Edison v. Edison

                                                                                   FILED
                                                                           IN THE OFFICE OF THE
                                                                        CLERK OF SUPREME COURT
                                                                               AUGUST 2, 2023
                                                                         STATE OF NORTH DAKOTA




                  IN THE SUPREME COURT
                  STATE OF NORTH DAKOTA

                                

Signe Ann Edison,                                       Plaintiff and Appellee
      v.
Jeffrey Bryce Edison,                               Defendant and Appellant



                                No. 20220290

Appeal from the District Court of Cass County, East Central Judicial District,
the Honorable Tristan J. Van de Streek, Judge.

REVERSED AND REMANDED.

Opinion of the Court by Tufte, Justice, in which Chief Justice Jensen and
Justice Crothers joined. Justice McEvers filed an opinion concurring in part
and dissenting in part, in which Justice Bahr joined. Justice Bahr filed an
opinion concurring in part and dissenting in part, in which Justice McEvers
joined.

Michael L. Gjesdahl, Fargo, North Dakota, for plaintiff and appellee.

Benjamin B. Freedman, Fargo, North Dakota, for defendant and appellant.

Jacquelyn S. Lutz, Woodbury, Minnesota, and Linda R. Allen, St. Paul,
Minnesota, amicus curiae.
                               Edison v. Edison
                                No. 20220290

Tufte, Justice.

[¶1] Jeffrey Edison appeals from a divorce judgment and an amended
judgment awarding primary residential responsibility for two children to Signe
Edison, arguing error in the form of gender bias and in the court’s finding that
Jeffrey Edison was underemployed for purposes of child support. Signe Edison
argues that Jeffrey Edison waived his gender bias argument and, in the
alternative, that the trial court’s judgment was not based on gender bias.
Jeffrey Edison also requests this Court to award the parties equal residential
responsibility and impose a “50/50 parenting plan” or reassign the case on
remand to a different trial judge. We reverse and remand with instructions to
reconsider the best interests of the children under N.D.C.C. § 14-09-06.2(1) and
to recalculate any child support obligations.

                                        I

[¶2] Signe Edison argues Jeffrey Edison waived his gender bias argument
because he did not present this issue to the district court when he brought a
post-judgment motion “based upon Rule 59 (New Trial; Amending Judgment).”
Whether this issue is waived on appeal depends on whether the motion sought
a new trial under N.D.R.Civ.P. 59(b). When a party moves for a new trial at the
district court, the moving party is later limited on appeal to the grounds
presented to the trial court, even if the appeal is also from the judgment itself.
Larson v. Kubisiak, 

, 

; see also Prairie Supply,
Inc. v. Apple Elec., Inc., 

, 

; Riddle v. Riddle,

, 

. For purposes of Rule 59, a “new trial” is
defined as “a re-examination of an issue of fact in the same court, after a trial
and decision by a jury, court, or referee.” N.D.R.Civ.P. 59(a).

[¶3] Central to the waiver question here is the distinction between a Rule
59(b) request for a “new trial,” meaning a “re-examination of an issue of fact”
and a request under Rule 52(b) and 59(j) for amended findings, both of which
ask the court to change its mind on a finding of fact. A “new trial” is generally
understood to be a “wholly new trial … unfettered by the rulings, pro or con,

                                        1
made at the first trial, and with the right to have new rulings on evidence….”
58 Am. Jur. 2d New Trial § 1.

[¶4] Under N.D.R.Civ.P. 59(j), a party may move to amend a judgment, which
requests a court to “reconsider its judgment and correct errors of law.” Flaten
v. Couture, 

, 

 (citing Tuhy v. Tuhy, 

, 

); see generally 47 Am. Jur. 2d Judgments § 636. When
a party moves under N.D.R.Civ.P. 59(j) to alter or amend a judgment, it is not
limited in its appeal to a review of the grounds the party presented in its
motion to the trial court, unlike when a party moves under N.D.R.Civ.P. 59(b)
for a new trial. In re N.C.C., 

, 

. The
distinguishing factor between these two motions is that “[u]nlike a
N.D.R.Civ.P. 59(b) motion for a new trial, a N.D.R.Civ.P. 59(j) motion to alter
or amend a judgment does not usually request a reexamination of issues of
fact.” 

 “Rather, a motion to alter or amend ‘may be used to ask the court to
reconsider its judgment and correct errors of law.’” 

[¶5] A court may also correct a “clerical mistake or a mistake arising from
oversight or omission whenever one is found in a judgment, order, or other part
of the record” under N.D.R.Civ.P. 60(a). Application of N.D.R.Civ.P. 60(a) is
appropriate when the movant claims one of the following occurred: a “clerical
mistake, oversight, or omission in the judgment or amended judgment.”
McWethy v. McWethy, 

 (N.D. 1985). Under N.D.R.Civ.P.
60(b)(1), a court may relieve a party from a “mistake, inadvertence, surprise,
or excusable neglect.”

[¶6] The motion in question was simply titled “motion.” Neither the motion
nor the brief in support requested a “new trial” or cited N.D.R.Civ.P. 59(b). Each
of the four citations to Rule 59 in the brief was specifically to N.D.R.Civ.P. 59(j),
which provides for motions “to alter or amend a judgment.” In the body of the
motion, Jeffrey Edison stated he “moves the Court for an amending the
findings and/or Judgment entered June 24, 2022, or for relief from Judgment.”
To inform the adversary of the nature of the motion and the relief sought, a
movant has the burden to accurately label a motion. N.C.C., 

.



                                         2
On appeal we “may look to the substance of the motion to determine its proper
classification.” Id.; see also Flaten, 

.

[¶7] Jeffrey Edison’s motion sought the following relief:

      a. Correcting the error of awarding Signe the property in items 26,
         27, 29, 31, 101, and 102 in Exhibit A attached to the Judgment;
      b. Including a vacation schedule as required by N.D.C.C. 14-09-
         30(2)(d)(1);
      c. Correcting the error of having Memorial Day and Labor Day
         holidays end on the night prior to the holidays.
      d. Imposing a proximity restriction on Signe.
      e. Correcting Jeff ’s child support obligation.

Each request asked the court to amend the findings or judgment or correct
what Jeffrey Edison asserted were errors or omissions in the judgment. See
McWethy, 

. Nowhere does he expressly request a “new trial”
or “a re-examination of an issue of fact,” which would invoke the language of
the definition of “new trial.” Each request for relief sought correction of a
purported error or omission. Van Sickle v. Hallmark & Assocs., Inc., 

, 

; N.C.C., 

; McWethy, 

.

[¶8] The substance of the motion and Jeffrey Edison’s argument to the district
court invoked the court’s authority under N.D.R.Civ.P. 52(b), 59(j), 60(a), and
60(b)(1) but not N.D.R.Civ.P. 59(b). Jeffrey Edison is not limited on appeal to
the arguments he made in the motion. Therefore, he did not waive his gender
bias argument, and we will now consider the merits of his argument.

