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Thomas v. State

Supreme Court of North Dakota

December 12, 2019

Matthew Adam Thomas, Plaintiff and Appellant
v.
SummerLee Candy Thomas, Defendant and State of North Dakota, Statutory Real Party in Interest

          Appeal from the District Court of Cass County, East Central Judicial District, the Honorable Steven L. Marquart, Judge.

          Tasha M. Gahner, Fargo, ND, for plaintiff and appellant; submitted on brief.

          OPINION

          MCEVERS, JUSTICE.

         [¶1] 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.

         [¶2] 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 C.M.T.

         [¶3] 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 N.W.2d 321.

          I

         [¶4] 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 guidance.
. . . .
c. The child's developmental needs and the ability of each parent to meet those needs, both in the present and in the future.

         [¶5] "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 ...


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