Opinion
20230368
05-16-2024
Melissa M. Armitage, Plaintiff and Appellee v. Joshua L. Armitage, Defendant and Appellant
Morgan M. Jacobs, Dickinson, ND, for plaintiff and appellee. Christopher E. Rausch, Bismarck, ND, for defendant and appellant.
Appeal from the District Court of Stark County, Southwest Judicial District, the Honorable William A. Herauf, Judge.
AFFIRMED.
Morgan M. Jacobs, Dickinson, ND, for plaintiff and appellee.
Christopher E. Rausch, Bismarck, ND, for defendant and appellant.
OPINION
BAHR, JUSTICE
[¶1] Joshua Armitage appeals from a judgment awarding Melissa Armitage primary residential responsibility of the parties' minor child. We conclude the district court did not clearly err when it awarded Melissa Armitage primary residential responsibility of the parties' minor child. We affirm.
I
[¶2] Joshua Armitage and Melissa Armitage were married in June 2019 and separated in February 2023. The parties have one child together, born in 2020. In February 2023, Melissa Armitage commenced this divorce action.
[¶3] The district court held a bench trial in August 2023. The court subsequently entered an order, order for judgment, and judgment. Among other things, the court awarded Melissa Armitage primary residential responsibility of the minor child, subject to Joshua Armitage's parenting time.
II
[¶4] Joshua Armitage argues the district court erred when it awarded Melissa Armitage primary residential responsibility of the parties' minor child.
[¶5] "[A district court's] decision on primary residential responsibility is a finding of fact reviewed under the clearly erroneous standard of review." Hillestad v. Small, 2023 ND 195, ¶ 6 (quoting Boldt v. Boldt, 2021 ND 213, ¶ 8, 966 N.W.2d 897). This Court's review under the clearly erroneous standard is well established:
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 this Court, on the entire record, is 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 primary residential responsibility decision merely because we might have reached a different result.Id. (quoting Boldt, at ¶ 8 (cleaned up)).
[¶6] In deciding residential responsibility, the district court considers the best interests and welfare of the child. N.D.C.C. §§ 14-09-06.2, 14-09-30(1). "The court must consider the thirteen best interest factors set out at N.D.C.C. § 14-09-06.2(1) when making its [decision.]" Hillestad, 2023 ND 195, ¶ 7 (quoting Boldt, 2021 ND 213, ¶ 7). The court must consider all of the factors but need not make a finding on each factor. Id.; Brown v. Brown, 1999 ND 199, ¶ 11, 600 N.W.2d 869. Although not required "to address each minute detail presented in the evidence, the court may not wholly ignore and fail to acknowledge or explain significant evidence clearly favoring one party." Law v. Whittet, 2014 ND 69, ¶ 10, 844 N.W.2d 885.
III
[¶7] In its order, the district court considered the evidence and made findings on the best interest factors, providing specific analysis on twelve of the factors. The court found factors (a) and (c) favored Melissa Armitage. The court found the remaining factors favored neither party.
[¶8] Joshua Armitage argues the district court erroneously relied on the role of primary caretaker in reaching its decision under best interest factors (a) and (c). Best interest factors (a) and (c) are:
a. The love, affection, and other emotional ties existing between the parents and child and the ability of each parent to provide the child with nurture, love, affection, and guidance.
c. The child's developmental needs and the ability of each parent to meet those needs, both in the present and in the future.N.D.C.C. § 14-09-06.2(1)(a), (c).
[¶9] In Hillestad, this Court explained:
A court's choice for primary residential responsibility between two fit parents is a difficult one, and this Court will not retry the case or substitute its judgment for that of the district court when its decision is supported by the evidence. Established patterns of care and nurture are relevant factors for courts to consider when determining an award of residential responsibility. While this Court has recognized a primary caretaker enjoys no paramount or presumptive status under the best interests of the child factors, we have also stated primary caretakers deserve recognition in custody determinations.2023 ND 195, ¶ 13 (cleaned up).
[¶10] Addressing factor (a), the district court found "[b]oth parties have demonstrated their love, affection, and emotional ties" to their child, and that the child "has love, affection, and other emotional ties to both her parents." After noting Melissa Armitage "serves the role as the primary care giver," the court agreed with Joshua Armitage "that viewing the status as primary care giver as a tie-breaker, is not appropriate." The court then found Melissa Armitage has "better knowledge of the general health and medical condition" of the child than Joshua Armitage, and that her "knowledge as to how [the child] is responding at any one point is going to provide a better basis in determining whether or not [the child] is having problems." The court found this factor favored Melissa Armitage.
