Lindberg v. Lindberg

[¶ 1] Chris Lindberg appeals from a divorce judgment awarding Sherri Lind-berg physical custody of the parties’ children and awarding Sherri Lindberg spousal support. We affirm the district court’s child custody award; however, we reverse and remand for farther proceedings because we conclude the district court failed to adequately explain its award of spousal support.

I

[¶ 2] Chris Lindberg and Sherri Lind-berg were married in 1994 and have three children from their marriage. The parties separated in 2004, when Sherri Lindberg and the children moved out of the marital home and in with Sherri Lindberg’s parents. In 2005, Chris Lindberg moved the court for a legal separation and Sherri Lindberg countersued for divorce.

[¶ 3] Following the divorce trial, the district court addressed custody of the children and found best interest factors (a), (b), (c), (f), (g), (h), (i) and (j) favored neither party and factors (d), (e), (k) and (m) favored Sherri Lindberg. The district court awarded physical custody of the children to Sherri Lindberg and granted Chris Lindberg liberal visitation. The court ordered Chris Lindberg to pay Sherri Lind-berg $750 a month in rehabilitative spousal support for four years.

II

[¶ 4] Chris Lindberg argues the district court erred in awarding sole physical custody of the parties’ minor children to Sherri Lindberg. “A district court’s award of custody is treated as a finding of fact and, on appeal, will not be reversed unless it is clearly erroneous under N.D.R.Civ.P. 52(a).” Wessman v. Wessman, 2008 ND 62, ¶ 12, 747 N.W.2d 85. “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.” Burns v. Burns, 2007 ND 134, ¶ 9, 737 N.W.2d 243 (quoting Gietzen v. Gabel, 2006 ND 153, ¶ 6, 718 N.W.2d 552). “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.” Jelsing v. Peterson, 2007 ND 41, ¶ 11, 729 N.W.2d 157. This is particularly relevant “for a difficult child custody decision involving two fit parents.” Id.

[¶ 5] In an initial custody determination, N.D.C.C. § 14-09-06.1 requires “the trial court [to] award custody of the child[ren] to the person who will better promote the best interests and welfare of the child[ren].” Klein v. Larson, 2006 ND 236, ¶ 7, 724 N.W.2d 565. In determining the best interests of the children, the “court must consider all [relevant] factors specified in N.D.C.C. § 14-09-06.2(1).” *257Schmidt v. Schmidt, 2003 ND 55, ¶ 6, 660 N.W.2d 196.

[¶ 6] Here, the district court considered the relevant best interest factors in making its custody determination. Specifically, the district court found factors (a), (b), (c), (f), (g), (h), (i) and (j) favored neither party and factors (d), (e), (k) and (m) favored Sherri Lindberg.

A

[¶ 7] Chris Lindberg argues the court erred in finding factor (a) favored neither party. Under factor (a), the court must look at “[t]he love, affection, and other emotional ties existing between the parents and child[ren].” N.D.C.C. § 14-09-06.2(l)(a). Chris Lindberg claims factor (a) should have been found in his favor because he continually hugs the children and tells them how much he loves them and how proud they make him. In determining factor (a) favored neither party, the court found that “[b]oth Christopher and Sherri love and show affection to their children.” The evidence demonstrates each party loves and shows affection to the children. The district court’s finding that factor (a) favored neither party is not clearly erroneous.

B

[¶ 8] Chris Lindberg argues the court erred in finding factor (b) favored neither party. When analyzing factor (b), the court must consider “[t]he capacity and disposition of the parents to give the child[ren] love, affection, and guidance and to continue the education of the child[ren].” N.D.C.C. § 14-09-06.2(l)(b). Chris Lindberg contends factor (b) should have favored him because of his strong commitment to being a good parent and because of his educational background. The district court found factor (b) favored neither party because “[b]oth parents have the capacity and disposition to give the children love, affection, and guidance and to continue the education of the children.” The evidence supports the district court’s finding because each party testified about the love they have for their children and the importance of the children’s education. The court’s finding factor (b) favored neither party is supported by the evidence and, therefore, is not clearly erroneous.

