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Foster v. Foster12/14/2004
AFFIRMED.
[ ] Daniel Foster appealed from a divorce decree awarding custody of his two children to Jody Foster. We affirm.
I.
[ ] Daniel Foster and Jody Foster were married in England on September 8, 1990. Two children were born during the 13-year marriage; they were 12 and 9 at the time of trial. Jody Foster had temporary custody while the divorce was pending.
[ ] Daniel Foster was in the Air Force when the parties married. After he was honorably discharged in 1992, they moved to Oregon, where he had been raised. Jody Foster missed her home state of North Dakota, and a year later they moved to Minot where they have lived since. He works as a self-employed handyman earning approximately $12,000 annually. She does medical transcription from her home, working an average of 20 hours each week and earning approximately $400 per month. Both parties have high school diplomas and took some college courses but did not complete degrees.
[ ] Both parties are smokers. Jody Foster struggles with her weight. Otherwise both parties appear to be in good health.
[ ] The parties acknowledge the marriage was strained for many years. Daniel Foster is outgoing and social, while Jody Foster prefers to stay at home. They attended one session of marriage counseling in 1996, and she attended a few additional sessions. She said he was controlling and tried to run her life. Jody Foster has never had a driver's license, and it was suggested during counseling that she should obtain one to help her feel more independent. She still has not taken steps to accomplish this, admittedly because she does not want to.
[ ] Daniel Foster decided to move the family back to Oregon in 2002 because he felt he could make a better living there. He claims he discussed the move with Jody Foster, but she alleges she learned of his intentions from a member of their church. She refused to leave and served him with divorce papers shortly before he was to move.
[ ] Trial was held October 24, 2003, and December 2, 2003. The parties divided their property by agreement prior to trial, leaving the custody of the children as the primary issue at trial. The district judge issued his decision in a letter to the parties on December 15, 2003. The letter stated Jody Foster would have custody and Daniel Foster liberal visitation, he was to pay child support as previously ordered and spousal support of $200 per month for three years, and her attorney was to draft the appropriate documents. Daniel Foster's attorney submitted a proposed order and judgment on December 18, 2003, stating her attorney had failed to prepare the documents and he was exercising his right to do so under N.D.R.Ct. 7.1. Jody Foster's attorney sent a letter on December 19, 2003, saying Daniel Foster's proposed order was improper because it did not contain findings of fact and requesting the judge to provide some guidance so he could draft a document that included findings of fact. There is no record of further correspondence between the judge and Jody Foster's attorney. Jody Foster's attorney submitted a proposed order on January 6, 2004, which included findings of fact similar to those in the guardian ad litem's summation report. Daniel Foster's attorney, through his secretary, sent a letter on January 6, 2004, stating he had objections to the proposed order and would be submitting those objections within 10 days of receipt of the documents as allowed under N.D.R.Ct. 7.1. The judge signed the proposed findings and order prepared by Jody Foster's attorney on January 6, 2004, and the judgment was filed on January 7, 2004. Daniel Foster appealed.
II.
[ ] A trial court shoul
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