Berg v. Berg

• Decision Date: 13 October 1992
• Docket Number: No. 920016,920016
• Parties: Rhonda BERG, Plaintiff, Appellee and Cross-Appellant, v. Richard BERG, Defendant, Appellant and Cross-Appellee. Civ.
• Court: North Dakota Supreme Court

Page 487

490 N.W.2d 487

Rhonda BERG, Plaintiff, Appellee and Cross-Appellant, v. Richard BERG, Defendant, Appellant and Cross-Appellee.

Civ. No. 920016.

Supreme Court of North Dakota.

Oct. 13, 1992.

Pringle & Herigstad, PC., Minot, for plaintiff, appellee and cross-appellant; argued by Carol K. Larson.

Ella Van Berkom Law Firm, Minot, for defendant, appellant and cross-appellee; argued by Ella Van Berkom.

ERICKSTAD, Chief Justice.

In this divorce case, Richard Berg appealed from the trial court's custody decision and property division. Rhonda Berg cross-appealed, alleging error by the court in its award of visitation for Richard and its division of the grain from the 1989 crop. We affirm.

Richard and Rhonda were married in December 1981. They have two children of the marriage: Matthew, born September 15, 1982; and Elizabeth, born March 11, 1985. During the marriage the family resided on a farm near Max. Richard rented land and farmed with his father. During the winter months Richard worked as a welder. Rhonda attended college at Minot State University during the marriage. She received a bachelor of arts degree in elementary education, and at the time of trial was completing work on two masters degrees, one in elementary education and the other in learning disabilities. Over the years, the marriage relationship between Richard and Rhonda deteriorated. Several months after Rhonda attended a seminar in Wisconsin, where she met John Nugent, an elementary school principal from Michigan, Rhonda announced that she wanted to dissolve her marriage with Richard. Rhonda and the children moved from their home at Max during December 1989.

On August 1, 1991, the trial court entered an interlocutory decree, granting Richard and Rhonda a divorce from each other on the grounds of irreconcilable differences, but reserving the other issues, including custody and property division, for resolution at a later time. During the pendency of these divorce proceedings, Rhonda informed the court that she intended to marry Nugent and that she wanted to move with the children to reside with him in Michigan. Following a four-day hearing, the trial court, on January 14, 1992, entered a final amended judgment, settling the custody, property division, and other issues in the case.

The court awarded custody of Matthew and Elizabeth to Rhonda and awarded Richard visitation of "at least 77 consecutive days" during each summer. Richard was also awarded the right to 48-hour weekend visits, upon giving Rhonda proper notice. Rhonda was awarded "reasonable visitation" with the children during the summer. The court also specified that each parent would have alternating Christmas vacations with the children.

Richard appealed the custody award, asserting that the trial court should have awarded custody to him, with reasonable summer visitation for Rhonda. Rhonda cross-appealed from the custody award, asserting that Richard's summer visitation of 77 consecutive days was too much and that she should have been given additional time to be with the children during the summer months.

A trial court's determinations on matters of child custody are findings of fact that will not be set aside on appeal unless they are clearly erroneous. Rule 52(a), N.D.R.Civ.P.; Bashus v. Bashus, 393 N.W.2d 748 (N.D.1986). A finding of fact is clearly erroneous only when the reviewing court is left with a definite and firm conviction that a mistake has been made. Lapp v. Lapp, 293 N.W.2d 121 (N.D.1980). In determining custody, the trial court must consider and evaluate the factors affecting the best interests and welfare of the children, as enumerated under Section 14-09-06.2, N.D.C.C., but the trial court is not required to make separate findings on each relevant statutory factor. Wolf v. Wolf, 474 N.W.2d 257 (N.D.1991). The trial court's findings of fact are sufficient if they afford this court a clear understanding of the factual basis for the trial court's determination. Healy v. Healy, 397 N.W.2d 71 (N.D.1986).

The trial court concluded that it would be in Matthew and Elizabeth's best interests to be in Rhonda's custody during the school year and to live with her and their stepfather in Michigan. The court also concluded that it would be in the children's best interests to have extended visitation with Richard during the summer months. The trial court made numerous specific findings explaining the reasons for its custody decision. We quote the most edifying of those findings here:

"The Court specifically examined the factors required by N.D.C.C. 14-09-06.2 to be considered in determining the best interests and welfare of the children and finds that:

"a. Both Rhonda and Richard love their children a great deal and likewise the children are strongly attached to their parents.

