Berg v. Berg
Decision Date | 18 April 2002 |
Docket Number | No. 20000355.,20000355. |
Citation | 642 N.W.2d 899,2002 ND 69 |
Parties | Weston L. BERG, Plaintiff and Appellant, v. Brenda M. BERG, Defendant and Appellee. |
Court | North Dakota Supreme Court |
William D. Schmidt, Schmitz, Moench & Schmidt, Bismarck, N.D., for plaintiff and appellant.
Leslie Bakken Oliver, Vogel Law Firm, Bismarck, N.D., for defendant and appellee.
[¶ 1] Weston Berg appealed from an order amending an original divorce decree, following this Court's remand on a prior appeal. We hold the trial court's findings of fact, as supplemented, are not clearly erroneous and they support the court's award of unsupervised visitation to Brenda Berg. We hold the court's directive that Weston Berg pay for the children's health insurance coverage is not in accordance with our statutory law. We further hold the trial court did not abuse its discretion in its award of attorney fees to Weston Berg for the prior appeal. The order amending the divorce decree is affirmed in part, reversed in part, and the case is remanded to the trial court with instructions to amend its order to direct Brenda Berg to pay for healthcare insurance for the children. Weston Berg's request for attorney fees on this appeal is remanded to the trial court for consideration.
[¶ 2] Weston and Brenda Berg were married in 1990 and have two children of their marriage. A judgment was entered by the district court on January 22, 1999 dissolving the marriage, from which Weston Berg appealed. Many facts relevant to this case are set forth in this Court's decision resolving the prior appeal in Berg v. Berg, 2000 ND 36, 606 N.W.2d 895 (Berg I), and will not be reiterated here except as necessary to explain the resolution of the issues in this appeal. In Berg I, this Court affirmed the divorce decree in part and remanded the case to the trial court for further proceedings to address the issues of visitation for Brenda Berg and the providing of healthcare insurance for the children. After a hearing, the district court entered supplemental findings and amended the original divorce judgment.
[¶ 3] In the original divorce judgment the trial court awarded custody of the two children to Weston Berg, after finding that Brenda Berg perpetrated domestic violence during the marriage. The court awarded Brenda Berg unsupervised visitation with the children and Weston Berg appealed from that part of the divorce decree. In Berg I, this Court reversed the award of unsupervised visitation and remanded for additional findings, explaining:
Berg, 2000 ND 36, ¶¶ 8-11, 606 N.W.2d 895.
[¶ 4] Upon remand, the district court entered supplemental findings of fact and continued its directive allowing Brenda Berg unsupervised visitation with the children. On this appeal, Weston Berg asserts the trial court's award of unsupervised visitation to Brenda Berg is clearly erroneous. The trial court's decision on visitation is a finding of fact that will not be reversed on appeal unless it is clearly erroneous. Kluck v. Kluck, 1997 ND 41, ¶ 24, 561 N.W.2d 263. A finding of fact is clearly erroneous only if it is induced by an erroneous view of the law, if no evidence exists to support it, or if, upon review of the entire evidence, we are left with a definite and firm conviction that a mistake has been made. Schiff v. Schiff, 2000 ND 113, ¶ 10, 611 N.W.2d 191.
[¶ 5] The trial court made the following findings of fact relevant to the visitation issue:
[¶ 6] We conclude the trial court's findings of fact are supported by the record and are not clearly erroneous. The evidence shows that Brenda Berg has had a long period of unsupervised visitations with the children without incident or harm to them. The evidence also shows that Brenda Berg has received counseling for her previously uncontrolled anger and behavior and that she has been successful in rehabilitating herself.
[¶ 7] Karen Mueller, a social worker with a masters degree, has provided therapy for Brenda Berg since December 1996. She diagnosed Brenda Berg as having had adjustment disorder with mixed disturbance of emotions and conduct. Weston Berg complained that Brenda Berg presented herself to this therapist and received counseling as merely the victim of abuse and not as the perpetrator of domestic violence. The evidence belies that assertion. Mueller testified Brenda Berg made admissions to her about her own improper conduct in the marriage, stating Mueller testified that she made Brenda Berg understand she needed to look at herself and her role in causing a deterioration of the marriage and to understand her behavior. Mueller testified that through therapy Brenda Berg has "learned a ton about stress management." Mueller's conclusions are more fully explained in her summary notes of therapy sessions between December 16, 1996 and March 16, 1998:
[¶ 8] James Davis, a clinical social worker, did an extensive custody evaluation between Brenda Berg and the children during the pendency of the divorce proceedings. In his report, filed with the district court on May 18, 1998, Davis states in relevant part:
Even though the district court rejected Davis's recommendation that Brenda Berg be granted custody of the children, the court could certainly consider Davis's expert opinion and findings as relevant to the question whether unsupervised visitation by Brenda Berg would endanger the children's physical or emotional health.
[¶ 9] The primary purpose of visitation is to promote the best interests of the children, not the wishes of the parents. Stoppler v. Stoppler, 2001 ND 148, ...
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