Sailer v. Sailer

MARING, Justice,

dissenting.

[¶ 55] I agree with parts IIB and III of the majority opinion, but I respectfully dissent from parts IIA, C, and D, and IV. I would reverse the district court’s order.

I

Voluntariness

[¶ 56] The Majority, at ¶ 6, acknowledged that “[t]he trial court did not make an express finding of fact on whether Sandra Sailer voluntarily entered into the prenuptial agreement. However, because the trial court enforced the prenuptial agreement, it can be inferred that the trial court concluded both parties voluntarily entered into the prenuptial agreement.” I am of the opinion that this Court should not be inferring whether the district court reached a legal conclusion on this issue and respectfully dissent from Part IIA of the majority opinion.

[¶ 57] The district court’s decision does not reflect that it considered Sandra Sail-er’s claim that she did not voluntarily en*464ter into the premarital agreement. Whether Sandra Sailer received adequate legal advice before signing the premarital agreement is a question of fact that is a significant factor when weighing the voluntariness of a premarital agreement. See Estate of Lutz, 1997 ND 82, ¶ 34, 563 N.W.2d 90. Sandra Sailer was not represented by an attorney before or at the time of the signing of the premarital agreement. Curtis Sailer hired attorney John Olson and paid for his services. Sandra Sailer was on public assistance at the time and testified she could not afford an attorney. The premarital agreement at paragraph 12 (there are 23 paragraphs) states: “The parties acknowledge that each has had sufficient opportunity prior to executing this agreement to consult with counsel.... ” There is no explicit waiver of counsel in the agreement. Sandra Sailer testified she did not see the final version until the day she signed it. Because the district court judgment does not reflect whether it considered Sandra Sailer’s argument, made the necessary factual findings, or concluded that she voluntarily entered into the premarital agreement, we are unable to adequately review this issue on appeal. See N.D.R.Civ.P. 52(a). Without the requisite factual findings, we are unable to determine whether the factual findings on voluntariness are clearly erroneous. Furthermore, without any indication the court considered and disagreed with Sandra Sailer’s claim, we are unable to determine whether the district court correctly concluded she voluntarily entered into the agreement. Because the district court did not make any factual findings, nor explain its decision on Sandra Sailer’s claim, it erred as a matter of law. See Ebach v. Ebach, 2008 ND 187, ¶ 14, 757 N.W.2d 34. The case should be remanded for the district court to make factual findings as to whether Sandra Sailer received adequate legal advice before signing the premarital agreement and decide the issue of whether Sandra Sailer voluntarily entered into the premarital agreement.

II

Public Assistance

[¶ 58] I also dissent from Part IIC of the majority opinion. On appeal, Sandra Sailer argues she is entitled to spousal support because enforcement of the premarital agreement will likely cause her to seek public assistance. The Majority, at ¶ 20, concluded N.D.C.C. § 14-03.1-06(2) does not preclude enforcement of the premarital agreement. Section 14-03.1-06(2), N.D.C.C., provides:

If a provision of a premarital agreement modifies or eliminates spousal support and that modification or elimination causes one party to the agreement to be eligible for support under a program of public assistance at the time of separation or marital dissolution, a court, notwithstanding the terms of the agreement, may require the other party to provide support to the extent necessary to avoid that eligibility.

[¶ 59] The Majority, at ¶ 20, acknowledged that Sandra Sailer received public assistance after the parties separated, but contends N.D.C.C. § 14-03.1-06(2) does not preclude enforcement of the premarital agreement because she did not receive public assistance at the time of trial. The Majority misinterprets the law. Section 14-03.1-06(2), N.D.C.C., does not require that an individual be eligible to receive public assistance at the time of trial. Rather, N.D.C.C. § 14-03.1-06(2) expressly provides that a party must be eligible for support “at the time of separation or marital dissolution.” (Emphasis added.) After the parties separated and at the time the court issued its interim order, Sandra Sailer was eligible for public assistance. *465The district court should have considered whether to award Sandra Sailer spousal support in order to avoid public assistance and made the requisite findings to support its decision.

