20170063

FILED IN THE OFFICE OF THE IN THE SUPREME COURT CLERK OF SUPREME COURT July 14, 2017 STATE OF NORTH DAKOTA STATE OF NORTH DAKOTA

Brent Thompson, ) Supreme Court No. 20170063 ) Wells County District Plaintiff/Appellant ) Court Case No. 52-2015-DM-00040 ) vs. ) ) Jeanna Thompson, ) ) Defendant/Appellee ) )

Appeal from the

Judgment dated January 18, 2017.

District Court, Wells, North Dakota The Honorable James D. Hovey, Presiding

BRIEF OF APPELLANT

Kyle R. Craig (07935) ACKRE LAW FIRM, PLLP. Attorney for Plaintiff/Appellant 1809 South Broadway Plaza Suite N Minot, ND 58701 701-838-3325 [email protected]

Table of Contents 1. Table of Authorities……………………………………………………………….….....ii

2. Jurisdictional Statement……………………………………………………………….¶1

3. Statement of Issues……………………..………………………………………...¶2, ¶3

The issues presented by Appellee are as follows:

I. Whether the Court erred in awarding split residential responsibility

of the parties’ minor children………………………………………….¶2

II. Whether the Court erred by failing to make findings on the Plaintiff’s

ability to pay spousal support when awarding Defendant spousal

support………………………………………………………………….¶3

4. Statement of the Case.……………………..………………………………………....¶4

5. Statement of the Facts…………………¶5, ¶6, ¶7, ¶8, ¶9, ¶10, ¶11, ¶12, ¶13, ¶14

6. Argument…………………………………………………………………………….¶15

I. Whether the Court erred in awarding split residential responsibility of the

parties’ minor children…………….¶15, ¶16, ¶17, ¶8, ¶19, ¶20, ¶21, ¶22, ¶23, ¶24

II. Whether the Court erred by failing to make findings on the Plaintiff’s ability to

pay spousal support when awarding Defendant spousal

support………………...…………………………………………………..¶25, ¶26, ¶27

7. Conclusion………………………………………………………………………¶28, ¶29

i

Table of Authorities

Cases:

Rustad v. Rustad, 2013 N.D. 185, ¶5, 838 N.W. 2d 421……………………………………..……¶15

Schlieve v. Schlieve, 2014 ND 107, ¶ 25, 846 N.W. 2d 463………………………………………....¶15

Stoppler v. Stoppler, 2001 ND 148, ¶ 97, 633 N.W. 2d 142……………………………………….…¶15

Leppert v. Leppert, 519 N.W. 2d. 287 (N.D. 1994)……………………………………………………¶15

Freed v. Freed, 454 N.W. 2d 516, 519 (N.D. 1990)…………………………………………………..¶16

Olson v. Olson, 361 N.W. 2d 249, 251 (N.D. 1985)…………………………………………………..¶16

Johnson v. Schlotman, 502 N.W. 2d 831, 834 (N.D. 1993)………………………………………….¶16

Rustad v. Rustad, 2013 N.D. 185, ¶5, 838 N.W. 2d 421……………………………………..……¶18

Johnson v. Schlotman, 502 N.W. 2d 831, 834 (N.D. 1993)………………………………………….¶21

Solem v. Solem, 2008 N.D. 211, ¶5, 757 N.W. 2d 748……………………………………………….¶25

Pearson v. Pearson, 2009 N.D. 154, ¶6, 771 N.W. 2d 288………………………………………….¶25

Overland v. Overland, 2008 N.D. 6, ¶16, 744 N.W. 2d 67…………………………………………...¶25

Statutes:

N.D.C.C., § 28-27-01………………………………………………………………………….¶1

N.D.C.C. § 28-27-02(2)………………………………………………………………………..¶1

ii

I. Jurisdictional Statement

[¶1] "Appeals shall be allowed from decisions of lower courts to the Supreme

Court as may be provided by law." North Dakota Constitution, Article VI, Section

6. "A judgment or order in a civil action may be removed to the Supreme Court by appeal as provided in this chapter." N.D.C.C., § 28-27-01. A final Judgment awarding spousal support and affecting primary residential responsibility is appealable. N.D.C.C. § 28-27-02(2).

