                Filed 8/6/19 by Clerk of Supreme Court
                      IN THE SUPREME COURT
                    STATE OF NORTH DAKOTA


                                 2019 ND 211


Yanjun Zuo,                                               Plaintiff and Appellant

      v.

Yuanyuan Wang,                                           Defendant and Appellee


                                 No. 20180403


       Appeal from the District Court of Grand Forks County, Northeast Central
Judicial District, the Honorable M. Jason McCarthy, Judge.

      AFFIRMED IN PART, REVERSED IN PART, AND REMANDED.

      Opinion of the Court by McEvers, Justice.

      Kelsey L. Hankey, Grand Forks, ND, for plaintiff and appellant.

      Kristi P. Venhuizen, Grand Forks, ND, for defendant and appellee.
                                     Zuo v. Wang
                                    No. 20180403


       McEvers, Justice.
[¶1]   Yanjun Zuo appeals a district court judgment and post-judgment orders
awarding Yuanyuan Wang marital property, spousal support, and primary residential
responsibility of the parties’ minor child. Zuo argues the court erred in its evidentiary
decisions at trial, and erred in awarding spousal support and primary residential
responsibility to Wang. He also argues the court erred in backdating child support.
We affirm in part, reverse in part, and remand.


                                            I
[¶2]   Zuo and Wang were married in Beijing, China in 1994 and have one child.
Zuo is a professor and researcher at the University of North Dakota earning
approximately $143,400 annually. Wang had a well-paying job in Hong Kong where
she earned approximately $10,000 per month. However, while living in Grand Forks
from 2008 to 2013, and from 2014 to the present, she worked at various positions,
earning between $13.50 and $18 per hour.
[¶3]   Zuo sued for divorce in December 2016. The district court entered an interim
order in March 2017. The interim order was based on the parties’ stipulation and
provided that in lieu of child support, Zuo would pay all of the child’s daycare
expenses. The issue of child support was reserved until trial.
[¶4]   The district court held a four-day bench trial in April and May of 2018. At
trial, the court admitted audio recordings of communications between Zuo and Wang.
Zuo recorded the communications without Wang’s knowledge. Zuo attempted to
introduce English translations of the recordings. Wang objected and the court
excluded the English translations of the recordings.
[¶5]   In its findings of fact, conclusions of law, and order for judgment issued after
trial, the district court found Zuo committed domestic violence against Wang and

                                           1
awarded Wang primary residential responsibility of the child. The court ordered Zuo
to pay $1,335 per month in child support effective as of February 1, 2017. The court
distributed the parties’ marital property and awarded Wang $1,750 in monthly spousal
support for ten years.


                                            II
[¶6]   Zuo argues the district court erred when it did not allow for an English
translation of the audio recordings he submitted at trial. Zuo contends the recordings
show Wang was abusive toward him.
[¶7]   A district court has wide discretion in evidentiary matters, and we will not
overturn a court’s decision to admit or exclude evidence unless the court abused its
discretion. Vandal v. Leno, 2014 ND 45, ¶ 26, 843 N.W.2d 313. A court abuses its
discretion when it acts in an arbitrary, unreasonable, or capricious manner, it
misinterprets or misapplies the law, or its decision is not the product of a rational
mental process leading to a reasoned determination. Zundel v. Zundel, 2017 ND 217,
¶ 27, 901 N.W.2d 731.
[¶8]   The district court found Zuo recorded the interactions between himself and
Wang “in an effort to create prejudicial evidence to introduce at trial.” The court
explained its decision to disallow the translations of the recordings:
                The Court has considered [Wang’s] objection and will sustain
       it, for several reasons.
                First, the translator’s certificate of accuracy indicates that the
       translator translated an original document and the witness [Zuo] is
       unable to describe how the recordings were reduced to a document.
                Second, the Court shares the same concerns as Defense counsel
       regarding the parentheticals.
                And, finally, it will be sustained due to timeliness. It looks like,
       at least from the exhibit list, these recordings . . . were made in 2015
       and 2016; so this should have been taken care of quite some time ago.
[¶9]   The translations were provided to Wang after the deadline under the
scheduling order relating to the exchange of exhibits before trial. Zuo was unable to
answer questions about the translation process. Zuo admitted that some recordings

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had not been saved. The district court adequately explained its decision to exclude
the translations, and its decision was not arbitrary or capricious. We conclude the
court did not abuse its discretion in excluding the translations.


