Berg v. Berg

Decision Date18 April 2002
Docket NumberNo. 20000355.,20000355.
Citation642 N.W.2d 899,2002 ND 69
PartiesWeston L. BERG, Plaintiff and Appellant, v. Brenda M. BERG, Defendant and Appellee.
CourtNorth 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.

VANDE WALLE, Chief Justice.

[¶ 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.

I. Facts

[¶ 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.

II. Visitation

[¶ 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:

When the court finds domestic violence has occurred, there is a presumption only supervised visitation will be allowed:
If the court finds that a parent has perpetrated domestic violence and that parent does not have custody, and there exists one incident of domestic violence which resulted in serious bodily injury or involved the use of a dangerous weapon or there exists a pattern of domestic violence within a reasonable time proximate to the proceeding, the court shall allow only supervised child visitation with that parent unless there is a showing by clear and convincing evidence that unsupervised visitation would not endanger the child's physical or emotional health.

N.D.C.C. § 14-05-22(3).

The trial court does not outline any clear and convincing evidence presented by Brenda Berg, nor does the court set forth the factors it considered in reaching its conclusion....
The trial court's findings must be sufficiently specific and detailed to apprise a reviewing court of the reasoning and rationale for the decision....
We reverse the award of unsupervised visitation and remand for additional findings.

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:

[Brenda Berg] has received 22½ hours of professional therapeutic counseling, therein addressing [Brenda Berg's] inappropriate conduct towards [Weston Berg] and towards the minor children.... [S]ubsequent to [Brenda Berg's] therapeutic treatment plan, she has not engaged in nor exemplified the unmanaged anger and impulsive behavior demonstrated prior to the parties' separation.
[Brenda Berg] has engaged in unsupervised visitation with the minor children, the same consistent with the stipulated interim order of the parties, and further that [Brenda Berg] has been observed by a mental health professional during 15½ hours of interaction between [Brenda Berg] and the minor children, and that said observations did not disclose nor identify any outbursts of unmanaged anger nor impulsive behavior on the part of [Brenda Berg].
[I]n the absence of confrontational arguments between [Weston Berg] and [Brenda Berg], [Brenda Berg] has exhibited genuine love, concern and parental ability to meet the needs of the minor children.
[T]he confrontational arguments of [Weston Berg] and [Brenda Berg] centered upon finances, place of residence and [Weston Berg's] interest in farming, all of which have been removed by virtue of the separation of the parties during the course of this litigation, and that said separation together with the professional therapeutic counseling and treatment of [Brenda Berg] have prevented any further abusive incidents.
[U]pon all evidence presented in the course of trial herein, the Court finds that the foregoing constitutes clear and convincing evidence that [Brenda Berg] has received the necessary professional therapeutic counseling and treatment so as to correct her impulsive conduct and unmanaged anger, and that there is no longer a risk of harm to the minor children of the parties necessitating supervised visitation.

[¶ 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 "she told me about that situation where she ... was sitting in the back seat and she reached around and I believe knocked Weston's glasses off. She talked about her in arguments swearing, yelling, that kind of conduct." 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:

Brenda has learned a great deal about managing stress in her life. I believe she will need to continue to employ those techniques. Besides the psychotherapy, Brenda is also medically addressing the depression....
I believe I have come to a secure understanding of Brenda by sitting with her through twenty-one (21) hours of therapy. I also believe that in the future, she will not resort to using the primitive neurotic defenses, i.e., yelling and swearing, that she used in the past.

[¶ 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:

I spent eleven and one-half (11.5) hours with Brenda Berg and her children in both public as well as private settings. In all venues, Brenda Berg was able to exercise appropriate parental control....
Kate Berg articulated to her father that she was wanting to spend only one day with her father and "100 with mom" .... I do not interpret Kate's statement to her father as being evidence of either parental alienation on the part of Brenda Berg or a lack of affection for her father on the part of Kate Berg; rather, I believe what we have here is a glimpse into the psyche of a small child who is expressing a need for stability with the person she perceives as her primary parent, Mrs. Brenda Berg.

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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