[¶ 60] The Majority contends Sandra Sailer has not “provided any evidence that she is likely to qualify for such assistance after trial.” Majority, at ¶20. Again, N.D.C.C. § 14-03.1-06(2) does not require such a showing. However, Sandra Sailer argued that she will likely seek public assistance after the trial. In her trial brief, Sandra Sailer asserted, “[She] has sought, and will likely seek, public assistance in the future. She is struggling financially at this time. Section 14-03.1-06(2) may require Curt to provide sufficient support to ‘the extent necessary to avoid that eligibility.’ ” In her post-trial brief, she argued, “If the Court enforces the agreement, Sandra will be left with little or nothing and will likely be forced to seek public assistance of some sort.”

[¶ 61] Furthermore, testimony at trial established Sandra Sailer was indeed struggling financially. She testified that she had three part-time jobs, had taken tests and met with employees at Job Service to acquire better jobs, but only qualified for part-time jobs. Sandra Sailer also testified that she owed a significant amount of money on credit cards because Curtis Sailer would not provide her money during the marriage and she did not have a job immediately after the parties separated. Sandra Sailer testified one of her credit cards had a balance of over $17,000 because “[i]t is expensive to live when you don’t have any money,” and she did not have a job for the first two months after the parties separated. And yet, the only finding the court made concerning Sandra Sailer’s need to be on public assistance was that, “Sandra has demonstrated that she can be self-sufficient.” The evidence in the record does not support the district court’s finding. The evidence presented establishes that, even if Sandra Sailer continues to work all three jobs, she only earns approximately $774.21 a month or $9,290.52 net annually, making her claims that she will likely need public assistance valid. After paying $232.00 a month child support, she has a net annual income of $6,506.52. The federal poverty guideline for 2008 for one person was $10,400 annually. Federal Register January 23, 2008 (Volume 73, Number 15). Because there is no indication that the district court considered whether Sandra Sailer was entitled to spousal support to avoid public assistance under N.D.C.C. § 14-03.1-06(2) and the district court failed to make the necessary findings, I would reverse on this issue.

Ill

Unconscionability

[¶ 62] I agree with the Majority that the district court’s factual findings on the issue of unconscionability are wholly inadequate. However, I dissent from Part IID of the majority opinion because the undisputed facts from the record prove that the premarital agreement is substantively unconscionable as a matter of law because it is one-sided and imposes a severe hardship on Sandra Sailer.

[¶ 63] North Dakota is unique in its consideration of the unconscionability of premarital agreements. As the Majority recognizes, when North Dakota adopted the Uniform Premarital Agreement Act in 1985, it also enacted a separate provision on unconscionability. See 1985 N.D. Sess. Laws ch. 190, §§ 1-9. The Uniform Premarital Agreement Act includes a provision that precludes enforcement of a premarital agreement if:

*466The agreement was unconscionable when it was executed and, before execution of the agreement, that party:
(1) Was not provided a fair and reasonable disclosure of the property or financial obligations of the other party;
(2) Did not voluntarily sign a document expressly waiving any right to disclosure of the property or financial obligations of the other party beyond the disclosure provided; and
(3) Did not have notice of the property or financial obligations of the other party.

