concurring and dissenting.
[¶ 23] I respectfully concur in parts II B.2, III, and IV, and dissent from the remainder of the majority opinion. The majority concludes that the district court erred in denying Frueh’s motion for a change of custody. The majority concludes that the court improperly based its decision on its opinion that Frueh is not paying enough child support. I am of the opinion that there is evidence in the record to support the trial court’s finding, and I disagree that the trial court misapplied the law or impermissibly considered the amount of Frueh’s child support obligation or income in its decision that it would not be in the child’s best interest to modify custody.
[¶ 24] The majority opinion concludes that the trial court relied on an impermissible factor in deciding custody because the court referred to the fact that Frueh was paying only $168 per month in child support based on his claim of “minimum wage” income. In the trial court’s analysis of the best interest factors, it does mention these facts in its analysis of factor (c) and factor (m).
[¶ 25] In ¶ 12 of its opinion, the majority quotes at length from the trial court’s analysis of factor (c), but fails to recognize that the trial court found factor (c) “favors neither party.” Therefore, factor (c) did not weigh in favor of Hoheisel. The majority states that only factors (b) and (m) favored Hoheisel, but in fact the trial court also found factor (e), “[t]he permanence as a family unit, of the existing or proposed home,” favored Hoheisel. See N.D.C.C. § 14-09-06.2(l)(e). Frueh does not raise an issue with regard to the trial court’s finding on factor (e). Frueh also does not raise an issue with regard to the trial court’s finding on factor (b), “[t]he capacity and disposition of the parents to give the child love, affection, and guidance and to continue the education of the child.” See N.D.C.C. § 14-09-06.2(1)(b).
[¶ 26] Frueh does raise an objection to the trial court’s finding on factor (m), because of the court’s reference to his “minimum wage” income and his child support payment. The majority opinion, at ¶ 12, quotes this finding:
The Court is troubled by the fact [Frueh], with his large farming operation and his substantial acreage, and his “minimum wage” income, is so very able and willing to provide [the child] with a four wheeler and a snowmobile, more cash than he pays in child support, a checking account, a cell phone and lots of freedom. [Frueh] has clearly been *602engaged in a long term effort to “buy” [the child’s] affection, and his plan has worked. [The child] clearly wants to be with [Frueh], but this treatment will not stop whether [the child] is in [Frueh’s] custody or [Hoheisel’s] custody. [Ho-heisel] does not have the financial resources to compete. This is simply unfair. This factor favors [Hoheisel],
Factor (m), under N.D.C.C. § 14-09-06.2(1), is a consideration of “[a]ny other factors considered by the court to be relevant to a particular child custody dispute.” During the hearing in this case, Hoheisel asked Frueh how many acres he was farming and Frueh answered that he is farming 7,500 acres and has two full-time employees and one part-time employee. The trial court expressed surprise that he was paying minimum wage child support and Frueh responded: “I have a lot of expense.” Frueh’s attorney then asked him on redirect: “For example, if the child support did a review of you now based on last year’s income, your support would probably go up?” Frueh answered: “Yes.” Frueh’s attorney then asked Ho-heisel on recross-examination if there was a child support review pending the outcome of the modification case and Hoheisel answered “[y]es.”
[¶ 27] I am of the opinion that the trial court did not base its decision to deny the motion to modify on its opinion that Frueh was not paying enough child support and, therefore, disagree with the majority’s position. I believe the trial court drew an inference from the evidence that the father inappropriately attempted to recruit his child by giving his child expensive gifts and money, while at the same time claiming his expenses were high so he could not provide more than $168 per month in child support. The trial court found it inconsistent for Frueh to have minimal net income, but yet be able to provide the child a snowmobile, a four wheeler, $4,500 in pay for a summer’s work, and a cell phone contract. The trial court consequently questioned the credibility of Frueh’s motives. The trial court drew the inference from the evidence that the child’s reasons for wanting to live with his dad were influenced by the expensive gifts, money, and freedom he received from his dad and that his dad had created a “fun” environment in order to gain the child’s preference.
[¶ 28] The essence of the trial court’s finding is not that Frueh is paying too little child support and, therefore, his motion to modify custody is denied, but rather that the conduct of Frueh in giving his twelve to thirteen-year-old son significant gifts and money when he has “minimum wage” income calls into question Frueh’s credibility and improper influence on the child’s preference.
[¶ 29] The majority summarily declares that it was impermissible for the trial court to consider his minimum wage income and the amount of child support paid by Frueh without citing one case to support it.
