James F. Klundt, Plaintiff and Appellee
Rebecca L. Benjamin, Defendant and Appellant
from the District Court of Bottineau County, Northeast
Judicial District, the Honorable Michael P. Hurly, Judge.
M. Conroy, Bottineau, ND, for plaintiff and appellee.
Caitlyn A. Pierson, Minot, ND, for defendant and appellant.
Rebecca Benjamin appeals from a district court's judgment
awarding primary residential responsibility of the minor
child P.J.K. to James Klundt and changing the child's
last name to Klundt. We affirm the judgment as to primary
residential responsibility and reverse the court's
judgment regarding its sua sponte change of the
minor child's last name.
Benjamin and Klundt are the biological parents of P.J.K., who
was born in 2012. Benjamin was initially the primary
caregiver for P.J.K. Benjamin eventually relocated from North
Dakota to Tennessee and then Michigan. In 2016, Benjamin
moved back to North Dakota and an informal fifty-fifty
custody arrangement was agreed upon by both parties. These
arrangements were all informal and followed by the parties
without a judicial order.
In 2017, Benjamin notified Klundt she intended to move with
her fiancé to South Africa for roughly two years and
planned to take P.J.K. with her. Klundt objected to the move
and petitioned the district court for primary residential
responsibility of P.J.K. The parties reached an interim
agreement allowing Benjamin to move to South Africa with
Klundt receiving summer parenting time. The interim agreement
also provided that an evidentiary hearing would be held in
2018 regarding primary residential responsibility for P.J.K.
Benjamin resided in South Africa for roughly three months
before moving back to Michigan to reside with her parents.
In July 2018, an evidentiary hearing was held regarding
primary residential responsibility. Benjamin wanted to be
allowed to move with P.J.K. to Michigan. Because
Benjamin's relocation request had not been properly
noticed or briefed, the request to relocate was not
considered by the district court. During the hearing, each
party presented evidence and exhibits suggesting they should
be awarded primary residential responsibility of P.J.K. Near
the end of the hearing, the district court sua
sponte announced the minor child's last name would
be changed from Benjamin to Klundt.
In August 2018, the district court entered its findings of
fact, conclusions of law, and order awarding Klundt primary
residential responsibility of P.J.K. A judgment reflecting
the order was entered the same day. On appeal, Benjamin
argues the court erred in awarding primary residential
responsibility of P.J.K. to Klundt and by sua sponte
changing the last name of the minor child.
Benjamin argues the district court erred in its analysis of
the best interest factors and by awarding primary residential
responsibility to Klundt. "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.
"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. The district court found
factors (d) and (e) favored Klundt, and the rest of the
factors were inapplicable or favored neither party. Benjamin
argues the court's analysis of best interest factors (a),
(b), (d), (e), (f), and (g), its decision to separate
siblings, and its final conclusion as to residential
responsibility, were clearly erroneous.
Benjamin argues the district court erred in finding factor
(a) favored neither party. Factor (a) requires the district
court to consider "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." N.D.C.C. §
14-09-06.2(1)(a). In its factual findings, the court stated,
"It is very evident both [Klundt] and ...