                                       II

[¶9] Jeffrey Edison argues that the district court erred in awarding Signe
Edison primary residential responsibility on the basis of gender bias. We have
explained the standard of review for a trial court’s award of primary residential
responsibility.

      [The district] court’s award of primary residential responsibility is
      a finding of fact, which will not be reversed on appeal unless it is


                                       3
      clearly erroneous or it is not sufficiently specific to show the factual
      basis for the decision. 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. Under the clearly erroneous standard, we
      do not reweigh the evidence nor 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. The district
      court has substantial discretion in making a custody
      determination, but it must consider all of the best-interest factors.
      Although a separate finding is not required for each statutory
      factor, the court’s findings must contain sufficient specificity to
      show the factual basis for the custody decision.

Rustad v. Baumgartner, 

, 

 (quoting Zuraff v.
Reiger, 

, 

).

[¶10] This Court has explained the standard for custody determinations at the
district court.

            In an initial custody decision, the trial court must award
      custody of the child to the person who will better promote the best
      interests and welfare of the child. Neither the fitness of the parents
      nor fairness to the parents is the appropriate test for determining
      custody, but rather the predominant consideration is the best
      interests of the child.

Klein v. Larson, 

, 

 (cleaned up). “For the
purpose of parental rights and responsibilities,” a district court determines the
best interests of a child by considering the factors found in section 14-09-
06.2(1), N.D.C.C. See also Rustad v. Rustad, 

, 

(stating that a court must consider all of the relevant factors under N.D.C.C.
§ 14-09-06.2(1)).

[¶11] North Dakota law broadly prohibits discrimination on the basis of sex.
N.D.C.C. § 14-02.4-01. When determining primary residential responsibility
“[b]etween the mother and father, whether married or unmarried, there is no


                                         4
presumption as to whom will better promote the best interests and welfare of
the child.” N.D.C.C. § 14-09-29(1). The tender years doctrine, which held that
“children of ‘tender years,’ regardless of their gender, belong with their
mother,” was long ago replaced with a principle of neutrality between mothers
and fathers. Rustad, 

 (“There is no gender bias in deciding
issues related to parental rights and responsibilities regardless of the child’s
age.”); see also McDowell v. McDowell, 

, 

;
Leppert v. Leppert, 

 (N.D. 1994).

[¶12] We have previously considered and rejected arguments relying on
stereotypes and generalizations about mothers and fathers. Kasprowicz v.
Kasprowicz, 

, 

. In Kasprowicz, the mother
argued: “the entire evolution of human biology and the record of human history
to date, supports the concept that the natural mother should be the primary
custodian of a small child, unless there are extraordinary circumstances.” 

We rejected this as “outmoded,” “discredited,” and employing “a form of gender
bias.” 

 (applying predecessor statute repealed in 2009 which provided
“husband and father and wife and mother have equal rights with regard to the
care, custody, education, and control of the children of the marriage”).

[¶13] We have said any reliance by a district court on “sex-based rules that are
… based on sexual stereotypes” is “troubling.” Rustad, 

. In
Rustad, the court made a single statement among extensive discussion of the
best interest factors that a mother was “more aware of her daughter’s needs,
and is in a better position to explain a female’s needs.” 

 We affirmed because
the findings as a whole showed the statement was not a significant basis for
the court’s decision. Id. at ¶¶ 12-17.

[¶14] In Rustad v. Baumgartner, 

, 

, we affirmed a
restriction on the father’s overnight parenting time with two young children.
Because it appeared the mother’s decision to breastfeed may have been a
factor, Justice McEvers wrote separately to emphasize there should be “no
gender bias in deciding issues relating to parenting rights,” and a mother
cannot “undermine the father’s parenting time by choosing to breastfeed.” 

                                       5
at ¶¶ 13-14 (citing Rustad, 

) (McEvers, J., concurring
specially).

[¶15] Here, the district court analyzed the best interests of the children under
N.D.C.C. § 14-09-06.2(1)(a)-(m) and found three factors—(a), (c), and (m)—
favored Signe Edison regarding E.E., and two factors, (c) and (m), favored her
regarding H.J.E. The court found that all other factors were neutral.

[¶16] Under factor (a), the district court found, regarding love and emotional
ties, there was no distinction between the parents for H.J.E., who was no
longer breastfeeding. But the court found that there were “stronger emotional
ties” between E.E., a newborn, and Signe Edison because of breastfeeding. The
court found, “The bond between a breastfeeding mother and a newborn is likely
as strong a bond as can be established between two human beings. This is no
fault of Jeffrey’s. Rather, it is an inescapable biological reality.” The court also
found the children’s interests would be better served by Signe Edison’s superior
ability to guide, due to her education and experience.

[¶17] Regarding (c), the court found Signe Edison could better meet the
children’s developmental needs because of her education and experience as a
trained elementary school teacher. Next, regarding E.E., the infant, the court
found that (c) favored Signe Edison because she breastfed, which is more
beneficial over formula for E.E.’s immune system and increases E.E.’s and
Signe Edison’s emotional bond. The court mentioned pumping breast milk “as
a short-term substitute to natural feeding” but rejected pumping based on
testimony that it would stimulate less production. The court found: “Only
Signe is capable of breast-feeding.… These biological realities are unavoidable
and must be strongly considered by the Court.”

[¶18] The district court weighed factor (m), “[a]ny other factors,” in favor of
Signe Edison. Regarding E.E., the court took account of the fact that Signe
Edison continues to breastfeed, which the court weighed in favor of her because
of both practical and emotional considerations. The court wrote, “Yes, women
are able to use mechanical pumps to help supply the child’s needs. However, a
pump approach bypasses the psychological and emotional benefits of at-the-
breast feeding. Moreover, natural feeding encourages production, while

                                         6
mechanical pumps do not encourage production as well as natural feeding.”
The court also found that joint residential responsibility would be adverse to
the children’s best interests because it would cause discord and further
litigation. The fact that E.E. was still breastfeeding, the court found, also made
joint residential responsibility adverse to E.E.’s best interests.

[¶19] We conclude these findings regarding E.E.’s best interests are clearly
erroneous because they misapply N.D.C.C. § 14-09-29(1). The court’s reasoning
for awarding Signe Edison primary residential responsibility over E.E.
depended significantly on Signe’s breastfeeding E.E. The court wrote, “The
Court’s ultimate decision endeavors to be respectful to, and accommodate,
Signe’s feeding of E.E., and its benefits to her. This weighs heavily in favor of
Signe.” The court found that its award “should not be understood to be a
criticism of Jeffrey’s parenting abilities or desire. Rather the Court is
confronted with a biological reality that E.E. is a breast-feeding infant in the
midst of an unprecedented formula shortage.”

