from the District Court of Cass County, East Central Judicial
District, the Honorable Steven L. Marquart, Judge.
M. Gahner, Fargo, ND, for plaintiff and appellant; submitted
Matthew Thomas appeals from a civil judgment granting the
parties joint residential responsibility of the children. We
affirm in part and remand while retaining jurisdiction under
N.D.R.App.P. 35(a)(3) with instructions that the district
court make specific findings.
Matthew and SummerLee Thomas were married in 2008. Matthew
and SummerLee have two children, H.M.T., born in 2008, and
C.M.T., born in 2009. In May 2018 Matthew initiated a divorce
proceeding, citing irreconcilable differences. Following
trial in February 2019, the district court issued its
findings of fact, conclusions of law, and order for judgment.
A judgment was entered accordingly, granting an absolute
decree of divorce, distributing assets, and giving SummerLee
and Matthew joint residential responsibility of H.M.T. and
Matthew appeals, arguing the district court erred when
applying the best interest factors.
We exercise a limited review of child custody awards. A
district court's decisions on child custody, including an
initial award of custody, are treated as findings of fact and
will not be set aside on appeal unless clearly erroneous. 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 the reviewing court, on the entire evidence, is
left with a definite and firm conviction a mistake has been
made. Under the clearly erroneous standard of review, we do
not reweigh the evidence or reassess the credibility of
witnesses, and we 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. A choice between two permissible views of the weight
of the evidence is not clearly erroneous, and our deferential
review is especially applicable for a difficult child custody
decision involving two fit parents.
Dickson v. Dickson, 2018 ND 130, ¶ 7, 912
Matthew argues the best interest factors (a) and (c) are not
supported by the evidence. Section 14-09-06.2(1)(a) and (c),
N.D.C.C., provides in relevant part:
a. 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
. . . .
c. The child's developmental needs and the ability of
each parent to meet those needs, both in the present and in
"A district court has substantial discretion in making a
custody decision, but it must consider all of the factors
listed in N.D.C.C. § 14-09-06.2(1)(a)-(m)." Cox
v. Cox, 2000 ND 144, ¶ 10, 613 N.W.2d 516. "A
separate finding is not required for each statutory factor,
but the court's findings should be stated with ...