                                          III
[¶10] Zuo argues the district court clearly erred in awarding primary residential
responsibility of the child to Wang.
[¶11] We exercise a limited review of primary residential responsibility decisions.
Grasser v. Grasser, 2018 ND 85, ¶ 17, 909 N.W.2d 99. A district court’s decision on
primary residential responsibility is a finding of fact and will not be overturned on
appeal unless clearly erroneous. Id. A finding of fact is clearly erroneous if it is
induced by an erroneous view of the law, if no evidence supports it, or if this Court,
on the entire record, is left with a definite and firm conviction a mistake has been
made. Id. Under the clearly erroneous standard, we do not reweigh the evidence or
reassess the credibility of witnesses. Id. A court must award primary residential
responsibility in light of the child’s best interests, considering all the relevant best
interest factors under N.D.C.C. § 14-09-06.2(1).
[¶12] Zuo argues the district court erred in finding he committed domestic violence
under N.D.C.C. § 14-09-06.2(1)(j). He argues the court considered hearsay evidence
and there were inconsistencies in the witnesses’ testimony.
[¶13] The district court found Zuo committed domestic violence against Wang on
three occasions, in August 2015, November 2015, and January 2017. In response to
Wang’s 911 call after the August 2015 incident, a UND police officer testified he saw
redness, swelling, and a faint bruise on Wang’s face. He testified that it appeared
Wang had been slapped. The officer arrested Zuo for simple assault. Zuo plead
guilty to a lesser charge of disorderly conduct and received a deferred imposition of
sentence.
[¶14] Wang testified Zuo struck her in the face again in November 2015. Two of
Wang’s witnesses testified they did not observe the incident, but they noticed bruising

                                           3
on Wang’s face after the incident. The district court found another incident of
domestic violence occurred in January 2017. Wang contacted the police, and Zuo was
charged with interference with a 911 call and disorderly conduct. Zuo was placed on
administrative leave following the January 2017 incident.
[¶15] Zuo claims the district court considered hearsay evidence in its domestic
violence findings; however, Zuo did not object to any witnesses’ testimony on the
basis of hearsay. “[H]earsay evidence, if not objected to, may properly be used in a
court proceeding.” Sargent Cty. Bank v. Wentworth, 547 N.W.2d 753, 762 (N.D.
1996). On appeal, Zuo waived any objection based on hearsay by failing to object at
trial. The court made specific findings on domestic violence, and the evidence
supports the court’s findings. We conclude the court’s findings on domestic violence
are not clearly erroneous.
[¶16] Zuo argues the district court erred in its analysis of the remaining best interest
factors. He contends the court ignored significant evidence that was favorable to him
and detrimental to Wang. Zuo’s arguments appear to be a request for this Court to
reweigh the evidence and assess the credibility of witnesses. The court addressed
each factor, finding seven factors favored Wang, zero factors favored Zuo, and five
factors favored neither party.
[¶17] We conclude the district court’s award of primary residential responsibility to
Wang was not clearly erroneous. The court’s findings have support in the record, and
we are not left with a definite and firm conviction a mistake has been made.


                                          IV
[¶18] Zuo argues the district court erred in its analysis of the Ruff-Fischer guidelines
in awarding rehabilitative spousal support to Wang.
[¶19] A district court may award spousal support under N.D.C.C. § 14-05-24.1(1).
A court must consider the Ruff–Fischer guidelines in deciding whether spousal
support is appropriate, including:
       [T]he respective ages of the parties, their earning ability, the duration
       of the marriage and conduct of the parties during the marriage, their
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       station in life, the circumstances and necessities of each, their health
       and physical condition, their financial circumstances as shown by the
       property owned at the time, its value at the time, its income-producing
       capacity, if any, whether accumulated before or after the marriage, and
       such other matters as may be material.
Schmuck v. Schmuck, 2016 ND 87, ¶ 6, 882 N.W.2d 918; see also Fischer v. Fischer,
139 N.W.2d 845, 852 (N.D. 1966); Ruff v. Ruff, 78 N.D. 775, 784, 52 N.W.2d 107,
111 (1952). In addition, the court must consider the needs of the spouse seeking
support and the ability of the other spouse to pay. Schmuck, at ¶ 6. A spousal support
award is a finding of fact that will not be disturbed on appeal unless clearly erroneous.
Id.
[¶20] The district court addressed the Ruff-Fischer guidelines in its findings of fact.
The court found the parties had a long-term marriage, Wang was in need of spousal
support, and Zuo had the ability to pay. The court awarded Wang $1,750 per month
in spousal support for ten years. The court found that Wang will need to find
employment in addition to spousal support to support herself. The court explained,
“[t]his [spousal support award] will allow [Wang] sufficient time to pursue a career
and/or additional schooling here to better her station in life and her ability to support
herself. Even with the award of rehabilitative spousal support, [Wang] will need to
find employment and tap her savings to support herself.”
[¶21] The evidence in the record supports the district court’s findings, and we are not
left with a definite and firm conviction a mistake has been made. The court did not
clearly err in awarding Wang rehabilitative spousal support for ten years.