[¶20] These findings are strikingly similar to the “outmoded,” “discredited,”
and gender-biased argument rejected in Kasprowicz. 

. Unlike
Rustad v. Baumgartner, where breastfeeding may have been a factor, and
unlike Rustad v. Rustad, where a single, gender-biased comment by the court
was insignificant, here the significance of breastfeeding was repeatedly
emphasized by the court. The district court found that E.E. had a loving
relationship with both parents but had stronger emotional ties with Signe
Edison as a result of breastfeeding. The finding is based on no other facts or
evidence. The court’s reasoning assumed that a mother is better suited to care
for an infant and able to have a deeper bond solely as a result of her ability to
breastfeed. The assumption that by breastfeeding, a mother necessarily has a
deeper bond with a child compared to the father raises an appearance of bias
on the basis of sex. This reasoning is inconsistent with N.D.C.C. § 14-09-29(1).

[¶21] Our recognition that the law requires equal treatment of fathers and
mothers does not deny that there may be differences between mothers and
fathers at the group level. The law requires specific findings about the
individual parents, not application of generalizations about what may be


                                        7
generally true of men and women. To illustrate, the court’s findings would have
been similarly erroneous if it had reasoned that because, as a group, men
generally have superior physical strength compared to women, the father
would better provide a safe environment under factor (b), N.D.C.C. § 14-09-
06.2(1). The prohibited reasoning runs like this: (1) a woman is more likely
than a man to have a particular positive characteristic relating to a best
interest factor; (2) this parent is a woman; (3) therefore the best interest factor
weighs in favor of this parent because she is a woman.

[¶22] Our dissenting colleagues are “concern[ed] that the district court made
some findings that appear to be based generally on breastfeeding women and
their babies,” but point to evidence in the record that, absent the reliance on
generalizations about women, may support the ultimate finding on primary
residential responsibility. Here, the district court’s reasoning relies
significantly on generalizations about differences between mothers and
fathers. Thus, its finding on primary residential responsibility is clearly
erroneous because it was induced by an erroneous view of the law. As an
appellate court, we do not attempt to excise improper factors from proper
factors, reweigh evidence, or speculate whether the district court would have
reached the same finding without the improper factors weighing on one side of
the balance. Dalin v. Dalin, 

 (N.D. 1994) (reasoning that
generalizations about fathers as a group “would be relying on an improper
factor to determine custody”); Klein v. Larson, 

, 

 (reversing for clear error where district court applied erroneous
interpretation of best interest factor); Thatcher v. Hanover Ins. Grp., Inc., 

 (8th Cir. 2011) (stating that a court abuses its discretion “when
an irrelevant or improper factor is considered and given significant weight”).

[¶23] The district court’s findings in support of its award of primary residential
responsibility to Signe Edison were heavily influenced by improper sex-based
generalizations. We conclude the court’s decision to award Signe Edison with
primary residential responsibility, with respect to both children, was clearly
erroneous. We remand for the district court to make findings under a correct
application of the law. O’Hara v. Schneider, 

, 

 (remanding for findings under correct interpretation of the best interests


                                        8
factors); see also Ritter, Laber & Assocs., Inc. v. Koch Oil, Inc., 

, 

 (remanding for findings on class certification where
district court misapplied the law on two factors, despite observation that
“[m]ost of the court’s findings are affirmable”); Klein, 

(Crothers, J., concurring in part and dissenting in part) (“A misapplication of
law generally warrants reversal of the judgment and remand so the district
court can apply relevant facts to the law as clarified by this Court.”).

                                      III

[¶24] Jeffrey Edison argues this Court should not only reverse, but also award
the parties equal residential responsibility and impose a 50/50 parenting plan.
In Law v. Whittet, this Court reversed the district court award of joint
residential responsibility and awarded Law primary residential responsibility,
but it remanded and directed the district court to set “an appropriate parenting
time.” 

, 

. Whether an appellate court should
make such awards has divided this Court. See id. at ¶ 28 (Crothers, J.,
specially concurring) (citing Klein v. Larson, 

 (Crothers,
J., concurring in part and dissenting in part)). When considering a matter
under our appellate jurisdiction, we do not engage in fact finding. That role is
for the district court. “District courts are in a superior position to assess
credibility of witnesses and weigh evidence.” State v. Boehm, 

,

 (citing State v. DeCoteau, 

, 

).
“Under the clearly erroneous standard, we do not reweigh the evidence nor
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.” Rustad, 

.
We leave this task for the district court on remand.

[¶25] Jeffrey Edison also requests that this Court reassign this case to a
different district court judge on remand. “The purpose of reassignment is, in
part, to preserve the integrity of the court, to protect litigants from bias, and
to ensure that allegations of prejudice do not affect fair administration of the
law.” T.F. James Co. v. Vakoch, 

, 

. This Court
weighs several “competing interests” when deciding whether to remove a
district court judge from a case. Id. at ¶ 19. This Court retained a judge where

                                       9
a record was voluminous and there had been an exceptional number of
proceedings, where having experience working on the case was beneficial,
where the trial judge may have been confused about the law, and where the
allegations of bias were of “subconscious bias” rather than “actual bias.” Id. On
the other hand, “when there is an allegation of prejudice presented to this
court, we favor granting the change of judge in a situation where the judge
would be presiding at the trial on the merits.” Blomquist v. Clague, 

 (N.D. 1980) (quotations omitted); United Hosp. v. Hagen, 

 (N.D. 1979); see also Slaubaugh v. Slaubaugh, 

(N.D. 1991) (“Blomquist and Hagen suggest that we apply a stricter standard
when allegations of prejudice are made against a judge who will try the case
without a jury upon retrial.”).

[¶26] Blomquist and Hagen are distinguishable from this case. In Blomquist,
the judge denied Blomquist’s writ of mandamus without holding an evidentiary
hearing, which we concluded was required under the circumstances. 

. Without agreeing there was “any substance to the
allegations of prejudice,” we directed another judge to preside at the
evidentiary hearing on remand. 

. In Hagen, the judge denied Hagen’s
demand for a jury trial. 

. We wrote “when there is an
allegation of prejudice presented to this Court we favor granting the change of
judge when the judge has denied the demand for a jury trial and would then be
presiding at the trial on the merits.” 

 (emphasis added). Jeffrey
Edison has not demonstrated the judge denied him an evidentiary hearing or
trial as the judges did in Blomquist and Hagen.

[¶27] Although mentioned in a concurrence, this Court has never directly
addressed the extent to which the required neutrality between mothers and
fathers may limit a court’s consideration of breastfeeding when determining
parental responsibility. See Rustad v. Baumgartner, 

,

 (McEvers, J., concurring) (stating, “I do not want this opinion
to send the signal that the mother can undermine the father’s parenting time
by choosing to breastfeed[,]” and noting, “[t]here should be no gender bias in
deciding issues relating to parenting rights and responsibilities regardless of
the children’s age”).


