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Klundt v. Benjamin

Supreme Court of North Dakota

June 27, 2019

James F. Klundt, Plaintiff and Appellee
v.
Rebecca L. Benjamin, Defendant and Appellant

          Appeal from the District Court of Bottineau County, Northeast Judicial District, the Honorable Michael P. Hurly, Judge.

          Erin M. Conroy, Bottineau, ND, for plaintiff and appellee.

          Caitlyn A. Pierson, Minot, ND, for defendant and appellant.

          OPINION

          Jensen, Justice.

         [¶1] 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.

         I.

         [¶2] 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.

         [¶3] 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.

         [¶4] 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.

         [¶5] 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.

         II.

         [¶6] 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.

         [¶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. 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.

         [¶8] 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 ...


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