II. Statement of the Issues

I. [¶2] Whether the Court erred in awarding split residential

responsibility of the parties’ minor children

II. [¶3] Whether the Court erred by failing to make findings on

the Plaintiff’s ability to pay spousal support when awarding

Defendant spousal support

III. Statement of the Case

[¶4] On October 23rd, 2015, the Appellant (“Brent”) filed a Summons and

Complaint for from the Appellee (“Jeanna”) based on irreconcilable differences. (App. 5). Brent sought primary residential responsibility of the parties’ minor children. Jeanna filed an Answer an Counterclaim on November

2nd, 2015 (App. 11) and trial originally commenced on June 20th, 2016. Following the submission of testimony regarding the issue of , that trial was continued to August 25th and 26th of 2016 where the other issues that were in

ii dispute were litigated. Nearly all issues were in dispute, including valuation of the marital estate, division of the marital state, spousal support, primary residential responsibility, time, and Jeanna’s request to relocate out of state. (App.

29). Following the conclusion of this hearing, both parties submitted written closing arguments and the Honorable James Hovey took the matter under advisement. The Findings of Fact, Conclusion of Law and Order for Judgment were entered on December 23rd of 2016, and the Judgment was entered on

January 18th, 2017. (App. 1). Brent timely filed his Notice of Appeal on February

23rd, 2017.

IV. Statement of the Facts

[¶5] As relevant to the case at bar, the following facts were presented at trial.

[¶6] Brent and Jeanna have three children, ages 17, 15, and 13. (App. 31).

Prior to the commencement of the divorce proceeding, all three children resided with both of their parents in the marital home. Prior to the parties’ separation, the children testified that they had close relationships with each parent. (Tr. 3: Pg.

20). In particular, Brent and CMT testified that they would often engage in outdoor activities and would spend a significant time amount of time together.

(Tr. 2: Pg. 20, 152, 179). There were no incidences of abuse, chemical dependency issues, or neglect of the children involved. The children further testified that they were rather close with each other. (Tr. 3: Pg. 20).

[¶7] Following Brent and Jeanna’s separation the children were divided between the two households. CFT chose to reside with Jeanna and CMT chose to reside with Brent. Initially, CLT went back and forth between the two

1 residences, but in the few months leading up to trial, CLT ended up residing with

Jeanna more often. (App. 21). At trial, Brent requested primary residential responsibility of all three children in an effort to keep all three brothers together, whereas Jeanna requested primary residential responsibility of only CFT and

CLT and further requested permission to leave with those two children out of

State.

[¶8] Testimony was presented regarding Brent’s home environment. Brent resided in the marital home at the time of trial. The marital home was where all three boys had resided for the years leading up to the divorce, and in that home each child had their own personalized room and also had plenty space for outdoor activities that they had previously enjoyed with their father. (Tr. 2: Pg.

59). Conversely, Jeanna resided in what amounted to a run down, one-bedroom apartment. Although this apartment technically had two-bedrooms, the testimony presented was that one bedroom was uninhabitable due to a leaky roof and presence of mold. (Tr. 3: Pg. 20). Additionally, there were frequent problems with the cleanliness of that home in the form of dog feces and other excrement laying around the house, the presence of an over powering stench, the lack of furniture and other amenities, the presence of garbage and other filth, and for a period of time Jeanna and the children all slept in the same room on beds that were laid side by side on the floor. While residing at Jeanna’s residence the boys were not able to engage in outdoor activities as they had previously engaged in, and instead would frequently watch television or video games. Id. Jeanna testified that she had made no effort whatsoever to obtain other living

2 arrangements and that this particular living arrangement was not the result of a lack of funds or an inability to find suitable living arrangements. (Tr. 3: Pg. 256).