N.D.C.C. § 14 — 03.1—06(l)(b)-

[¶ 64] While the Uniform Premarital Agreement Act precludes enforcement of an unconscionable premarital agreement if certain provisions are met, the Legislative Assembly clearly indicated that this provision did not go far enough. John McCabe, a representative of the National Committee on Uniform State Laws, appeared before the Judiciary Committee on January 23, 1985. Hearing on S.B. 2174 Before the Senate Judiciary Comm., 49th N.D. Legis. Sess. (Jan. 23, 1985) (testimony of John McCabe). He presented the contents of the Uniform Premarital Agreement Act and urged the committee to adopt the uniform act. Hearing on S.B. 2174, supra (Jan. 23, 1985) (testimony of John McCabe). McCabe explained that the Uniform Premarital Agreement Act contained a provision that would render a premarital agreement unenforceable if it was unconscionable. Hearing on S.B. 2174, supra (Jan. 23, 1985) (testimony of John McCabe). McCabe explained that unconscionability is a “contract between parties of unequal bargaining power, where one party has created a contract so onerous to the other party that we cannot in clear conscience regard it as a fair bargain — so we call that contract unconscionable.” Hearing on S.B. 2174, supra (Jan. 23, 1985) (testimony of John McCabe). Several legislators questioned McCabe about the Uniform Premarital Agreement Act, including Senator Olson who posed a hypothetical question about the enforcement of a one-sided premarital agreement. Hearing on S.B. 2174, supra (Jan. 23, 1985) (testimony of Sen. John Olson). Senator Olson asked, “What would happen if a man and a woman married and the premarital agreement provided that he gets everything — everything he earns — everything from his business. He is just responsible for child support. There she is stuck; everything is in his name. They get a divorce.” Hearing on S.B. 2174, supra (Jan. 23, 1985) (testimony of Sen. John Olson). McCabe responded that the first question is “is it an unconscionable agreement?” Hearing on S.B. 2174, supra (Jan. 23, 1985) (testimony of John McCabe). McCabe continued, “I think looking at the terms of it, you’d probably be in a situation where you are saying that it is an unconscionable agreement.” Hearing on S.B. 2174, supra (Jan. 23, 1985) (testimony of John McCabe). He then stated, “Then you’d ask: is there fair and reasonable disclosure of property or a waiver of the disclosure.” Hearing on S.B. 2174, supra (Jan. 23, 1985) (testimony of John McCabe). McCabe explained that if there was disclosure, even if it is unconscionable, it would probably be enforceable. Hearing on S.B. 2174, supra (Jan. 23, 1985) (testimony of John McCabe). Senator Olson responded, “I’m a little bothered by that because I think there is a lot of accumulation that is not known up front. I guess I’m a little bothered by the fact that that could happen.” Hearing on S.B. 2174, supra (Jan. 23, 1985) (testimony of Sen. John Olson).

*467[¶ 65] When the Senate Judiciary Committee met to discuss the bill on January 28, 1985, legislators expressed their concerns with the unconscionability provision in the Uniform Premarital Agreement Act. Hearing on S.B. 2174, supra (Jan. 28, 1985). Senator Olson expressed that “he has reservations about this bill, and is bothered about the unconscionable part of it.” Hearing on S.B. 2174, supra (Jan. 28, 1985) (testimony of Sen. John Olson). Senator Stenehjem indicated that “he has problems with unconscionable also.” Hearing on S.B. 2174, supra (Jan. 28, 1985) (testimony of Sen. Wayne Stenehjem). Senator Olson later stated that “he has trouble with unconscionable, but thinks the bill has merit.” Hearing on S.B. 2174, supra (Jan. 28, 1985) (testimony of Sen. John Olson). Senator Lashkowitz expressed that “he thinks this is a good mechanism but it needs work.” Hearing on S.B. 2174, supra (Jan. 28, 1985) (testimony of Sen. Herschel Lashkowitz).

[¶ 66] The Judiciary Committee met again on February 6, 1985, and moved to amend the bill to add a subsection specifically on unconscionability. Hearing on S.B. 2174, supra (Feb. 6, 1985). The section is entitled “Enforcement of unconscionable provisions” and provides:

Notwithstanding the other provisions of this chapter, if a court finds that the enforcement of a premarital agreement would be clearly unconscionable, the court may refuse to enforce the agreement, enforce the remainder of the agreement without the unconscionable provisions, or limit the application of an unconscionable provision to avoid an unconscionable result.

N.D.C.C. § 14-03.1-07. The committee voted unanimously to attach the amendment to the bill and moved that the bill be passed as amended. Hearing on S.B. 2174, supra (Feb. 6, 1985).

[¶ 67] The additional provision for un-conscionability of a premarital agreement goes further than the provision for unconscionability under the Uniform Premarital Agreement Act. It places no restrictions on what is required to find a premarital agreement unconscionable. The legislative enactment is distinguishable from the Uniform Premarital Agreement Act that limits the enforcement of unconscionable premarital agreements only if three requirements are met. See N.D.C.C. § 14-03.1-06(l)(b); see also Jana Aune Deach, Case Comment, Premarital Settlements: Till Death Do Us Part — Defining the Enforceability of the Uniform Premarital Agreement Act in North Dakota, In re Estate of Lutz, 563 N.W.2d 90 (N.D.1997), 74 N.D. L.Rev. 411, 423 (1998) (concluding that several states have mitigated the seemingly harsh standards of the Uniform Premarital Agreement Act, including North Dakota, which amended the statute to address enforcement of unconscionable premarital agreements). Through the enactment, the Legislative Assembly expressly provided that premarital agreements should not be enforced if they are unconscionable regardless of whether the parties had fair and reasonable disclosure of the property and financial obligations of the other party before entering into the agreement. See 1985 N.D. Sess. Laws ch. 190, § 7.