C

[¶ 9] Chris Lindberg argues the court erred in finding factor (c) favored neither party. Under factor (c), the court must look at “[t]he disposition of the parents to provide the child[ren] with food, clothing, medical care ... and other material needs.” N.D.C.C. § 14-09-06.2(l)(c). Chris Lindberg claims this factor should have favored him because he can better provide for the children since he is earning a master’s degree and working two jobs. Chris Lindberg also contends factor (c) should have favored him because Sherri Lindberg is underemployed and unambitious since she is content earning $240 a month and living with her parents. In analyzing factor (c), the district court found both parents were clearly capable and disposed to feed, clothe and care for the children’s medical needs. We decline to hold the parent whose earnings are greater is more disposed to provide the children with food, clothing, medical care and other material needs. The evidence demonstrates that when each party is responsible for caring for the children, each of them provides the children with food, clothing and the appropriate care. The district court’s finding that factor (c) favored neither party is not clearly erroneous.

D

[¶ 10] Chris Lindberg argues the court erred in finding factor (d) favored *258Sherri Lindberg. A proper analysis of factor (d) requires the court to consider “[t]he length of time the child[ren] [have] lived in a stable satisfactory environment and the desirability of maintaining continuity.” N.D.C.C. § 14 — 09—06.2(l)(d). We have also said that allowing the children to live in the same house is a valid consideration under factor (d). Shaw v. Shaw, 2002 ND 114, ¶ 7, 646 N.W.2d 693. In determining factor (d) favored Sherri Lindberg, the district court focused on the family’s numerous moves and on Chris Lindberg’s military deployments. The court found that “[u]p to their separation in 2004, the parties had lived together as a family for approximately five (5) of the ten (10) years of marriage.” The court found that since Chris Lindberg’s return from his deployment to Iraq in July 2007, he has lived in the family home and that since the parties separated in September 2004, Sherri Lindberg and the children have lived with her parents. The court determined factor (d) favored Sherri Lindberg because “[t]he children have lived in a stable satisfactory environment consistently with Sherri and it is desirable that that continuity be maintained.”

[¶ 11] Chris Lindberg argues the court erred in finding factor (d) favored Sherri Lindberg because the children have lived in the marital home longer than they have lived with Sherri Lindberg’s parents. We have previously held that in analyzing factor (d) the court must do more than total the number of days the children have lived with each party. Klein, 2006 ND 236, ¶ 13, 724 N.W.2d 565.

[¶ 12] Chris Lindberg also contends the court erred in its analysis of factor (d) because it penalized him for being absent due to military deployment. Factor (d) is backward looking. Therefore, the amount of time Chris Lindberg has spent away from the children for any reason, including that time due to his military obligations, is a relevant consideration under factor (d). See Eifert v. Eifert, 2006 ND 240, ¶¶8, 9, 724 N.W.2d 109. Since the parties’ first child was born in 1998, Chris Lindberg has been deployed over two and a half years. The evidence establishes that during all of the parties’ military separations and for the past four years, the children and Sherri Lindberg have lived with Sherri Lind-berg’s parents in their home. While we commend Chris Lindberg’s service to our country, the reality is his absence has limited the amount of time he has been able to provide the children with stability. The district court’s finding that factor (d) favored Sherri Lindberg was not clearly erroneous because the evidence demonstrates Sherri Lindberg has provided a more stable living environment for the children.

E

[¶ 13] Chris Lindberg argues the court erred in finding factor (e) favored Sherri Lindberg. When analyzing factor (e), the court must examine “[t]he permanence, as a family unit, of the existing or proposed custodial home.” N.D.C.C. § 14 — 09—06.2(1)(e). “Although overlap exists between factors (d) and (e), factor (e) uses a forward-looking approach to the stability of the family unit, its interrelations and environment, versus the backward-looking factor (d).” Eifert, 2006 ND 240, ¶ 11, 724 N.W.2d 109. Factor (e) focuses on the children’s future prospects for a stable family environment. Id. Interaction and interrelationships with parents and relatives are also considered under factor (e). Id.

[¶ 14] Chris Lindberg claims he should have received the advantage under factor (e) because he is living in the parties’ marital home. Chris Lindberg argues the court erred in finding factor (e) favored *259Sherri Lindberg because Sherri Lind-berg’s living situation is uncertain since she testified she was going to move out of her parents’ home but did not know where she was going to move to. In analyzing factor (e), the district court found:

“Although Christopher is considering terminating his employment with the Army so that he won’t be deployed again, he has not yet done so. Although Christopher has a girlfriend, he has not introduced her to the children.

