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Dick v. Erman

Supreme Court of North Dakota

February 21, 2019

Trista Dick, Plaintiff and Appellee
Dustin Erman, Defendant and Appellant

          Appeal from the District Court of Burleigh County, South Central Judicial District, the Honorable John W. Grinsteiner, Judge.

          Bobbi B. Weiler, Bismarck, ND, for plaintiff and appellee.

          Daniel H. Oster, Bismarck, ND, for defendant and appellant.


          JENSEN, JUSTICE.

         [¶ 1] Dustin Erman appeals from a district court judgment awarding Trista Dick primary residential responsibility of the parties' minor child. We affirm the district court's judgment as to primary residential responsibility and decision-making responsibility. We reverse the district court judgment with regard to extended parenting time and remand for a decision consistent with this opinion.


         [¶ 2] Dick and Erman are the parents of R.M.E. who was born in 2014. In January 2017, the parties ended their relationship and moved to separate residences. Dick has been the child's custodial parent since the separation. In February 2017, Dick initiated proceedings seeking a determination of primary residential responsibility, parenting time, parenting rights and responsibilities, and child support.

         [¶ 3] The parties could not reach an agreement to resolve the litigation and a trial was held in March 2018. The evidence at trial included testimony regarding Erman's alcohol use and his domestic violence against Dick. The district court ultimately found that best interest factors (d), (f), and (j) favored Dick, determined that the remainder of the factors were either neutral or did not apply, and awarded Dick primary residential responsibility of R.M.E. Erman was provided with parenting time consisting of one overnight a week, every other weekend, and alternating holidays. Erman did not receive any extended parenting time other than additional days associated with every other Christmas holiday and every other school spring break. The parties were allocated day-to-day decision-making authority while R.M.E. is in their respective care. The parties were provided joint decision-making authority for significant decisions and were required to seek professional assistance if they could not agree on those decisions. However, in the event that the parties reached an impasse, Dick was provided with authority to make the decision.

         [¶ 4] On appeal, Erman argues the district court erred in not ordering joint residential responsibility. He also asserts that the district court erred in not providing him with an extended period of visitation and in awarding Dick the ultimate decision-making authority when the parties reached an impasse on significant decisions.


         [¶ 5] Dick's complaint sought primary residential responsibility for R.M.E. In his response to Dick's complaint, Erman sought primary residential responsibility or, alternatively, joint residential responsibility. The district court awarded Dick primary residential responsibility. Erman argues the district court erred in its findings with regard to best interest factors (d), (f), and (j), by not ordering joint residential responsibility, and by failing to provide an explanation why joint residential responsibility had not been ordered.

         [¶ 6] "A 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." Morris v. Moller, 2012 ND 74, ¶ 5, 815 N.W.2d 266. "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." Id. (quoting Doll v. Doll, 2011 ND 24, ¶ 6, 794 N.W.2d 425). In reviewing a district court decision, this Court "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." Marsden v. Koop, 2010 ND 196, ¶ 8, 789 N.W.2d 531 (quoting Heinle v. Heinle, 2010 ND 5, ¶ 6, 777 N.W.2d 590). "This is particularly relevant for custody decisions involving two fit parents." Id.

         [¶ 7] "District courts must award primary residential responsibility of children to the party who will best promote the children's best interests and welfare." Morris, 2012 ND 74, ¶ 6, 815 N.W.2d 266. "A district court has broad discretion in awarding primary residential responsibility, but the court must consider all of the relevant factors under N.D.C.C. § 14-09-06.2(1)." Id. Erman argues the district court's analysis of best interest factors (d), (f), and (j), as well as its final conclusion to award Dick primary residential responsibility rather than joint residential responsibility, were clearly erroneous.

         [¶ 8] Factor (d) requires the district court to consider 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." With respect to factor (d), the district court made several specific findings. The court found both parties had provided testimony they would stay in Lincoln where they were currently residing so that R.M.E. would have continuity in his life and community. The court also found R.M.E. has ties with both sides of his extended family. However, in weighing factor (d) in favor of Dick, the court found that prior to the parties' separation and after, Dick was the primary parent who provided daily care for R.M.E., and Erman's work caused him to be away from home most of the week. The district court's finding that factor (d) weighed ...

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