[¶ 68] In this case, the district court found “[t]he agreement [was] not one-sided as to be unenforceable” and concluded that the premarital agreement was conscionable as a matter of law. It is difficult to imagine a premarital agreement more one-sided than this agreement. This is precisely the factual scenario, whereby one spouse gets everything and the other gets nothing, that legislators expressed concern about when N.D.C.C. ch. 14-03.1 was enacted. The premarital agreement provided that not only all of Curtis Sailer’s *468assets, investments, and property would remain his separate property, but all liquidations and re-investments from that property would also remain his separate property. The premarital agreement also provided that any earnings from either spouse’s services, skills, efforts, and work would be the separate property of the party to whom the earnings and income are attributable. Likewise, any inheritance or gift would be considered each spouse’s separate property. The premarital agreement provided that, in the event of divorce, neither party would be entitled to insurance or retirement benefits from the other party.

[¶ 69] Under N.D.C.C. § 14-05-24(1), “[w]hen a divorce is granted, the court shall make an equitable distribution of the property and debts of the parties.” Sandra Sailer gets none of the marital estate under the premarital agreement unless Curtis Sailer placed property in joint tenancy with her. Under N.D.C.C. § 14-05-25, the court, in rendering the decree of divorce, may assign the homestead to a party and may require either party to give reasonable security for making any payments ordered in the divorce. Sandra Sailer gave up all of her rights under this law in the premarital agreement. Under N.D.C.C. § 14-05-24.1, “the court may require one party to pay spousal support to the other party for any period of time.” Sandra Sailer does not receive any spousal support under the premarital agreement. Under N.D.C.C. § 26.1-36-23.1(2), every health insurance policy must contain a provision that permits continuation of coverage of the insured’s former spouse upon entry of a decree of divorce, if the decree requires the insured to provide continued coverage for that person for up to thirty-six months. Sandra Sailer gave up her right to this support from her former husband under the premarital agreement. Under N.D.C.C. § 30.1-04-02, a decedent’s surviving spouse is entitled to an intestate share and, under N.D.C.C. § 30.1-05-01, has a right of elective share in the decedent’s estate. Sandra Sailer has no rights to any of Curtis Sailer’s estate under the premarital agreement.

[¶ 70] When the parties signed the premarital agreement, Sandra Sailer had no assets and was on welfare; Curtis Sailer had $421,703.52 in assets, investments, and property. During the parties’ marriage, Curtis Sailer worked full time for Dakota Gasification, earning approximately $67,807.00 in 2005. Sandra Sailer earned $4,520.04 in 2005. Over the course of the parties’ nearly fifteen-year marriage, Sandra Sailer worked several part-time jobs and earned approximately $66,000, which averages out to be $5,077.00 a year. At the time of trial, Sandra Sailer was working three jobs and her actual net monthly income was $774.21. Out of that monthly income, she was ordered to pay Curtis Sailer $232.00 a month for child support, leaving her $542.21 a month on which to live. When the parties separated, Curtis Sailer disclosed he had accumulated approximately $800,000 in net assets including a retirement account, investments, and property. In fact, Curtis Sailer’s assets had nearly doubled during his marriage to Sandra Sailer. Included in Curtis Sailer’s assets was a 401k from his employment that he admitted was worth $648,465.26. Shortly after Curtis Sailer filed for divorce, Sandra Sailer submitted a financial statement and affidavit stating she was receiving welfare benefits, had no money on hand, $50 in deposits in the bank, and she and Curtis Sailer had stocks and bonds in the amount of $200 in both their names. After the parties separated, Sandra Sailer invested $959 in a 401k, however that money was no longer in the 401k at trial because Sandra Sailer testified she had to use it to pay rent. The undisputed facts in *469the record show, as a matter of law, that the premarital agreement was unconscionable as enforced. Sandra Sailer is in poverty at the end of a fifteen-year marriage and three children.