“Sherri’s present home consists of her mother, father, herself, and the children. Sherri continues to be the primary parent for the children.”

The record reflects the children have lived with Sherri Lindberg and her parents since the parties separated in 2004. The evidence also establishes Chris Lindberg is still a member of the National Guard and could be deployed in the future. The district court’s finding that factor (e) favored Sherri Lindberg is not clearly erroneous because it is supported by the evidence.

F

[¶ 15] Chris Lindberg argues the court erred in finding factor (f) favored neither party. Factor © addresses “[t]he moral fitness of the parents.” N.D.C.C. § 14-09-06.2(1)©. In looking at factor ©, the court must examine “whether [a party’s] moral conduct might be detrimental to the best interests of the children].” Klein, 2006 ND 236, ¶ 16, 724 N.W.2d 565.

[¶ 16] Chris Lindberg claims he should have been given an advantage under factor © because Sherri Lindberg has a history of swearing in front of the children and of being verbally and physically abusive toward him. Chris Lindberg contends factor © should have favored him because he is religious and has strong moral values. The district court’s finding that “[b]oth parents are morally fit” is not clearly erroneous because no evidence exists suggesting either parent is immoral.

G

[¶ 17] Chris Lindberg argues the court erred in finding factor (g) favored neither party. Under factor (g) the court must look at “[t]he mental and physical health of the parents.” N.D.C.C. § 14-09-06.2(l)(g). Chris Lindberg contends factor (g) should have favored him because he his mentally and physically healthy and because he argues Sherri Lindberg has been diagnosed with bulimia, generalized anxiety, social phobia, major depressive disorder-recurrent, and dysthymia. We have previously stated the relevant inquiry under factor (g) “is not merely whether a parent has mental or physical health problems, but whether those health problems might adversely affect the parent’s ability to care for the child[ren].” McDowell v. McDowell, 2001 ND 176, ¶ 24, 635 N.W.2d 139. An actual adverse effect is not required before health is considered in the custody determination, but “more than conjecture and speculation is required.” Id.

[¶ 18] In determining factor (g) favored neither party, the district court stated that “Sherri has been diagnosed as borderline asymatic [sic] for which she uses an inhaler, and with mild depression with some anxiety for which she takes medication (Zoloft). Sherri’s ability to parent the children has not been adversely affected.” The district court’s finding that Sherri Lindberg’s depression and anxiety do not affect her ability to parent the children is based upon the court’s assessment of the credibility of the parties. We have consistently stated that on appeal, we give great deference to the trial court’s opportunity to observe and assess the credibility of the parties. Hanisch v. Osvold, 2008 ND 214, ¶ 11, 758 N.W.2d 421. Therefore, we con-*260elude the district court’s finding that factor (g) favored neither party is not clearly erroneous.

H

[¶ 19] Chris Lindberg argues the court erred in finding factor (h) favored neither party. Factor (h) requires the court to consider “[t]he home, school, and community record of the child[ren].” N.D.C.C. § 14-09-06.2(l)(h). Chris Lindberg contends this factor should have been found in his favor because the children’s grades have improved since he returned from Iraq. The district court determined factor (h) favored neither party because “[t]he children are doing well at school and in their activities in the community.” The court’s finding that factor (h) favored neither party is not clearly erroneous because no evidence supports Chris Lindberg’s allegation that the children were struggling in school prior to his return from Iraq.

I

[¶20] Chris Lindberg argues the court erred when it disregarded his testimony about the children’s preference to spend an equal amount of time with each parent. Under factor (i) the court can look at “[t]he reasonable preference of the child, if the court deems the child to be of sufficient intelligence, understanding, and experience to express a preference.” N.D.C.C. § 14-09-06.2(1)©. The district court found factor (i) was not applicable because “[t]he children are too young to express a reasonable preference.” Factor (i) does not contemplate having the parties or other witnesses testify about the children’s preference. Factor (i) only allows the court to consider the children’s preference if the court determines the children are able to express a preference. At the time of trial, the parties’ children were ten years old, nine years old and three years old. The district court properly disregarded the parties’ testimony about the children’s preference because the children were too young to express a reasonable preference.

