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McDowell v. McDowell11/2/2001
Appeal from the District Court of Ward County, Northwest Judicial District, the Honorable Gary A. Holum, Judge.
AFFIRMED IN PART, REVERSED IN PART, AND REMANDED.
[ ] Jefferey T. McDowell appealed from an amended judgment granting Sharon A. McDowell a divorce, dividing the couple's marital property, granting Sharon custody of the couple's son and Jefferey visitation rights, and ordering Jefferey to pay child support. We conclude the trial court's rulings on property distribution, spousal support, visitation and attorney fees are not erroneous. We further conclude the trial court's rulings on child custody and child support are erroneous as a matter of law. We affirm the amended judgment in part, but reverse the child custody and child support awards and remand for further proceedings.
I.
[ ] Sharon and Jefferey McDowell married in 1988, and had a son, Roy Dennis McDowell, born in 1990. At the time of trial, Jefferey was 36 years old and Sharon was 35 years old. During the marriage, Jefferey was initially employed as a neon tube bender at Bacon Signs in Minot earning between $8.50 and $9 per hour. In 1995, Jefferey had to leave that job because of a work-related shoulder injury. In 1996, Jefferey had surgery on his left shoulder, and his doctors have required that he not use his left shoulder for repeated overhead work and lifting. Jefferey received workers compensation benefits, including vocational rehabilitation in the form of two years of computer training for an associate of arts degree. Jefferey's tuition and books were paid for by the Workers Compensation Bureau and he received $1,400 per month for income replacement benefits while attending college. In January 1999, Jefferey obtained part-time employment at Computer Integration in Minot, working 20 to 25 hours a week for $7.50 per hour. He worked there until May 1999, when he left the family and moved to California. At the time of trial, Jefferey was a full-time student at Minot State University in the process of completing his bachelor of arts degree with financial assistance from Vocational Rehabilitation. He continues to work part-time for $7.50 per hour, and acknowledged there is no physical reason he could not work full-time at his computer job.
[ ] Sharon has a two-year associate of arts degree as a legal secretary. During the marriage, Sharon worked full-time at Cargill, Inc., and at the time of trial, was earning $9.65 per hour plus other benefits. Sharon has elevated pressure in her eyes and is "glaucoma suspect," and needs anti-reflective lenses for night driving. She does not consider her eye problems to be serious. Roy was eight years old at the time of trial. He was not doing well in school and his teachers suggested he be tested for learning disabilities. Jefferey refused to allow Roy to be tested for learning disabilities because he did not want Roy to "carry a label for a lifetime." After Jefferey moved to California, Sharon had Roy tested for learning disabilities. When Jefferey returned to Minot from California in June 1999, Sharon commenced this divorce action.
[ ] The trial court granted the divorce and divided the marital property, awarding Sharon a net amount valued at $34,872, and awarding Jefferey a net amount valued at $28,337. The court denied Jefferey's request that Sharon pay him spousal support. The court further awarded Sharon custody of Roy, subject to Jefferey's right of visitation, and ordered Jefferey to pay $250 per month for child support retroactive to July 1, 1999. The court also denied Jefferey's request for partial attorney fees. Jefferey appealed.
II.
[ ] Jefferey argues the property distribution is inequitable b
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