                                       10
[¶28] The factors found in T.F. James favor retention of the district court
judge, and the facts in that case are similar to the case before us today. 

. In T.F. James, the district court “misinterpreted this Court’s
opinion” or “may have been confused by the conciliatory language of our earlier
opinion.” 

. Under those facts, we declined to assign a
different judge, explaining our new opinion “provide[s] explicit direction to the
district court. On balance, the trial judge’s familiarity with the case, our
explicit instructions, and the ‘subconscious’ nature of any alleged bias favor
retention rather than reassignment.” Id. at ¶ 20. We have declined to reassign
a case to a different judge on remand when the judge’s initial decision was
based on a misapplication of the law. See Dietz v. Dietz, 

, 

. Today we clarify the law to be applied on remand. Nothing in the
record indicates the judge cannot appropriately apply this decision on remand.

[¶29] “Determining whether or not to assign a different judge requires delicate
balancing of numerous competing interests.” T.F. James, 

.
One factor we consider when determining whether to assign a different judge
on remand is the extent of the proceedings below and the judge’s familiarity
with them. 

 The assigned judge has presided over this case since February
2021. During that time, he addressed several motions and entered numerous
orders, including an Interim Order, a Supplemental Interim Order, an
Amended Supplemental Interim Order, a Second Amended Supplemental
Interim Order, and a Third Amended Supplemental Interim Order. He also
presided over a three-day trial, addressed post-trial motions, and entered
Findings of Fact, Conclusions of Law, and Order for Entry of Judgment and
Findings of Fact, Conclusions of Law, and Amended Order for Entry of
Judgment. Having presided throughout the course of the proceedings, “the
district court judge has particular insight that cannot be replicated by a
replacement.” 

 The judge’s knowledge of and insight regarding the case and
parties will be lost if a new judge is assigned. For example, on remand the
assigned judge can address the issues on the record, having presided over the
entirety of this proceeding, including the three-day trial. A newly assigned
judge may have to hold a second trial to hear and determine witness credibility
and other issues. See State v. Nakvinda, 

, 

(“When judging the credibility of witnesses, reading a cold transcript is no

                                       11
substitute for hearing and observing witnesses as they testify.” (cleaned up));
N.D.R.Civ.P. 63 (placing duty on replacement judge to certify familiarity with
the record and determine the case may be completed without prejudice to the
parties). It is not in the interest of the children or either parent to delay this
matter so a second trial can be held.

[¶30] Retention of the district court judge is warranted because the district
court judge has experience with the record and simply misapplied the law, and
Jeffrey Edison has not demonstrated bias by the judge.

                                       IV

[¶31] Jeffrey Edison argues that Signe Edison’s brief and the amicus curiae
brief cite to facts and authorities that are not part of the record in the district
court. He argues we must ignore them on appeal under N.D.R.App.P. 10(a). We
agree in part and disagree in part.

[¶32] The authorities that Jeffrey Edison argues we must disregard include
treatises published by John Locke and Sir William Blackstone, a law review
article, a report by the Surgeon General, a report by the U.S. Department of
Health and Human Services, and several articles published in medical
journals.

[¶33] A record is composed of the following:

      (a) Composition of Record on Appeal. The following items
      constitute the record on appeal:
          (1) the documents and exhibits filed in the district court,
          including the notice of appeal as filed in Odyssey by the clerk
          of the supreme court;
          (2) an electronic copy of the transcript in portable document
          format (PDF), if any; and
          (3) certification prepared by the clerk of district court stating
          what constitutes the record filed in the district court.

N.D.R.App.P. 10(a). A trial court may take judicial notice of adjudicative facts
that are not in the record. N.D.R.Ev. 201(a). A court may take judicial notice if
a fact “is not subject to reasonable dispute because it … can be accurately and


                                        12
readily determined from sources whose accuracy cannot reasonably be
questioned.” N.D.R.Ev. 201(b)(2). On appeal, we have discretion to take judicial
notice when such a request was not made in the trial court. Senske Rentals,
LLC v. City of Grand Forks, 

, 

 (citing Workforce
Safety & Ins. v. Oden, 

, 

). We have generally
declined to consider evidence that was not part of the trial court’s record.
Hillerson v. Bismarck Pub. Sch., 

, 

; Interest of
R.H., 

, 722 (N.D. 1978).

[¶34] This Court frequently considers legal authority identified during its own
research—we are not limited to the arguments or authorities cited by the
parties. State v. Holecek, 

 (N.D. 1996) (stating it is “not
only our authority, but our duty to decide the applicability of relevant statutes
to legal controversies whether or not the parties have pointed us to them or
argued a particular construction”). On appeal, we encourage parties to cite
pertinent legal authority, whether or not cited to the district court. Usually,
legal authorities cited to a court are legislative facts that fall outside the scope
of N.D.R.Ev. 201. City of Bismarck v. McCormick, 

, 

 (explaining the difference between judicial notice of “adjudicative
facts” subject to proof by formal introduction of evidence and “legislative facts”
that aid in the interpretation and application of law and may be freely noticed
outside the procedure required by N.D.R.Ev. 201). We may decline review of
new issues on appeal, but we do not reject consideration of newly identified
legal authority relating to issues preserved for appeal. The citations to Locke,
Blackstone, and the law review articles are appropriate in support of
legislative facts, and we reject the argument that we may not consider them
on appeal.

[¶35] In contrast, government reports and medical journals, to the extent
offered to support or oppose factual determinations by the district court, are
matters that should be presented to the district court in the first instance. We
will not judicially notice or give any consideration to these cited references.




                                        13
                                       V

[¶36] Jeffrey Edison argues the district court erred in finding that he was
underemployed for purposes of child support and for imputing income to him.
We agree.

[¶37] We apply a mixed standard of review for child support determinations:
“Child support determinations involve questions of law which are subject to
the de novo standard of review, findings of fact which are subject to the clearly
erroneous standard of review, and may, in some limited areas, be matters of
discretion subject to the abuse of discretion standard of review.” Grossman v.
Lerud, 

, 

 (citing State ex rel. K.B. v. Bauer, 

, 

). “Determination of whether an individual is
underemployed is within the discretion of the trial court.” Schrodt v. Schrodt,

, 

. “If the district court fails to comply with
the child support guidelines in determining an obligor’s child support
obligation, the court errs as a matter of law.” Grossman, at ¶ 6 (citing Serr v.
Serr, 

, 

).

[¶38] “Courts may deviate from the guideline amount when a party urging
deviation shows, by a preponderance of the evidence, that deviation is
appropriate. However, when courts deviate from the guidelines, that deviation
must be supported by specific findings that the presumption under the
guidelines has been rebutted.” Bye v. Robinette, 

, 

 (cleaned up).