"b. Both parents have the capacity and disposition to give the children love, affection and guidance and to continue their education. Rhonda has a sincere interest in education and higher education as evidenced by her Bachelors Degree in Elementary Education, and her progress towards completion of two Masters degrees, one in elementary education and one in learning disabilities. Prior to the parties' separation, Rhonda had primary responsibility for the children[']s education, such as attending parent[/]teacher conferences, etc. After the parties separated, Richard began to attend these conferences.

"c. Both partners are disposed to providing the children with food, clothing and medical care.

"d. The children have lived with Rhonda as the primary caretaker since the parties' separation in December of 1989.

* * * * * *

"g. Rhonda is in good physical and mental health. Richard, on the other hand, has suffered depression since the parties' separation. He received psychological therapy from Dr. Timothy Eaton, has taken parenting classes from a social worker and has been hospitalized for a hernia operation and was hospitalized for an uncontrollable nose bleed. After a year of therapy with Dr. Eaton, Richard was evaluated by Dr. Podrygula. Psychological evidence presented in Court suggests significant personal difficulties on the part of the Defendant.

"h. * * * * *

"When Rhonda and Richard separated, the children were attending St. Nicholas School in Garrison, where Rhonda was the principal. After Richard's family contacted the school board concerning their belief that Rhonda left Richard for another man, Rhonda was fired from her position. After losing her job, Rhonda was forced to move to Minot, where she elected to continue her education to increase[ ] her employment opportunities in the future. The children have adjusted to the new school system very well and are well equipped to adjust to a new school in the future. Custody awarded to either parent will necessitate a move to a new school.

* * * * * *

"j. * * * * *

"The parties could not agree about Rhonda's desire for higher education and a career outside of the home. Richard disapproved of Rhonda's choice of reading material. He preferred she only read women's or family magazines. In 1985, Rhonda requested marital counseling. Richard refused to participate.

* * * * * *

"1. It was the clear and unequivocal recommendation of Dr. Podrygula that Rhonda be awarded full custody of the children and that Richard be given visitation."

Richard argues that neither Dr. Podrygula nor the trial court gave adequate consideration to the permanence and stability of the children's home at Max, or of the extended family there, including both sets of grandparents with whom the children have developed a strong loving relationship. We disagree that these important factors were not given adequate consideration.

Dr. Podrygula stated in the conclusory remarks of his report that both Richard and Rhonda "are clearly capable of effective parenting behavior." He stated that Richard "probably could give [the children] more continuity with, and access to, the past" but that Rhonda "could likely better prepare them for the future, by exposing them to new people and experiences." The court expressly found that Rhonda was forced to move with the children to Minot to enhance Rhonda's future employment opportunities, after she was fired from her position as principal of the St. Nicholas School in Garrison, because of information Richard and his family gave to the school board about Richard and Rhonda's marital problems. The court also found that the children had been able to adjust very well to the new school system and that, under the circumstances, whichever parent received custody of the children would almost certainly move them to a new school.

The trial court faced the dilemma of balancing the advantages of having the children reside with Richard on the farm at Max, near their extended family, with the positive attributes that residing with Rhonda would offer the children. In that regard, the court agreed with the following statements made by Dr. Podrygula:

" '[Rhonda's] emotional functioning seems a bit more health[y] than Richards; her personality traits and career would probably result in the children being exposed to a lot more new things (and better prepared for independent life, as adults); her very strong education background would give her a lot more technical expertise in raising children and letting them achieve their full potential; and she has demonstrated more effective parenting, at least within the confines of the evaluation process.'

* * * * * *

" 'I am concerned about Richard's maladaptive personality traits and difficulty in controlling his behavior. While he might do a better job inculcating some abstract moral code, I don't think he would do as good a job in preparing his children for a confusing and rapidly changing world, in which people often do not act like we would want them to act.' "

Richard complains that the trial court did not give enough weight to the recommendations of Dr. Timothy Eaton, a licensed clinical...