J

[¶ 21] Chris Lindberg argues the court clearly erred in finding his allegations of abuse did not rise “to the level of a rebut-table presumption relating to child custody” under factor (j). Factor (j) requires the court to “consider evidence of domestic violence.” N.D.C.C. § 14-09-06.2(1)0*). Under factor (j), the district court found that “[e]ach party denies committing domestic violence on the other. There is no clear, credible evidence that domestic violence has occurred, or that it rises to the level of a rebuttable presumption relating to the custody of the children.” At trial, each party alleged the other party committed domestic violence. Since neither party presented any evidence demonstrating domestic violence had occurred, the district court’s finding that domestic violence either did not occur or if it did occur it did not rise to the level of a rebuttable presumption relating to the custody of the children is not clearly erroneous.

K

[¶ 22] Chris Lindberg argues the court erred in finding factor (k) favored Sherri Lindberg. Factor (k) requires the court to consider “[t]he interaction and interrelationship, or the potential for interaction and interrelationship, of the childfren] with any person who resides in, is present, or frequents the household of a parent and who may significantly affect the child[ren]’s best interests.” N.D.C.C. § 14 — 09—06.2(l)(k). Under factor (k) the court found:

“Christopher has a girlfriend but has not yet introduced her to the children. *261Christopher’s father and stepmother live in Arkansas in the winter and Saginaw, MN in the summer. Christopher’s brother, Timothy, also lives in Saginaw. Christopher is estranged from his mother.

“Sherri continues to reside with her parents. She also has extended family including her sister, and an aunt and uncle living in Fargo. The children get along well with Sherri’s parents, who help with the children and pick them up from school or daycare.”

Although the district court did not explicitly state it found factor (k) favored Sherri Lindberg, it can be inferred from the plain language of the court’s finding. Chris Lindberg claims this factor should have either favored him or favored neither party. The record reflects the children enjoy spending time with Chris Lindberg’s father and stepmother and with Sherri Lind-berg’s parents. However, the children spend most of their time with Sherri Lind-berg’s parents because they live with them. The district court did not clearly error in finding factor (k) favored Sherri Lindberg.

L

[¶ 23] Chris Lindberg argues the court erred in finding factor (m) favored Sherri Lindberg. Under factor (m), the court considers “[a]ny other factors ... relevant to a particular child custody dispute.” N.D.C.C. § 14-09-06.2(l)(m). The district court did not explicitly state it found factor (m) favored Sherri Lindberg, but the language of the court’s finding demonstrates it found this factor favored Sherri Lindberg. In finding factor (m) favored Sherri Lindberg, the district court focused on Sherri Lindberg being the consistent parent. The district court stated that “Sherri has lived in the same location and had the same part-time employment for nearly four years. She is the more constant, stable, and consistent parent.” The district court also discussed Sherri Lindberg’s willingness to allow Chris Lind-berg’s schedule to dictate his visitation schedule. Chris Lindberg argues the court erred in finding this factor favored Sherri Lindberg because the district court failed to consider Sherri Lindberg’s interference with visitation. Chris Lindberg claims Sherri Lindberg has interfered with his relationship and with his relatives’ relationship with the children by denying them visitation on numerous occasions. The record reflects Sherri Lindberg did interfere with Chris Lindberg’s visitation. However, the evidence also establishes the visitation problems subsided after the court entered its interim visitation order in December 2005. The evidence demonstrates Sherri Lindberg has been the constant parent in the children’s lives. The district court’s finding that factor (m) favored Sherri Lindberg is not clearly erroneous.

[¶ 24] The district court had a difficult decision to make in determining which of these two fit parents should be awarded custody. Since the evidence supports the district court’s award of custody to Sherri Lindberg, we conclude the court did not clearly err in analyzing the best interest factors under N.D.C.C. § 14-09-06.2. In addition, after reviewing the entire record, we are not left with definite and firm conviction a mistake has been made.