[¶11] Under factor (c), the district court addressed the emotional ties between Melissa Armitage and the child. The court found Melissa Armitage "has a track record for being there for the child through all of her developmental milestones," while Joshua Armitage's "track record prior to the separation was not very good to say the least." The court further found Joshua Armitage "still needs to continue to develop his knowledge" of the child. The court found factor (c) favors Melissa Armitage "due to her overall better knowledge" of the child than Joshua Armitage.
[¶12] When considering factors (a) and (c), the district court recognized and considered Melissa Armitage's role as primary caretaker of the child. However, the court did not use Melissa Armitage's role as primary caretaker as a paramount or presumptive status. Rather, the court specifically stated it is not appropriate to view "the status as primary care giver as a tie-breaker." The court's findings under factors (a) and (c) were not based on an erroneous view of the law and are not clearly erroneous.
[¶13] Joshua Armitage argues many of the factors that the district court found favored neither party actually supported an award of equal residential responsibility. Because, in his opinion, the neutral factors actually weighed in favor of equal residential responsibility, he argues the court erred in awarding Melissa Armitage primary residential responsibility.
[¶14] The district court considers the best interests and welfare of the child when deciding residential responsibility. N.D.C.C. §§ 14-09-06.2, 14-09-30(1). That includes considering whether one parent will better promote the welfare and best interests of the child than the other. However, the analysis is not parent verses parent, or "one proposed parenting plan against the other proposed parenting plan." Hillestad, 2023 ND 195, ¶ 28. "Ultimately, the paramount consideration in [residential responsibility] determinations is the best interests of the child." Peek v. Berning, 2001 ND 34, ¶ 20, 622 N.W.2d 186.
[¶15] Moreover, determining parental responsibility is not "a mathematical formula by which the factors are added up and the person with the most factors in their favor is awarded [residential responsibility.]" P.A. v. A.H.O., 2008 ND 194, ¶ 15, 757 N.W.2d 58. Similarly, the district court does not award residential responsibility based on the proposed parenting plan with the most factors in its favor. While the court should give each relevant best interest factor consideration, "some factors may prove to be more important in one situation than in another with different circumstances. The best interests of the child is a fact-intensive test which must be examined on a case-by-case basis." State v. Andres, 2016 ND 90, ¶ 9, 879 N.W.2d 464 (quoting P.A., at ¶ 15). As explained in Hillestad, 2023 ND 195, ¶ 29:
[I]rrespective of the number of factors favoring one parent or one proposed parenting plan, the district court adopts a parenting plan that is in the best interests of the child. In doing so, the court may accept a proposed parenting plan requested by a party, it may accept a modified version of a proposed parenting plan requested by a party, or it may adopt a completely different parenting plan. See N.D.C.C. § 14-09-30(1). In other words, the court's choice is not between two proposed parenting plans; the court's task is to adopt or develop a parenting plan that is in the child's best interests.
[¶16] In this case, the district court weighed the evidence and found a parenting plan granting the parties equal residential responsibility was not in the best interests of the child. Rather, the court found granting Melissa Armitage primary residential responsibility was in the child's best interests. The court provided sufficient findings and analysis on the best interest factors. It explained its decision based on the evidence presented during the trial. Most of Joshua Armitage's arguments on appeal simply seek to have this Court reweigh the evidence. However, "[u]nder 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 primary residential responsibility decision merely because we might have reached a different result." Hillestad, 2023 ND 195, ¶ 6 (quoting Boldt, 2021 ND 213, ¶ 8).
[¶17] We conclude the district court's findings of fact were not induced by an erroneous view of the law, are supported by the evidence, and we are not left with a definite and firm conviction a mistake has been made. The court did not clearly err when it awarded Melissa Armitage primary residential responsibility of the parties' minor child.
IV
[¶18] We have considered Joshua Armitage's remaining arguments and conclude they are not necessary to our decision or are without merit. We affirm the district court's judgment.
[¶19] Jon J. Jensen, C.J. Daniel J. Crothers Lisa Fair McEvers Jerod E. Tufte Douglas A. Bahr