[¶ 71] In addition to N.D.C.C. § 14-03.1-07, which expressly provides that unconscionable agreements should not be enforced, this Court’s case law also indicates the premarital agreement is unconscionable and, therefore, unenforceable. In Binek v. Binek, we explained that courts have considered unconscionability of a premarital agreement at both the time of execution of the premarital agreement and at the time of divorce. 2004 ND 5, ¶ 11, 673 N.W.2d 594. This Court, in Binek, considered that when the parties married Theodore Binek’s net worth was $600,000 and Ruth Binek’s net worth was $30,000. Id. at ¶2. When the parties divorced, Theodore Binek’s net worth was approximately $200,000 and Ruth Binek’s $30,000 had been depleted. Id. at ¶ 3. This Court concluded the premarital agreement was not unconscionable when it was executed because the agreement provided that Ruth Binek could keep her premarital assets and allow them to grow, and Theodore Binek was obligated to support her during the marriage. Id. at ¶ 12. The Court also concluded the premarital agreement was not unconscionable when it was enforced “because it did not govern the parties’ rights regarding spousal support.” Id. at ¶ 12. The Court explained, “By not addressing spousal support and allowing Ruth Binek to keep her assets separate from Theodore Binek’s, the agreement created enough leeway to avoid an unconscionable result based upon the parties’ circumstances at the time of dissolution.” Id.

[¶ 72] There is no such provision in this premarital agreement. After approximately fifteen years of marriage, enforcement of the premarital agreement leaves Sandra Sailer with no real property, investments, retirement accounts, or assets. Enforcement of the agreement means she does not receive any spousal support, share in increases in assets acquired during the marriage, or share in the marital home. The parties in Binek each had some assets when they married, and, although there was a disparity in the value of the parties’ assets, the disparity was not as significant as in this case. Furthermore, Ruth Binek was allowed to request spousal support upon termination of the marriage. In this case, Sandra Sailer has no assets, is barred from receiving spousal support, and her “circumstances at the time of dissolution” were incredibly dire. She has few employment skills, which from the record amount to answering telephones and filing.

[¶ 73] Further, this Court’s opinion in Weber v. Weber supports the conclusion that this premarital agreement is unconscionable. In Weber v. Weber, we concluded a property settlement agreement that was entered into by a divorcing couple who had been married twenty-seven days was unconscionable and unenforceable. 1999 ND 11, ¶ 19, 589 N.W.2d 358. The property settlement awarded the wife the husband’s residence that he had owned before marriage, which was valued at $70,000. Id. at ¶¶ 2,16. We concluded the property settlement agreement was unconscionable because the agreement was one-sided, placed a great hardship on the husband, was formed hastily, and, at the time the parties signed the property settlement, the wife was represented by counsel, while the husband was not. Id. at ¶¶ 15-18.

[¶ 74] In this case, Curtis Sailer was represented by counsel, while Sandra Sail-er was not. “Although the parties to a premarital agreement may proceed without counsel, this is a factor that is relevant *470to a finding of unconscionability under the [Uniform Premarital Agreement Act].” Marital Property Law, Effect of Antenuptial Agreement, § 26:9, at 8 (2008 supp.). Additionally, as explained earlier, the agreement is clearly one-sided, as it provides Curtis Sailer is to receive over $800,000 in assets, while Sandra Sailer receives basically no assets, and no spousal support. Furthermore, Curtis Sailer has a well-paying job, where he earns six times what Sandra Sailer earns, and he receives health insurance and retirement benefits. The enforcement of the premarital agreement places a great hardship on Sandra Sailer.

[¶ 75] Finally, in Weber, we stated it is appropriate for a district court to consider the Ruff-Fischer guidelines when determining unconscionability of a settlement agreement of divorcing parties. 1999 ND 11, ¶ 17, 589 N.W.2d 358. We acknowledged that the Ruff-Fischer guidelines are not the standard in a domestic relations case to determine unconscionability of a settlement agreement, however, we explained that application of the guidelines may be helpful “because a domestic relations agreement should not be scrutinized in the same way as a business contract.” Id. While the district court is not required to consider the Ruff-Fischer guidelines when determining the unconscionability of this premarital agreement, consideration of the guidelines may assist the court in determining whether the agreement is so one-sided as to not be enforceable.