Ill

[¶ 25] Chris Lindberg argues the district court violated his constitutional right to parent his children when it denied him shared physical custody. Parents have a constitutional right to parent their children. Hoff v. Berg, 1999 ND 115, ¶ 15, 595 N.W.2d 285. Chris Lindberg’s constitutional right to parent his children was not violated because the court granted him *262liberal visitation. A parent’s constitutional right to parent his children does not include a constitutional right to shared physical custody of the children. We dismiss Chris Lindberg’s constitutional claim because his constitutional right to parent his children was not violated.

IV

[¶ 26] Chris Lindberg argues the district court’s award of spousal support is clearly erroneous because Sherri Lindberg testified she does not need spousal support, Sherri Lindberg does not plan on moving out of her parents’ home and he does not have the ability to pay spousal support.

[¶ 27] “Under N.D.C.C. § 14-05-24.1, a trial court in a divorce case ‘may require one party to pay spousal support to the other party for any period of time.’ ” Reineke v. Reineke, 2003 ND 167, ¶ 6, 670 N.W.2d 841(quoting Sommers v. Sommers, 2003 ND 77, ¶ 15, 660 N.W.2d 586). An award of spousal support is a “finding of fact which will not be set aside on appeal unless clearly erroneous.” Solem v. Solem, 2008 ND 211, ¶ 5, 757 N.W.2d 748. “A finding of fact is clearly erroneous if it is induced by an erroneous view of the law, if there is no evidence to support it, or if, after a review of the entire record, we are left with a definite and firm conviction a mistake has been made.” Krueger v. Krueger, 2008 ND 90, ¶ 7, 748 N.W.2d 671.

[¶ 28] In determining if an award of spousal support is appropriate, “the district court must consider the relevant factors under the Ruff-Fischer guidelines.” Overland v. Overland, 2008 ND 6, ¶ 16, 744 N.W.2d 67; Fischer v. Fischer, 139 N.W.2d 845 (N.D.1966); Ruff v. Ruff, 78 N.D. 775, 52 N.W.2d 107 (1952). Factors to consider under the Ruff-Fischer guidelines include:

“the respective ages of the parties, their earning ability, the duration of the marriage and conduct of the parties during the marriage, their station in life, the circumstances and necessities of each, their health and physical condition, their financial circumstances as shown by the property owned at the time, its value at the time, its income-producing capacity, if any, whether accumulated before or after the marriage, and such other matters as may be material.”

Krueger, 2008 ND 90, ¶ 8, 748 N.W.2d 671 (quoting Sommer v. Sommer, 2001 ND 191, ¶ 9, 636 N.W.2d 423). When making a spousal support determination, “the district court is not required to make specific findings on each factor, provided we can determine the reasons for the court’s decision.” Krueger, at ¶ 8. “Spousal support awards must also be made in consideration of the needs of the spouse seeking support and of the supporting spouse’s needs and ability to pay.” Overland, at ¶ 16.

[¶ 29] The district court ordered Chris Lindberg to pay Sherri Lindberg spousal support. In determining Sherri Lindberg was entitled to spousal support, the district court stated, “The Court finds that Sherri is in need of spousal support and Christopher has the ability to pay. Christopher shall pay to Sherri the amount of $750.00 per month for a period of 48 months.” The district court’s opinion contains some Ruff-Fischer factor findings. At the time of trial, Christopher Lindberg was thirty-seven years old and Sherri Lindberg was thirty-nine years old. In analyzing Sherri Lindberg’s health and earning ability, the court found Sherri Lindberg “is in good health and able to work but is currently underemployed and capable of earing [sic] $10.00 to $13.00 per hour or slightly over $20,000.00 per year.” The court stated Sherri Lindberg has an associate degree in nursing, “but has not been employed as an *263LPN for approximately 13 years.” The court found Chris Lindberg was “in good health and able to work.” The court stated Chris Lindberg has a “four-year degree in Electrical Engineering from North Dakota State University and is currently working on his Master’s Degree at University of Mary.”

[¶ 30] The court found Sherri Lindberg “has gross earnings of $240.00 per month” and Chris Lindberg has gross monthly earnings of $5,620. In looking at the necessities of each party, the court determined Chris Lindberg’s monthly expenses totaled $2,510. The court found that Sherri Lindberg “is currently living in her parents home and has no expenses relating to mortgage payments, utilities, etc. However, Sherri testified that she plans on moving out of her parents home once the divorce is finalized. Therefore, the Court finds Sherri’s anticipated monthly living expenses to be $2,915.00.”