                                       A

[¶39] Jeffrey Edison first argues the court erred because it failed to compare
his gross income to the statewide average earnings for persons with similar
work history and occupational qualifications as required under N.D. Admin.
Code § 75-02-04.1-07(1)(b). Courts must impute income to an obligor who is
unemployed or underemployed unless an exception applies. N.D. Admin. Code
§ 75-02-04.1-07(3). The district court stated at a post-judgment motion hearing
that it did not need to rely on N.D. Admin. Code § 75-02-04.1-07(2) to find that
Jeffrey Edison was underemployed, and the court therefore found that he was


                                       14
underemployed under N.D. Admin. Code § 75-02-04.1-07(1)(b). “An obligor is
‘underemployed’ if the obligor’s gross income from earnings is significantly less
than this state’s statewide average earnings for persons with similar work
history and occupational qualifications.” N.D. Admin. Code § 75-02-04.1-
07(1)(b).

[¶40] A district court erred because it did not “provide a source for the amount
of earnings that someone with [the obligor’s] qualifications earns.” Bye, 

. “Both N.D. Admin. Code §§ 75-02-04.1-07(1)(b) and 75-02-04.1-
07(2) require the use of ‘this state’s statewide average earnings.’” Schrodt, 

. District courts must refer to a source demonstrating the average
earnings for the entire state of North Dakota; evidence of average earnings for
a different geographic area is insufficient. Schurmann v. Schurmann, 

, 

. The statewide average earning reports published
by Job Service of North Dakota are sufficient. Schrodt, at ¶ 24; see also Verhey
v. McKenzie, 

, 

 (citing Orvedal v. Orvedal,

, 

).

[¶41] Here, the district court did not compare Jeffrey Edison’s income to a
published study of the statewide average earning but compared it to the
expected income of a carpenter in Fargo, North Dakota, on the basis of witness
testimony. It also found that Jeffrey Edison was underemployed because he
testified that he could draw a larger salary from his business but took a smaller
salary because he wanted to keep more money in the business. Signe Edison
agrees that “neither party presented evidence of North Dakota’s statewide
average earnings for construction workers, construction managers, or
contractors.” She argues, however, that this “failure is on the parties, not the
court.” The failure is on the parties, but the court misapplied N.D. Admin. Code
§ 75-02-04.1-07(1)(b). The court’s finding that Jeffrey Edison was
underemployed is clearly erroneous because it lacked evidence to support the
“statewide average earnings for persons with similar work history and
occupational qualifications.”




                                       15
                                       B

[¶42] Jeffrey Edison next argues that the district court erred in finding that
he was underemployed because the court considered his adjusted gross income
rather than his gross income. “An obligor is ‘underemployed’ if the obligor’s
gross income from earnings is significantly less than this state’s statewide
average earnings for persons with similar work history and occupational
qualifications.” N.D. Admin. Code § 75-02-04.1-07(1)(b). “Income must be
sufficiently documented through the use of tax returns, current wage
statements, and other information to fully apprise the court of all gross
income.” N.D. Admin. Code § 75-02-04.1-02(7).

[¶43] “Adjusted gross income” is distinct from “gross income.” Section 75-02-
04.1-01(4)(a)-(b), N.D. Admin. Code, defines gross income as “income from
any source, in any form” and in (4)(a) lists sources that are not gross income
and in (4)(b) lists, non-exclusively, examples of sources that are gross income.
“Adjusted gross income” is not mentioned, and the North Dakota
Administrative Code uses the terms distinctly. N.D. Admin. Code § 75-02-04.1-
01(4)(b), (6)(a)-(i). The internal revenue code defines “adjusted gross income”
as “in the case of an individual, gross income minus the following deductions,”
and then lists several deductions. 

.

[¶44] A district court may consider adjusted gross income to determine the
gross income. Schrodt, 

. However, a court fails to comply with
the guidelines when it concludes, on the basis of adjusted gross income and
without determining gross income, that a person is underemployed. Halberg v.
Halberg, 

, 

. In short, the court must make
a finding of gross income. 

 Here, as in Halberg, the court erred because it
failed to calculate Jeffrey Edison’s gross income and made a determination
solely on the basis of his adjusted gross income from his tax returns.




                                      16
                                       VI

[¶45] We reverse the judgment and amended judgment and remand for
proceedings consistent with this opinion.

[¶46] Jon J. Jensen, C.J.
      Daniel J. Crothers
      Jerod E. Tufte




McEvers, Justice, concurring in part and dissenting in part.

[¶47] I concur with parts I, IV, V, and much of part III, but I respectfully
dissent to part II. I disagree that remand is necessary on the issue of primary
residential responsibility.

[¶48] As to part II of the opinion, I would affirm based on the standard of
review. “Our review of a district court’s decision on primary residential
responsibility is limited. ‘A district court’s decisions on primary residential
responsibility are treated as findings of fact and will not be set aside on appeal
unless clearly erroneous.’” Lessard v. Johnson, 

, 

 (cleaned up). Under this standard of review, we do not reweigh the
evidence or reassess the credibility of witnesses, and we will not substitute our
judgement for a district court’s 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.” Fleck
v. Fleck, 

, 

 (quoting Jelsing v. Peterson, 

, 

) (citations omitted). “A finding of fact is clearly
erroneous if it is induced by an erroneous view of the law, if no evidence
supports it, or if, after reviewing the entire record, we are left with a definite
and firm conviction a mistake has been made.” Goetz v. Goetz, 

, --- N.W.2d ---.

[¶49] After a review of the record and the district court’s findings, I disagree
with the majority that the court’s decision on primary residential responsibility

                                        17
is clearly erroneous. Although I join the majority’s concern that the district
court made some findings that appear to be based generally on breastfeeding
women and their babies, the bulk of the findings are specific to these parties
and the best interests of their children. The district court is not alone in
expressing some generalities. This Court has made statements that could be
construed as stereotypes in affirming what is in the best interests of a child:

      Of course, the repeal of the statute setting forth the “tender years”
      doctrine does not alter the observed fact that mothers of infants
      are most often better able to care for them than the fathers are.
      But that fact is only one of the many considerations to be weighed
      by the trial court in making its finding as to the best interest of the
      child, and to be considered by us in determining whether the
      finding was clearly erroneous. Under the circumstances here, we
      cannot say that the finding was clearly erroneous. It is possible
      that we might have made a different determination if we had tried
      the case in the first instance, but we did not.

Odegard v. Odegard, 

 (N.D. 1977). The record here
contains evidence to support the court’s findings that it was in the best
interests of the children that Signe Edison should have primary residential
responsibility of the children.

[¶50] Jeffrey Edison’s argument on appeal is that the district court based its
custodial determination solely on gender. The court’s 43-page order included 9
pages of findings addressing each of the best interest factors. The court
included analysis of many factors other than gender in reaching its decision.
The court found many positive qualities in both parents, and the majority of
the factors favored neither party; however, none of the best interest factors
favored Jeffrey Edison. The court focused on specific experience, qualities, and
traits of each parent, but found Signe Edison possessed more qualities that
show her having primary residential responsibility is in the children’s best
interests.