[¶ 76] This Court’s holding in Crawford v. Crawford also supports a finding that the premarital agreement is unconscionable. In Crawford, we considered whether the district court abused its discretion when it denied Leslie Crawford’s motion to vacate a divorce judgment. Crawford v. Crawford, 524 N.W.2d 833, 836 (N.D.1994). Leslie Crawford and Kenneth Crawford were married for approximately fifteen years, had four children, and at the time of the divorce, Kenneth Crawford was a medical doctor earning $130,000 a year. Id. at 834. At the time of the divorce, Leslie Crawford was earning $3,600 a year. Id. Without the advice of counsel, Leslie Crawford entered into a stipulated divorce agreement with Kenneth Crawford, whereby Kenneth Crawford was awarded custody of the four children, received the parties’ home, paid for Leslie Crawford’s vehicle, attorney’s fees, and paid her $250 a month spousal support for a six-month period. Id. at 835. Leslie Crawford was to pay Kenneth Crawford $15 a month in child support and received visitation rights. Id. The district court entered a judgment based on this stipulation. Id. Five months after the judgment was entered, Leslie Crawford retained an attorney and moved for relief from the judgment. Id. The district court denied her motion, concluding Leslie Crawford was an intelligent person and there was no evidence of fraud, deceit, coercion, or misrepresentation by Kenneth Crawford. Id. On appeal, Leslie Crawford argued the divorce stipulation agreement was so one-sided and unjust that it must be deemed the product of either Kenneth Crawford’s overreaching or her incapacity to understand it. Id. We agreed with Leslie Crawford and concluded the stipulation was “so one-sided and creates such hardship that it is unconscionable.” Id. We acknowledged that stipulated agreements can provide prompt and peaceful resolution of disputes, but held, “when it is disclosed that a judgment is so blatantly one-sided and so rankly unfair under the uncovered circumstances!,][ ]courts should not enforce it.” Id. at 836. This Court reversed the district court’s denial of the motion to vacate the divorce judgment, concluding “[w]hether a party has agreed to the terms of a stipulation becomes irrel*471evant in light of the damage enforcement of an unconscionable decree would do to the duty and reputation of courts to do justice. Just as courts will not enforce an agreement that is illegal, so too courts should vacate judgments that are unconscionable.” Id.

[¶ 77] This case is substantially similar to Crawford. Like the husband in Crawford, Curtis Sailer earns significantly more than Sandra Sailer, has job security, skills, and a home. An even greater disparity exists here as Curtis Sailer has over $800,000 in assets and Sandra Sailer has virtually no assets. As in Crawford, the present agreement is “so blatantly one-sided and so rankly unfair” that it should not be enforced. Equally applicable to the terms of this premarital agreement is the statement in Crawford: “Whether a party has agreed to the terms of a stipulation becomes irrelevant in light of the damage enforcement of an unconscionable decree would do to the duty and reputation of courts to do justice.” Id.

IV

Custody

[¶ 78] I respectfully dissent from Part IV of the majority opinion. The Majority, at ¶ 34, acknowledges that “[generally, a ‘court cannot make the report of an independent investigator the conclusive basis of its decision regarding the custody of the children. The reason for this rule is usually expressed by the phrase that the trial court cannot delegate to anyone the power to decide questions of child custody.’ Owan v. Owan, 541 N.W.2d 719, 722 (N.D.1996) (citations omitted).” Although the Majority correctly states the rule pertaining to custody investigators, it declines, without analysis, to apply the rule to the present case. The district court held, “[t]he Court has reviewed all of the ‘best interests’ factors in Section 14-09-06.2, N.D. CentCode, as well as the custody investigation report and update of [the custody investigator]. The Court agrees with [the custody investigator’s] analysis and conclusions and finds a, b, c, d, h, and j favor [Curtis Sailer].” The district court provided no further analysis or explanation to support its award of custody to Curtis Sailer. The Majority argues the district court’s conclusion is acceptable because it “observed the custody investigator testify at trial.” See Majority, at ¶ 35. We have repeatedly stated a district court should not regard a custody investigator or guardian ad litem’s testimony and recommendation as conclusive. See Nefzger v. Nefzger, 1999 ND 119, ¶ 20, 595 N.W.2d 583; Schmaltz v. Schmaltz, 1998 ND 212, ¶ 9, 586 N.W.2d 852; Hogan v. Hogan, 2003 ND 105, ¶ 10, 665 N.W.2d 672. The district court abdicated its responsibility to make the custody decision when it regarded the custody investigator’s opinion as conclusive, which it is not permitted to do. See 24A Am.Jur.2d Divorce and Separation § 883 (2008) (“The court cannot delegate to anyone the power to decide custody. It cannot make the report and conclusions of its investigator conclusive.”); 27C C.J.S. Divorce § 1023 (2008) (“The [investigator’s] recommendations are not conclusive.”).