[¶9] Also in dispute was the alleged problems with mental health for the oldest child, CFT. Brent claimed that CFT suffered from a number of mental health related issues. Jeanna denied that CFT was suffering from any of these problems. Testimony was presented from a number of health professionals including Dr. Stacy Slaughter, Jennifer Grossmen-Chinburg LICSW, and Dr.

Jacqueline Bell. Dr. Slaughter and Ms. Grossmen-Chinburg both testified that

CFT had a number of untreated mental health problems that if left untreated could continue to worsen over time and would negatively impact his ability to lead a fruitful adult life. (Tr. 2: Pg. 5, 140). Jeanna’s expert, Dr. Bell, merely stated that CFT was not a suitable candidate for psychiatric medication and that other treatment alternatives would be in his best interest. (Tr. 3: Pg. 123). Brent sought out and prepared a plan of action that he presented at trial, where if he was granted primary residential responsibility of CFT, that he would immediately put in place to address these mental health concerns. (Tr. 2: Pg. 59). Jeanna conversely simply denied that he had any problems and requested that he simply be left alone.

[¶10] There was also significant dispute over schooling options for the children.

Brent preferred that the children remain in the school located in Harvey, North

Dakota that they have been attending for the last several years. Jeanna did not approve of the children returning to school based on some personal issues with the staff present at that school and sought to have CFT homeschooled, against

3 the advice of the mental health professionals who testified at trial. (Tr. 3: Pg. 59).

At the time of trial, although the school year had already commenced, Jeanna had taken no steps to enroll either of the children living with her in school.

Jeanna also did not put into place any plans for CFT despite her contention that she would like to homeschool CFT. Jeanna took no action to ensure that a plan was put into place for her children to attend school until being admonished by the Court at conclusion of testimony in the second day of trial.

(Tr. 3: Pg. 263).

[¶11] The children themselves also testified as to their preference and their reasons behind that preference. CFT and CLT testified that they preferred to reside with their mother based on the closer relationship with their mother and because they had a strained relationship with their father, due to his sadness over the divorce. (Tr. 3: Pg. 152, 179). They did not indicate that their father was incapable of caring for them or that their father would not facilitate a relationship with the mother. CMT, on the other hand, testified that he preferred to reside with his father because the living condition with his mother was deplorable. (Tr. 3:

Pg. 20). CMT testified that Jeanna’s home was filthy and unlivable. Additionally,

CMT testified that his mother was frequently under the influence of alcohol to the point where she would become incoherent and abusive. Specifically, CMT testified that Jeanna called him “daddy’s little bitch” when he would spend time with her and that Jeanna was attempting to alienate him and his brothers from their father. (Tr. 3: Pg. 37).

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[¶12] Testimony was also presented regarding Jeanna’s request for spousal support. Brent went through his monthly expenses and indicated that even without the additional burden of a full child support obligation, he was operating at a monthly deficit and did not have the funds to pay any spousal support to

Jeanna. Brent’s financial situation was not contested by Jeanna. (Tr. 2: Pg. 50).

Jeanna conversely testified that despite prospectively receiving a 6-figure sum from Brent’s retirement account, in addition to not being saddled with a significant amount of debt in the form of a mortgage or other obligation, that she nevertheless required a payment of spousal support.

[¶13] In its order, the District Court awarded primary residential responsibility of

CFT and CLT to Jeanna and primary residential responsibility of CMT to Brent. No specific parenting time schedule was allocated, and the parties were directed to work out that issue amongst themselves. (App. 52). The Court based the decision to split residential responsibility of the children based on the preference of the children, and also the presence of emotional ties between the children and their parents. Aside from a cursory explanation of which factors favored either party, the

Court made no specific findings as to why split residential responsibility would be in the best interest of the minor children. Id.