[¶51] I agree with the majority that North Dakota law broadly prohibits
discrimination on the basis of sex. Majority, at ¶ 11 (relying on a policy
provision of the North Dakota Human Rights Act). However, I see nothing in


                                        18
the Human Rights Act that prohibits a court from considering breastfeeding
when determining the best interests of a child. I also agree there is no
presumption between a mother and a father who will promote the best
interests and welfare of a child under N.D.C.C. § 14-09-29. Under N.D.C.C. §
14-09-29, a court must award parental rights and responsibilities to the person
who will, in the opinion of the court, promote the best interests of the child.
Breastfeeding may or may not be in the best interests of a child and, in general,
either parent may be able to provide the child with breast milk from a bottle,
either from the mother or a secondary source. The State of Hawai’i has seen fit
to include breastfeeding as a factor to be considered when creating parenting
plans. HI ST § 571-46.5(c)(4).

[¶52] The majority opinion gives short shrift to the district court’s findings
under factor (a) regarding Signe Edison’s particular strengths unrelated to
breastfeeding. Majority, at ¶ 16. Under factor (a), the court considers: “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). The district court found:

      “Guidance” is one of Signe’s particular strengths. By both
      education and experience, she is especially aware of how to relate
      to a child in his or her developmental moment and guide them
      appropriately. On this topic, the Court is fully convinced of Jeffrey’s
      good intentions. However, Signe has specific training in this regard
      and has demonstrated her ability to be a fantastic mother.

      This factor is largely favorable to both parties, who can be
      commended for their true love and commitment to their children.
      However, with respect to her relationship with E.E. and her
      strengths in the area of “guidance,” it favors Signe.

These findings are supported by the record through the testimony of Signe
Edison and Dr. Krislea Wegner, who conducted a parental capacity evaluation
on Signe.

[¶53] Regarding factor (c), the majority opinion also does not consider the
totality of the district court’s findings. Majority, at ¶ 17. Under factor (c), the


                                        19
court considers: “The child’s developmental needs and the ability of each parent
to meet those needs, both in the present and in the future.” N.D.C.C. § 14-09-
06.2(1)(c). The court’s findings on factor (c) focused on many important factors
other than breastfeeding, such as:

      Signe has degrees in Human Development and Family Science and
      Elementary Education. Her degrees relate to how children
      develop, and how individuals and families develop, interact, and
      grow. They relate to the promotion of positive development and the
      expansion of human development. She has applied her experience
      as a teacher for approximately eight years in a classroom setting
      and, after H.J.E.’s birth, at home.

      Being attuned to and aware of children’s developmental needs, and
      meeting them, is Signe’s signature strength, as was affirmed by
      Psychologist Krislea Wegner.

      In her testimony, Signe spoke to the attention she gives her
      children’s development in the spheres of physical, cognitive,
      language, and social/emotional development. There is no reason to
      dispute her testimony in this regard.

      Signe is also breast-feeding E.E. This contributes to E.E.’s
      development in ways that formula cannot. It increases E.E.’s
      emotional bond with Signe. It strengthens E.E.’s immune system.
      The Court must also consider that there is a shortage of infant
      formula as of the date of this opinion and that the shortage is likely
      to      continue        for       the       foreseeable       future.
      (www.hhs.gov/formula/index.html)

      Jeffrey is educated in construction management. Without
      diminishing his ability to parent or efforts to be the best father he
      can be, Signe is simply more skilled in this regard as a result of
      her training and experience.

      This factor favors Signe and weighs significantly in the Court’s
      ultimate conclusion. The parties have both expressed a preference
      for breast-feeding. Only Signe is capable of breast-feeding. In
      addition, there is an uncertain supply of formula. Pumping may
      serve as a short term substitute to natural feeding, but it does not
      serve as a replacement. Signe testified credibly that, for her,

                                       20
      pumping does not encourage production of breast milk to the same
      extent that natural feeding does. These biological realities are
      unavoidable and must be strongly considered by the Court.

These findings, including the findings on the breastfeeding, are supported by
the record. On cross-examination, Jeffrey Edison testified he agreed he wanted
E.E. to be breastfed:

      Q:    Okay. And you agree that it would be important for Signe to
      breastfeed this child like she did H.E.; right?

      A:    I think breastfeeding is medically better for a child, yes.

In response to a question from the court, Jeffrey Edison further testified:

      THE WITNESS: Other options is – I do believe that breast milk
      is better for the child, so I have looked at options of buying it myself
      if she’s unwilling or unable to produce it. Formula is another option
      that – I mean, lots of kids are fed on it, so.

Signe Edison testified that although she was pumping breast milk, she was not
producing enough to provide Jeffrey Edison with sufficient breast milk for his
proposed parenting time. She also testified that E.E. is a “lackadaisical” eater
and she was concerned that E.E. could be confused by switching between
breastfeeding and bottle feeding. Signe Edison also testified that she was
concerned about feeding E.E. with formula because her family has allergies to
milk products.

[¶54] The court also recognized in its findings a well-reported fact that there
was an ongoing formula shortage. These findings, including those related to
breastfeeding, relate to the best interests of E.E. The “biological realities”
discussed by the court relate to realities of this case—Signe Edison’s testimony
on her experience with being unable to provide enough expressed breast milk
and the formula shortage—not to women in general.

[¶55] Dr. Krislea Wegner, a psychologist who performed a parental capacity
evaluation on Signe Edison, testified about the results of the testing completed:




                                        21
     A:      … Within the skills that were measured over the course of
     all of the testing, she scored in the above-average ranges within all
     subskills. So what that suggested that she had, you know, above-
     average ability to understand child development, to be able to offer
     opportunities for independence for development of autonomy, and
     then also ensuring that the disciplinary skills utilized were not
     physical forms of discipline; that there was, you know, a full range
     of interventions that she was able to offer that weren’t punitive or
     negative in nature; the importance of teaching, morals, and values,
     and just having a positive attitude, in general, with regard to
     parenting and feeling a bond with her children.

     Q:    Thank you. Doctor Wegner, did it surprise you at all that
     someone who’d spent her college years studying human
     development and teaching, and then spent years teaching children
     would show strength in her, as you say, quote, “Understanding of
     children’s developmental capabilities”?

     A:    No. That didn’t surprise me.

     Q:   In fact, you would expect someone with that kind of
     educational background to be, as you say, above-average in their
     understanding of children’s developmental capabilities?

     A:    Yes. It would have been a big red flag if those would have
     been in the ranges – in the lower numbers showing deficits.

Regarding bonding between parents and a child, Dr. Wegner on cross-
examination testified:

     A:    The bond. A parent forms a bond with the child. The child
     actually attaches to the parent. And parental bonding actually
     happens quite easily and readily.