[¶ 80] Our Court has affirmed trial court decisions, in which the trial court considered the economics of the parents in custody determinations. In Woods v. Ryan, the father moved for a modification of custody of the parties’ child who was in the custody of the mother. 2005 ND 92, 696 N.W.2d 508. The trial court granted the father’s motion finding that “[f]actor ‘c’ favors [the father] by his earnings from his employment.” Id. at 1f 12. The trial court further found that the mother had been chronically unemployed. Id. Our Court concluded that the trial court’s findings on factor (c) among others, which favored the father, supported the court’s finding that a change in custody was necessary for the best interests of the child. Id. at ¶ 16.
*603[¶ 31] In P.A. v. A.H.O., an original custody dispute, the trial court found, under factor (c), “that while both parties were equally willing and disposed to provide for J.O.’s needs, P.A. was in a better position to do so because his $28,000 per year salary was greater than A.H.O.’s $17,000 per year income.” 2008 ND 194, ¶ 13, 757 N.W.2d 58. The mother, A.H.O., appealed arguing it was inappropriate to consider a party’s income level in the best interests analysis. Id. Our Court held: “Money alone is not the totality of factor (c), but it has some relevance the district court can consider in its best interests analysis.” Id. We held: “The trial court’s finding on this factor was not clearly erroneous.” Id.
[¶ 32] In McDowell v. McDowell, 2003 ND 174, 670 N.W.2d 876, the father appealed the award of custody of the parties’ son to the mother. The father argued the court improperly found he was not supporting his son, because he was not aware of his obligation. Id. at ¶ 12. The trial court found:
C. Disposition of parents to provide child with food, clothing, and the like. This fact favors [the mother]. When [the father] returned from California to North Dakota, [the father] withdrew over $21,000 from marital assets to support himself. During the interim, [the father] did not provide financial support for [his son], with the exception of purchasing a few items of personal property for [him], and a limited amount of medical expenses. [The father’s] failure to provide support is certainly noted.
Id. Our Court held that “[p]arents should not need a court order to know they are obligated to support their children.” Id. at ¶ 13. We concluded the party’s objection was without merit. Id. In the present case, Frueh admitted that he is underpaying child support for his son.
[¶ 33] In Hogue v. Hogue, 1998 ND 26, 574 N.W.2d 579, the father appealed the trial court’s judgment awarding custody of the parties’ child to the mother. The father argued the trial court erred in its analysis of factor (c). Id. at ¶ 10. The trial court found factor (c) in favor of the mother. Id. at ¶ 7. “Section 14-09-06.2(l)(c), N.D.C.C., states: ‘The disposition of the parents to provide the child with food, clothing, medical care, or other remedial care.... ’ In its findings, the trial court considered [the father’s] failure to have contact with and pay support for his son by a previous marriage as a negative factor against him.” Id. The father argued the trial court erred in considering his failure to make child support payments and that it had no relevancy and was not applicable under N.D.C.C. § 14-09-06.2. Id. at ¶ 10. Our Court disagreed stating: “[The father’s] relationship and child support obligation to [his son from a previous marriage] is relevant to his disposition to provide for [his son]. Even if it does not fit squarely within subsection c, it certainly is a factor which may be considered by the trial court under subdivision m.” Id. at ¶ 12. Our Court held the trial court’s findings were not clearly erroneous. Id.
[¶ 34] Based on our case law, both the fact of Frueh’s increase in income and his admission that he is probably paying less child support than he should are relevant to his motion to modify the custody of his son. They are relevant to Frueh’s disposition and willingness to provide food, shelter, clothing, and other basic needs for his son. The $168 per month in child support probably does not even cover the food the teenage child needs per month. The evidence in the record indicates that it is because of Frueh’s motion to modify custody that a child support review has not taken place. Therefore, even if the majority’s interpretation of the trial court’s find*604ing is accepted, I am of the opinion it was not impermissible for the trial court to consider economic evidence in its determination of whether to modify custody.
[¶ 35] Frueh claimed that there were material changes in circumstances, namely the preference of the child and the mother’s remarriage, which necessitated a change in the physical custody of the child to him. The trial court found neither of these changes necessitated a change in the custody of the child in the best interests of the child. After a review of the 197 pages of transcript, I conclude the findings of the trial court are supported by the evidence in the record and the trial court did not misapply the law or impermissibly consider evidence. I would affirm the order of the trial court denying the motion to modify custody because it is not clearly erroneous.
[¶ 36] Mary Muehlen Maring