[¶14] The District Court further ordered that Brent would pay temporary rehabilitative spousal support to Jeanna in the amount of $1,000 per month for a period of four years. In its findings, the District Court did not take into account

Brent’s ability to pay and simply addressed a disparity in income. (App. 44).

VI. Law and Argument

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I. The District Court Erred in Awarding Split Residential

Responsibility of the Minor Children

[¶15] “A court’s award of primary residential responsibility is a finding of fact, which will not be reversed on appeal unless it is clearly erroneous” Rustad v.

Rustad, 2013 N.D. 185, ¶5, 838 N.W. 2d 421. “A court’s finding is clearly erroneous if there is evidence to support it, it is induced by an erroneous view of the law, or we are convinced based on the entire record, a mistake has been made.” Id. In the instant case, the District Court’s finding that it is in the best interest of the minor children for primary residential responsibility to be split between the parties is clearly erroneous because the District Court failed to make the specific factual findings necessary for such a split, and did not properly apply the case law on the issue.

A. The District Court’s findings do not support split residential

responsibility.

Courts are not required to do a line by line analysis for each individual child and

no one factor is determinative. Schlieve v. Schlieve, 2014 ND 107, ¶ 25, 846 N.W.

2d 463. Additionally, “courts should be cautious about dividing custody of

children” Id. “Split custody of siblings generally disfavored.” Stoppler v. Stoppler,

2001 ND 148, ¶ 97, 633 N.W. 2d 142. “This Court does not look favorably upon

split residential responsibility awards” Leppert v. Leppert, 519 N.W. 2d. 287 (N.D.

1994).

[¶16] Generally, this Court has upheld split residential responsibility arrangements when there is the presence of exceptional circumstances, such as in the case of

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Freed v. Freed, 454 N.W. 2d 516, 519 (N.D. 1990). In the Freed case, there was a significant age difference between the siblings and liberal visitation had been ordered. Split residential responsibility is also disfavored when there is evidence that a parent may be poisoning a child’s mind against the non-custodial parent. Olson v.

Olson, 361 N.W. 2d 249, 251 (N.D. 1985). In the instant case, the district court made no such exceptional findings. The only findings that the district court made in its otherwise extensive factual findings, was that the CFT and CLT had expressed preferences for Jeanna and that CMT had expressed a preference for Brent. It therefore appears that the split residential responsibility decision is based almost entirely off of an expressed preference of children and does not take in to account the other factors. Furthermore, no parenting time was actually ordered by the district court, and it was instead left to the agreement of the parties; an outcome that is extremely unlikely given that nearly every possible issue in a divorce and custody proceeding was litigated between the parties based on their inability to come to such an agreement. The district court made no findings about CMT’s testimony that his mother attempted to alienate him from Brent, and seemingly disregarded the presence of potential . If it can be inferred that the split residential responsibility decision is on the basis that the parties cannot agree, that decision is further in contrast to this Court’s case law, as the split residential responsibility decision, with no in place, precludes any ability for the parents to re- engage with the children that have not been residing in their home. Johnson v.

Schlotman, 502 N.W. 2d 831, 834 (N.D. 1993).

7

[¶17] The district court’s ultimate finding of split residential responsibility being in the best interest of the minor children is clearly erroneous as the district court made insufficient findings to support that conclusion and clearly disregarded this Court’s case law in making that determination.

B. The District Court Erred In Its Analysis Of The Remaining Best

Interest Factors.

[¶18] The district courts findings of the best interest factors are subject to a clearly erroneous standard of review that will only be overturned on appeal if it can be demonstrated that there is no factual support for these findings, the findings have been induced by an erroneous view of the law, or a reviewing court is left with a firm conviction that a mistake has been made. Rustad at ¶5.

