concurring in part and dissenting in part.
[¶ 33] I concur with that part of the majority opinion concluding factors (d), (f) and (m) of section 14-09-06.2(1), N.D.C.C., were misapplied. However, I respectfully dissent from that portion of the majority’s opinion adjudicating the factors and awarding custody to Larson. Doing so, I am not suggesting Larson should not have custody; instead, that determination is for the district court and not us.
[¶ 34] 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. Unless the facts are undisputed, a district court’s misapplication of law does not warrant this Court taking over the fact-finding function and deciding the case in lieu of the district court. Yet I believe the majority has done just that by reweighing evidence and by making its own findings under statutory factors (d), (f) and (m). Majority opinion at ¶¶ 14, 17-21, and 25-27.
[¶ 35] This Court reviews findings of fact under the clearly erroneous standard. Majority opinion at ¶ 6. Our case law is replete with holdings that we will not retry the case or substitute our judgment for the district court’s if its determination is supported by evidence in the record. See, e.g., Hogue v. Hogue, 1998 ND 26, ¶ 9, 574 N.W.2d 579. This Court also has often said that, unless we are left with a definite and firm conviction a mistake has been made, we will not re-weigh evidence or reassess witness credibility when the record supports the district court’s findings, and that we will not reverse the district court’s decision merely because we might have reached a different result. See, e.g., Hentz v. Hentz, 2001 ND 69, ¶ 6, 624 N.W.2d 694.
[¶ 36] Here, the law was misapplied below. The district court needs to correct that error on remand by applying the disputed facts of this case to the law this Court has directed be used. But instead of remanding to let the district court complete its work, the majority is adjudicating this case under the set of facts that the majority finds persuasive. Doing so, I believe the majority is improperly stepping into the fact-finding role normally reserved to the district court. I therefore respectfully dissent from those portions of the opinion adjudicating facts and ordering entry of judgment for Larson.
[¶ 37] MARY MUEHLEN MARING, J., agrees.