[¶ 31] Although the district court made findings under some of the Ruff-Fiseher factors, it did not provide analysis of Sherri Lindberg’s underemployment other than that she is capable of earning $20,000 per year, nor her need for spousal support or Chris Lindberg’s ability to pay spousal support. We have said, “We will not set aside the trial court’s determinations on property division or spousal support for failure to explicitly state the basis for its findings if that basis is reasonably discernible by deduction or inference.” Routledge v. Routledge, 377 N.W.2d 542, 545 n. 1 (N.D.1985); Meyer v. Meyer, 2004 ND 89, ¶ 23, 679 N.W.2d 273 (Maring, J., dissenting in part and concurring in part). We are unable to discern the basis for the district court’s spousal support decision because the court’s opinion contains contradictory findings.

[¶ 32] We assume the district court awarded Sherri Lindberg spousal support based upon its finding that she was going to move out of her parents’ home after the divorce became final and that she would incur $2,915 in monthly expenses. The district court’s finding Sherri Lindberg plans on moving out of her parents’ home once the divorce is finalized is not supported by the evidence.

[¶ 33] At trial, when Sherri Lindberg was asked if she felt she needed spousal support, she stated, Wes, should I move out, which I will be doing eventually.” On cross-examination, Sherri Lind-berg was asked about her intentions on moving out of her parents’ home.

Q. And I think your words on direct was that you may eventually be moving?

A. Yes.

Q. So it sounds like you may not move or you may move, it’s uncertain at this time?

A. Yes.

Q. So you haven’t made any decisions about that?

A. No, I just checked into stuff for down the road. Checked into the nursing part of it too.

Q. And in prior affidavits submitted to this Court you’ve never indicated any desire or intent to move from your parent’s house have you?

A. No.

Q. In fact, you’ve said that you think it’s a good idea for the children to continue to live in your parent’s home, did you not.

A. Yes, I do.

Q. So you think it would not be in the children’s best interests for you to move from the home?

A. Well, right now I can be with them and I can work where I’m working so I can be a mom to them, and they don’t have to be in daycare.

*264Q. And your parent’s want you to continue to live with them, do they not?

A. Yes. That was always my dream to stay home with my children, to be a wife, and to have children and stay home with them and I’m very blessed that it’s worked out this way.

Q. If you agree that it would be best for your children to remain in your parents home, under what circumstances would you ever move?

A. I don’t know, unless mom and dad want me to go, I don’t know, I mean, it’s just something to think about. I don’t know if they will always be around.

Q. If you don’t move, you don’t need any spousal support, isn’t that true?

A. Yes, probably, yes.

Q. You’ve been in your parents home for about three and a half years, correct?

A. Yes.

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Q. Your parents home provides a stable and routine environment, I think you indicated on direct?

A. Yes.

Q. And you believe that disrupting that routine would not be good for them?

A. Yes. And I thank God that my family doesn’t ask for rent because there’s many that do, and that’s something they haven’t asked for that they probably should be.

Sherri Lindberg’s testimony contradicts the court’s finding that Sherri Lindberg “plans on moving out of her parents home once the divorce is finalized.” Further, when the court analyzed Sherri Lindberg’s earning ability, the district court determined Sherri Lindberg was underemployed. A finding of underemployment is a consideration in determining a party’s need for spousal support. We are unable to discern if the district court considered Sherri Lindberg’s underemployment when it determined her need for spousal support. Without further explanation regarding Sherri Lindberg’s need for spousal support, we are unable to determine whether the district court’s award of spousal support is clearly erroneous. We reverse and remand to the district court for further proceedings regarding Sherri Lindberg’s need for, and Chris Lindberg’s ability to pay, spousal support.

V

[¶ 34] The trial judge who presided over this matter has retired. It is therefore necessary, and we direct, that this case be reassigned by the presiding judge of the judicial district. We note the successor judge must comply with the requirements of Rule 63, N.D.R.Civ.P., regarding certification of familiarity with the record and the conduct of any further proceedings.

VI

[¶ 35] We affirm the district court’s judgment awarding custody to Sherri Lindberg, and we reverse and remand the district court’s spousal support award for further proceedings consistent with this opinion.