[¶ 79] Furthermore, I am unable to distinguish this case from Owan v. Owan. In Owan, the district court found, “The Court gives [the social worker’s] testimony and opinion a great deal of credibility. The Court has reviewed North Dakota Century Code 14-09-06.2 and does concur with [the social worker’s] findings as follows: the allegations of [the husband’s] physical altercations appear to be minor. In most cases, [the wife] has acted and [the husband] has reacted.” Owan, 541 N.W.2d at 721. We concluded the district court could not merely adopt the findings *472of the expert. Id. at 722. The district court in this case abdicated its role even more so than did the court in Owan. Here, the district court provided absolutely no analysis and adopted the custody investigator’s findings completely. The court did not analyze the applicable factors nor explain its rationale for awarding custody of the children to Curtis Sailer. Rather, it merely stated it had reviewed the statute and custody investigator’s report and agreed with the investigator’s analysis and conclusions. This is wholly inadequate.

[¶ 80] Finally, I also dissent from the Majority’s analysis of factor (d) of the best interest factors. The Majority, at ¶46, acknowledges that the district court “may have inadequately analyzed factor d,” however, it concluded that the weight of the other best interest factors favored Curtis Sailer. Initially, I note the district court did not analyze factor (d) at all. Rather, it merely stated it agreed with the custody investigator’s report and analysis on all the factors. Secondly, the custody investigator’s analysis on this factor was an incorrect application of the law. As the Majority noted, a district court should analyze more than the physical structure or geographic location of the parties’ homes when applying factor (d). While the Majority acknowledges that the district court and custody investigator may have inadequately analyzed this factor, it did not remand for the district court to apply the relevant facts to the law as clarified by this Court. In Gietzen v. Gabel, we explained that when this Court is “unable to say the court correctly applied the law for [a best interest factor],” the custody award should be reversed and remanded for findings under the correct application of one of the best interest factors. 2006 ND 153, ¶ 19, 718 N.W.2d 552. Likewise, in Goter v. Goter, this Court concluded the district court applied the wrong test when deciding whether it should award custody to a psychological parent over a natural parent. 1997 ND 28, ¶ 10, 559 N.W.2d 834. Because the district court applied the wrong legal test, this Court reversed and remanded the matter for the district court to apply the correct test for determining custody. Id. at ¶¶ 11-12. In P.A. v. A.H.O., the mother argued the best interest factors should be given equal weight and custody should be awarded to the party who has the most factors weighing in her favor. 2008 ND 194, ¶ 15, 757 N.W.2d 58. Our Court stated, however, that we have not interpreted “equal consideration” to mean “a mathematical formula by which the factors are added up and the person with the most factors in their favor is awarded custody.” Id. We said some factors may prove more important in one situation than another. Id. Furthermore, in Klein v. Larson, 2006 ND 236, 724 N.W.2d 565, in a concurring and dissenting opinion which I joined, Justice Crothers explained that when the district court misapplies the law, this Court should remand so the district court can complete its fact-finding function. He stated:

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 re-weighing evidence and by making its own findings under statutory factors (d), (f) and (m). Majority opinion at ¶¶ 14,17-21, and 25-27.
[[Image here]]
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 *473Court 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.

Klein, 2006 ND 236, ¶ 34, 724 N.W.2d 565 (Crothers, J., concurring in part and dissenting in part). These cases all indicate that when a district court incorrectly applies the law, the case should be remanded so it can make findings in accordance with the correct application of the law. The same is true of this case. Thus, I would reverse the district court’s award of custody to Curtis Sailer and remand for the district court to appropriately analyze factor (d).

[¶ 81] Mary Muehlen Maring