[¶19] The district courts findings as they pertain to best interest factor b “the ability of each parent to ensure receives adequate food, clothing, shelter, medical care, and a safe environment” is clearly erroneous because there is no evidence to support the district courts finding that this particular factor favors Jeanna. The testimony presented at trial established that the living condition in this particular environment was nothing short of deplorable. The evidence presented was that Jeanna resided in what amounted to a one-bedroom apartment due to the unavailability of the other bedroom because of a leaky roof, and that up to four people would sometimes sleep in the one bedroom along with two small dogs. CMT testified that the smell was unbearable, that mold was present, animal feces was strewn about the floor not frequently picked up, and that it was generally an unsanitary and unsatisfactory living arrangement.

8

[¶20] In its findings, the district court did acknowledge that the living arrangement was presented in such a manner. However, without any evidentiary support whatsoever, the district court found that this factor favored Jeanna on the basis that

Brent took no affirmative action to rectify the poor living arrangement that Jeanna voluntarily chose for herself. The district court specifically attributed fault to Brent for not providing child support or spousal support to Jeanna and made the unsubstantiated assumption that if Brent had been providing those funds that the living arrangement would have not been so deplorable. (App. 46). However, that is not what the testimony at trial established. Jeanna never testified that there were other housing options available to her that were out of her reach due to finances or that she was unable to pay for repairs or other upkeep. Jeanna specifically testified that she did not try to obtain other housing and had only been looking for housing options in Minnesota. Therefore, no basis exists for the district courts finding that this particular factor favors Jeanna due to a failure on Brent’s part of providing support to her.

[¶21] The district court similarly failed to make sufficient findings as they pertain to best interest factor E “the willingness and ability of each parent to facilitate and encourage a close and continuing relationship between the other parent and the child.” In this instance, the Court focused on the difficulties between the parents facilitating visitation, but made no mention whatsoever of Jeanna’s attempt to alienate the children from their father. (App. 47). Clear evidence of alienation was presented by the testimony of CMT, where he stated that his mother called him

9

“daddy’s little bitch” and no mention is made of these attempts. As this court stated in Johnson

“a parent does have a duty to not turn a child away from the other parent by “poisoning the well” notwithstanding the preserved imperfections in the other parent, a custodial parent should, in the best interest of the children, nurture the children’s relationship with a non-custodial parent” at 839.

[¶22] Despite the presence of a clear-cut example of parental alienation, the district court completely disregarded that statement and did not address the attempts at alienation whatsoever in its findings. Although this Court must not reweigh the evidence, there simply was no assessment of credibility here and this Court should be left with a firm conviction that a mistake has been made by the district courts failure to address the relevant testimony as it applies to this factor.

[¶23] The district court made further error by stating that best interest factor H “the home, school, community records of the child and the potential effect of any change” slightly favored Jeanna. In its findings, the district court found that because Jeanna had assisted the children in school work previously that this factor likely favored her.

(App. 49). However, no mention is made of the fact that Jeanna completely failed to enroll the children in her care in school or otherwise have any plan whatsoever to ensure that the children participated in the 2016-2017 school year at the time of trial.

When trial had commenced, the school year for all three children had already begun.

However, only the child under Brent’s care was enrolled in school, whereas the other two had no arrangements made for them at all. It cannot be inferred that the district court did not find this credible or otherwise disregarded this, as the district court

10 reprimanded Jeanna on the record and demanded her to enroll her children in school following the trial. This Court need not re-weigh evidence to determine that no evidence exists to support the District Court’s conclusion that a vague notion of assisting with homework in the past contrasted with the gross negligence of not even enrolling your children in school somehow still allows Jeanna to still come out on top for this particular factor. Additionally, this Court should find that a definite mistake has been made as it pertains to this factor, as this Court should not endorse the actions of a parent to completely remove their children from schooling.