     Q:    So would there be no concern to you then if the child was
     placed – feeding issues aside – would there be no concern to you
     then if the child was placed in Ms. – Mr. Edison’s care and Ms.
     Edison got to see the child, E., for one hour a day? That wouldn’t
     be a cause of concern to you?




                                      22
      A:    Well, it’s a different set of variables because the child is
      already forming a primary attachment when there’s been a
      pregnancy where the mother has carried the child and then
      delivered the child. They identify that individual as their primary
      caretaker, which is why you have to introduce the other caretaker
      as a gradual process to form that bond and attachment, and then
      have the time away from that primary caretaker occur on a
      gradual basis so that the child doesn’t form any type of feared
      response or feel any – of abandonment. That’s how children end up
      with, you know, mental health issues and attachment issues is if
      those things aren’t done well.

The district court’s findings on the bond and attachment already established
between Signe Edison and E.E. are supported by the record and are valid best
interest considerations. The court’s findings on factor (c) are supported by the
record and are not clearly erroneous.

[¶56] The district court also found factor (m) favored Signe Edison. Factor (m)
allows the court to consider: “Any other factors considered by the court to be
relevant to a particular parental rights and responsibilities dispute.” N.D.C.C.
§ 14-09-06.2(1)(m). The court made extensive findings under factor (m), some
of which discussed benefits of breastfeeding to E.E. In addition to the findings
on breastfeeding, the court found there to be discord between the parties and
that joint residential responsibility would not be in the best interests of the
children. The court cited the difficulty the parties had even agreeing to
Christmas visitation while the case was pending. The court was also concerned
that if Jeffrey Edison was awarded primary residential responsibility, he would
seek to move the children to Washington, which would likely result in more
litigation and discord. The court considered the thriving sibling relationship
and sought to encourage that relationship by making their situations as
similar as possible. These are all relevant factors not pertaining to
breastfeeding or gender that favor Signe Edison.

[¶57] As with the other factors, the district court’s findings on factor (m) are
supported by the record. Signe Edison testified regarding additional benefits
of breastfeeding for the court to consider under factor (m):



                                      23
      Q:     Factor M is a catch-all. It says, “Any other factors
      considered by the Court to be relevant to a particular parental
      rights and responsibilities dispute.” We don’t know what our Judge
      may consider relevant, but I’m going to just suggest a few.
      Breastfeeding?

      A:    I believe it’s relevant.

      Q:    Okay. And explain to us – first of all, your intents about
      breastfeeding E., and why you consider them important.

      A:     I hope to breastfeed E. as long as I can. And I think it’s
      important because, you know, through my schooling. And through
      birth and delivery, they always have a breastfeeding specialist
      there, and they talk about why and encourage breastfeeding. And
      the breastfeeding that – the milk that E. gets is specifically
      designed for E. and it changes as E.’s needs change. And if E. gets
      sick, the milk changes to give antibodies to E. And so, either if I
      come in contact with a sickness, or E. – it’s a two-way street for the
      both of us and the antibodies – but it is specifically designed for E.
      to meet her needs as she’s growing and as she’s changing. And it
      helps build an immune system for E.

      Q:   Is it your understanding that the social sciences and the
      medical sciences support the view that you’ve just expressed?

      A:    Yes.

[¶58] The court received a declaration from Dr. Wegner, as well as articles into
evidence provided by Dr. Wegner, which discussed child development at
different ages, the effect of conflict between parents on children, the benefits
of breastfeeding, and various other related topics. A guide entitled “Child-
Focused Parenting Time Guide” created by the Minnesota Judicial Branch, and
labeled “Exhibit E” in the record, contained the following information on
breastfeeding:

      Breastfeeding is a consideration when the parenting time schedule
      is created for an infant. Breastfeeding provides physical and
      emotional benefits to the child. Parenting time schedules can be
      revised as the child’s feeding needs change. When exclusively


                                       24
      breastfed, a child will benefit from frequent parenting time with
      the other parent. Where both parents have been engaged in an
      ongoing caregiving routine with a child who is fed breast milk, the
      same caregiving arrangement can be continued into the future in
      the parenting time schedule to maintain stability for the child.

[¶59] Another article received in evidence, authored by Dr. Isabelle Fox,
discussed the basic need for infants to have the trust and security from
consistent care by their primary caregiver in a familiar setting. This article,
along with the finding of discord between the parents, supports the court’s
finding under factor (m) that joint residential responsibility was not in the best
interests of the children. The court’s findings on factor (m) are not clearly
erroneous.

[¶60] The majority concludes the district court’s findings regarding E.E.’s best
interests are clearly erroneous because they misapply N.D.C.C. § 14-09-29(1).
Majority, at ¶ 19. I agree with the majority that N.D.C.C. § 14-09-29(1) does
not allow a presumption between a mother and a father who will better
promote the best interests and welfare of the child, but I disagree that the
district court misapplied the law or created a presumption; rather, it weighed
the best interest factors based on the evidence as presented, including evidence
on the benefits of breastfeeding E.E. under the circumstances of this case. It is
beyond dispute that a child’s nutritional needs and specific nutrition options
available to a certain child are considerations that may bear on a court’s
consideration of the child’s best interests. However, breastfeeding will not
always factor favorably in the best interest analysis. For example, if a child is
failing to thrive because of feeding issues related to breastfeeding, this factor
could weigh against breastfeeding in favor of bottle feeding. In instances where
a mother has addiction issues or a baby has phenylketonuria (PKU baby),
breastfeeding would be detrimental to the child. Put simply, breastfeeding may
be an important consideration among the many best interest factors, and it is
not error for the court to consider it along with the other factors.

[¶61] As to my separate in Rustad v. Baumgartner, 

,

, I stand by my position. I concurred because the district court
there made findings to support its decision when breastfeeding factored into


                                       25
the court’s decision to severely restrict a father’s parenting time until the child
was three years old. My admonition was not that breastfeeding cannot be
considered, but was a reminder that courts should not default back to the
“tender years” doctrine that young children, regardless of their gender, belong
with the mother. My continuing concern is that breastfeeding should not create
a “trump” card, which in effect would create a presumption that breastfeeding
women should be awarded primary residential responsibility or should
completely defeat the other parent’s opportunity for generous parenting time.

[¶62] I do not agree with the majority that the court’s award of primary
residential responsibility here was “heavily influenced” by improper sex-based
generalizations. Majority, at ¶ 22. Rather, the court was faced with a difficult
decision involving two fit parents and based its decision on the few
distinguishing factors between the parties from the evidence presented. For
example, in another case involving a close call, this court said the district court
did not misapply the law when it found the factor that tipped the scales was
the parent who was the child’s “closest, nurturing parent.” Jelsing, 

. North Dakota has no presumption for either parent to receive
primary residential responsibility, but it also has no presumption that joint
parenting is in the best interests of the children.

