006. Before leaving the workplace, she worked as a pharmacist. In 2016 she received $21, 682.80 in disability benefits.

         [¶ 3] Daniel Friesner sued for divorce in February 2017. The district court entered a temporary order in April 2017 relating to primary residential responsibility of the children, child support, and spousal support. Under the temporary order, the parties shared primary residential responsibility of the children, Daniel Friesner paid $1, 792 per month in child support, and Daniel Friesner paid the mortgage on the parties' home in lieu of spousal support.

         [¶ 4] After a two-day trial in July 2017 and subsequent hearing relating to property division and child support, the district court entered a judgment in February 2018. The court awarded Daniel Friesner marital property valued at $370, 627, and $13, 000 in debt. The court awarded Angelina Friesner $480, 534 in marital property, and debt of $128, 358. At the conclusion of trial, the court awarded Angelina Friesner primary residential responsibility of the children, and under the judgment, Daniel Friesner was ordered to pay $2, 525 per month in child support effective as of August 2017. The court awarded Angelina Friesner spousal support of $2, 000 per month, increasing to $2, 500 in 2020 when J.F. graduates. The court also awarded Angelina Friesner $5, 000 in attorney's fees.

         II

         [¶ 5] Daniel Friesner argues the district court erred in awarding Angelina Friesner primary residential responsibility of H.F. He does not challenge the court's findings relating to J.F.

         [¶ 6] A district court's award of primary residential responsibility is a finding of fact reviewed by this Court under the clearly erroneous standard of review. Schweitzer v. Mattingley, 2016 ND 231, ¶ 22, 887 N.W.2d 541. 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 if, after reviewing the entire record, we are left with a definite and firm conviction a mistake has been made. Innis-Smith v. Smith, 2018 ND 34, ¶ 7, 905 N.W.2d 914. A court's choice for primary residential responsibility between two fit parents is a difficult one, and this Court will not retry the case or substitute its judgment for that of the district court when its decision is supported by the evidence. Thompson v. Thompson, 2018 ND 21, ¶ 8, 905 N.W.2d 772. A court must award primary residential responsibility in light of the child's best interests, considering all the relevant best interest factors under N.D.C.C. § 14-09-06.2(1):

0. 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.
a. The ability of each parent to assure that the child receives adequate food, clothing, shelter, medical care, and a safe environment.
b. The child's developmental needs and the ability of each parent to meet those needs, both in the present and in the future.
c. 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 ...

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