                                           V
[¶22] Zuo argues the district court erred in its analysis and distribution of the marital
estate. Specifically, he claims the court erred when it included in the marital estate
an $85,000 gift Zuo made to his family in 2014. Zuo asserts Wang also gifted money
to family and the court should have included those gifts in the marital estate. Again,
it appears Zuo is asking this Court to reweigh the evidence relating to the court’s
decision.
                                           5
[¶23] The district court found that in May and October of 2014, Zuo gifted $85,000
to his sister. The court found Zuo gifted the $85,000 in an attempt to conceal money.
The court found that near the time of the money transfers he changed the address for
the bank statements and did not initially disclose the gift to Wang. We conclude the
court did not clearly err in its valuation and distribution of the marital estate.


                                           VI
[¶24] Zuo argues the district court erred in awarding retroactive child support that
conflicted with the interim order. He claims his child support obligation should have
begun the month following entry of judgment rather than February 2017.
[¶25] The parties executed a stipulation for an interim order relating to primary
residential responsibility, child support, and other issues. The district court accepted
the parties’ stipulations and entered the interim order. Regarding child support, the
interim order provides:
               CHILD SUPPORT: [Zuo] is paying all of the daycare expenses
       for the minor child in lieu of child support. The issue of child support
       shall be reserved until a final Judgment is entered in this matter, at
       which time the child support obligation shall not be backdated or made
       retroactive but shall commence with the month following entry of
       Judgment.
The court entered final judgment in September 2018. Under the judgment, the court
ordered Zuo to pay $1,335 per month in child support beginning February 1, 2017.
[¶26] A district court’s decision whether to award past child support is discretionary
and will not be reversed unless the court abuses its discretion. Rhodenbaugh v.
Rhodenbaugh, 2019 ND 109, ¶ 16, 925 N.W.2d 742. Under N.D.C.C. § 14-09-09.32,
“[a]n agreement purporting to relieve an obligor of any current or future duty of child
support is void and may not be enforced.”
[¶27] The interim order plainly states child support will not be backdated and will
begin the month following entry of judgment. Although N.D.C.C. § 14-09-09.32
prohibits an agreement relieving an obligor of child support, the parties’ agreement
here was accepted and adopted by the court in its interim order. Additionally, the

                                           6
order did not completely relieve Zuo of child support. Zuo financially supported the
child by paying all of the daycare expenses during the pendency of the action. In its
findings the court stated “there was little if any evidence that [Zuo] provided financial
support for A.Z. since the pendency of this action.” Other than that statement, the
court did not find Zuo failed to comply with the interim order or that it erred in
adopting the interim order.
[¶28] Because the interim order provided child support would not begin until the
month following entry of judgment, we conclude the district court abused its
discretion by backdating Zuo’s child support obligation to February 1, 2017. We
reverse the judgment and remand for entry of judgment ruling Zuo’s child support
obligation began the month following entry of judgment.


                                          VII
[¶29] Zuo also filed a notice of appeal from the district court’s order denying his
post-judgment motion to reconsider and amend the findings and motion for stay of
enforcement of order. Zuo provided no argument on appeal relating to the court’s
order denying his post-judgment motions. We therefore decline to address Zuo’s
appeal of the post-judgment order and affirm the order.




                                           7
                                        VIII
[¶30] We have considered the parties’ remaining arguments and conclude they are
either without merit or not necessary to our decision. The judgment is affirmed in
part, reversed in part, and remanded. The post-judgment order is affirmed.
[¶31] Lisa Fair McEvers
      Jerod E. Tufte
      James D. Gion, D.J.
      Gerald W. VandeWalle, C.J.

       I concur in the result.
       Daniel J. Crothers

[¶32] The Honorable James D. Gion, D.J., sitting in place of Jensen, J., disqualified.




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