[¶24] Finally, the district court erred in not only assigning a great deal of weight to the preference of the children, but also in finding that it was supported by valid reasons. (App. 49). CFT and CLT both expressed a preference to reside with their mother ostensibly on the basis that it would allow them to go to a different school in a different state. It is not because their father treated them poorly or because they would not be cared for by their father, or even that their mother provided them some significant benefit. It was merely that they viewed expressing a preference for living with their mother as an opportunity to relocate out of state. With the denial of Jeanna’s request to relocate out of state, the two children were ultimately left with a vague and unsupported desire to live with their mother. Conversely, CMT testified that he did not wish to reside with his mother because of the fact that she regularly berated him verbally, and also the unlivable home environment that Jeanna provided. The district court made its finding on an erroneous view of the law by not taking into account the other factors which impacted the decisions of CFT and CLT and found that this factor

11 favored split residential responsibility and subsequently residing with Jeanna for an erroneous reason.

II.The District Court erred in awarding spousal support to Jeanna

without taking into account Brent’s ability to pay.

[¶25] “An award of spousal support is a finding of fact which shall not be set aside on an appeal unless clearly erroneous” Solem v. Solem, 2008 N.D. 211, ¶5, 757

N.W. 2d 748. The District Court must consider the relevant factors under the Ruff-

Fischer guidelines in determining awards of spousal support. Pearson v. Pearson,

2009 N.D. 154, ¶6, 771 N.W. 2d 288. “Spousal support awards must also be in consideration of the spouse needing support and of the supporting spouse’s needs and ability to pay” Overland v. Overland, 2008 N.D. 6, ¶16, 744 N.W. 2d 67.

[¶26] In awarding spousal support to Jeanna for a period of four years, the district court focused entirely on the discrepancy of income between the parties and the parties’ respective positions in life. While the lower court is certainly entitled to do so based on the Ruff-Fischer guidelines, there is an obligation to determine whether

Brent has the ability to pay spousal support.

[¶27] In the instant case, the district court utterly failed that particular obligation in that it made no findings whatsoever regarding Brent’s ability to pay. The testimony presented at trial was that prior to any spousal support obligation being imposed, and while subject to only a partial child support obligation, Brent was still operating at a net monthly deficit when all of his monthly expenses were taken into account. No significant effort was made by Jeanna to discredit this budget, nor were any findings made by the district court in that regard. The district court therefore should have taken

12 into account that Brent did not have the ability to pay a spousal support obligation. If

Brent does not have the ability to pay that obligation, then accordingly Jeanna is not entitled to a spousal support payment. Id.

V. Conclusion

[¶28] For the reasons stated above, the district court’s December 23rd, 2016

Judgment should be reversed and remanded for further proceedings.

[¶29] Dated this 14th day of July, 2017.

/s/ Kyle R. Craig______Kyle R. Craig (#07935) ACKRE LAW FIRM, PLLP Attorneys for Defendant/Appellant 1809 S. Broadway Plaza Ste. N Minot, ND 58701 (701) 838-3325 [email protected]

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IN THE SUPREME COURT STATE OF NORTH DAKOTA

Brent Thompson,

Plaintiff/Appellant, Supreme Court No. 20170063

v.

Jeanna Thompson, Wells Co. Case No. 52-2015-DM-00040

Defendant/Appellee ______

CERTIFICATE OF SERVICE

______

[¶1] I hereby certify that on July 14, 2017, the following documents:

APPELLANT BRIEF AND APPELLANT’S APPENDIX

Were emailed to the Clerk of the North Dakota Supreme Court @ [email protected] and courtesy copies were emailed to the following:

Denise Hays - Johnson Attorney for Defendant/Appellee 1111 31st Ave S.W. Ste. C Minot, ND 58701 [email protected]

/S/ Kyle R. Craig______Kyle R. Craig (#07935) ACKRE LAW FIRM, PLLP Attorneys for Plaintiff/Appellant 1809 South Broadway Plaza Suite N Minot, ND 58701 (701) 838-3325 [email protected]