[¶63] Particularly when the record shows there was agreement between the
parties that breastfeeding is in the best interests of the child, as was the case
here, it is not error or bias for the district court to take breastfeeding, and
whether enough breast milk can be produced, into consideration along with
other factors when making its custody determination. It is relevant here that
the court’s decision, and its findings concerning breastfeeding, were made
during a nationwide infant formula shortage. Ensuring a child will be able to
be nurtured and provided proper nutrition is a valid consideration when
deciding the best interests of the child. The specific circumstances of this case,
and the court’s detailed findings concerning those circumstances, do not lead
me to the conclusion that the court’s decision was based on gender bias. The
court’s decision on primary residential responsibility between two fit parents
is difficult, and this Court should not retry the case or substitute its judgement
for that of the district court when its determination is supported by the


                                        26
evidence. Thompson v. Thompson, 

, 

. The court
cannot and should not create presumptions that the breastfeeding parent
should automatically have custody; however, the court may consider the
benefits of breastfeeding for the child when evidence in the record supports
such a finding.

[¶64] Here, the district court made sufficient findings based on the evidence,
admitted without objection, to support its decision. The court did not rely on
the “tender years” doctrine or create a presumption that Signe Edison be
awarded primary residential responsibility because she was breastfeeding.
Rather, the court considered a number of factors, breastfeeding being only one
of its many considerations. The court considered many specific traits and
abilities possessed by Signe Edison and Jeffrey Edison, and ultimately found
it was in the best interests of the children that Signe Edison have primary
residential responsibility. The court did not misapply the law, its findings are
supported by the record, and I do not have a definite and firm conviction a
mistake has been made. I would affirm.

[¶65] Lisa Fair McEvers
      Douglas A. Bahr




Bahr, Justice, concurring in part and dissenting in part.

[¶66] I concur in parts I, IV, and V of the majority opinion. I respectfully
dissent to part II and join Justice McEvers’ dissent to part II. I agree with the
majority’s analysis in part III but believe it is unnecessary because I would not
conclude the district court’s decision to award Signe Edison primary residential
responsibility was clearly erroneous.

[¶67] As to part II of the majority opinion, I write separately to emphasize that
I agree with the majority’s statements of the law. I disagree with the majority’s
application of the law to the district court’s specific factual findings in this case.

[¶68] As explained by the majority, courts may not rely “on stereotypes and
generalizations about mothers and fathers” when determining residential

                                         27
responsibility and parenting time. Majority, at ¶ 12. I further agree an
“assumption that by breastfeeding, a mother necessarily has a deeper bond
with a child compared to the father” would constitute a prohibited stereotype
or generalization. Id. at ¶ 20. Rather, as explained by the majority, “[t]he law
requires specific findings about the individual parents, not application of
generalizations about what may be generally true of men and women.” Id. at
¶ 21. However, based on a careful review of the district court’s factual findings
and the record, I disagree with the majority that the court “relies significantly
on generalizations about differences between mothers and fathers.” Id. at ¶ 22.
Rather, I agree with Justice McEvers that, although the court “made some
findings that appear to be based generally on breastfeeding women and their
babies, the bulk of the findings are specific to these parties and the best
interests of their children.” McEvers, Justice, concurring and dissenting, at
¶ 49. Moreover, for the reasons articulated by Justice McEvers, the court’s
findings are not clearly erroneous, i.e., there is some evidence in the record to
support them. Otten v. Otten, 

 (stating “[a] district
court’s decisions on residential responsibility are treated as findings of fact and
will not be set aside on appeal unless clearly erroneous,” and that a finding of
fact is clearly erroneous “if there is no evidence to support it”).

[¶69] Based on my review, only two of the district court’s findings are improper
sex-based generalizations. They are the court’s findings “[t]he bond between a
breastfeeding mother and a newborn is likely as strong a bond as can be
established between two human beings,” and “women are able to use
mechanical pumps to help supply the child’s needs. However, a pump approach
bypasses the psychological and emotional benefits of at-the-breast feeding.”
The court’s other findings regarding breastfeeding are specific to the parties
and the best interests of the children. They include: the parties have both
expressed a preference for breastfeeding; Signe Edison is breastfeeding E.E.,
which contributes to E.E.’s development in ways that formula cannot,
strengthens E.E.’s immune system, and increases E.E.’s emotional bond with
Signe Edison; Signe Edison’s pumping does not encourage production of breast
milk to the same extent that natural feeding does; there is a shortage of infant
formula that is likely to continue for the foreseeable future; and the fact Signe
Edison is breastfeeding E.E. would lead to additional complications and

                                        28
difficulties with joint responsibility that would not be in the best interests of
the children.

[¶70] To support its position, the majority makes the following analogy: “To
illustrate, the court’s findings would have been similarly erroneous if it had
reasoned that because, as a group, men generally have superior physical
strength compared to women, the father would better provide a safe
environment under factor (b), N.D.C.C. § 14-09-06.2(1).” Majority, at ¶ 21. I
agree that such findings would be improper. However, the majority’s analogy
is incomplete because in this case the district court made specific factual
findings as to the parties and the best interests of the children; the court did
not simply rely on stereotypes and generalizations about mothers and fathers
or breastfeeding.

[¶71] It is improper for courts to determine parental responsibility based on
stereotypes and generalizations. However, as acknowledged by the majority,
equal treatment of parents does not prevent courts from considering and
making specific findings regarding the individual parents and what is in the
best interests of the individual child or children. See Majority, at ¶ 21. That is
what the court did here. Although I may have weighed the specific facts in this
case differently than the court did, that is not the standard of review.
Hammeren v. Hammeren, 

, 

 (“In applying the
clearly erroneous standard, we will not reweigh evidence, reassess witness
credibility, retry a custody case, or substitute our judgment for the trial court’s
decision merely because this Court may have reached a different result.”).

[¶72] Some may argue permitting district courts to consider whether a mother
is breastfeeding is unfair to the father since he cannot breastfeed. First, as
emphasized by the majority, Justice McEvers, and me, any consideration of
breastfeeding must be fact specific to the case before the court, not based on
stereotypes and generalizations. Second, and more to the point, as stated by
the majority, “Neither the fitness of the parents nor fairness to the parents is
the appropriate test for determining custody, but rather the predominant
consideration is the best interests of the child.” Majority, at ¶ 10 (emphasis
added) (quoting Klein v. Larson, 

, 

).


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[¶73] Some may also express concern that a mother may decide to breastfeed
to gain a tactical advantage under one or more of the best interest factors.
However, whether a mother’s breastfeeding is for a tactical advantage is a
factual issue that must be determined and weighed by the district court. Courts
must regularly consider and weigh the sincerity of a parent’s actions when
addressing the factually complex and extremely important decision of
determining parental responsibility. I trust our courts’ ability to properly
perform that function.

[¶74] I would affirm the district court.

[¶75] Lisa Fair McEvers
      Douglas A. Bahr




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