Bergstrom v. Bergstrom

• Decision Date: 28 July 1980
• Docket Number: No. 9556-A,9556-A
• Citation: 10 A.L.R.4th 812,296 N.W.2d 490
• Parties: Alan BERGSTROM, Plaintiff and Appellant, v. Astrid BERGSTROM and Ida Bergstrom, a minor child, by her Guardian Ad Litem, Cameron L. Clemens, Defendants and Appellees. Civ.
• Court: North Dakota Supreme Court

Page 490

296 N.W.2d 490

10 A.L.R.4th 812

Alan BERGSTROM, Plaintiff and Appellant, v. Astrid BERGSTROM and Ida Bergstrom, a minor child, by her Guardian Ad Litem, Cameron L. Clemens, Defendants and Appellees.

Civ. No. 9556-A.

Supreme Court of North Dakota.

July 28, 1980.

As Amended Sept. 2, 1980.

Lundberg, Conmy, Nodland, Rosenberg, Lucas & Schulz, Bismarck, for plaintiff and appellant; argued by Irvin B. Nodland, Bismarck.

Chapman & Chapman, Bismarck, for defendants and appellees; argued by Daniel J. Chapman, Bismarck.

PEDERSON, Justice.

This case is a continuance, and we hope it is the final resolution, of the custody dispute over Ida Marie Bergstrom (Ida) by her parents, Alan H. Bergstrom (Alan) and Astrid M. Bergstrom (Astrid). It comes to us on appeal by Alan from the Morton County District Court's decision that Ida's best interests require that Astrid have total custody of Ida with limited, supervised visitation by Alan, and with no restriction on Astrid's right to choose Ida's place of residence, including a residence outside of the United States. We reverse and reinstate the prior decree of the Superior Court of Washington, D. C., awarding split custody to Astrid and Alan, conditioned, however:

(1) That because it is in Ida's best interest in this case that she be allowed to remain in the United States, Astrid must maintain a residence for Ida in the United States during this time, and

(2) That because the recommendations of expert witnesses on both sides dictate that it is in Ida's best interests to receive professional help in the form of therapy or counseling, both parents' right to custody is conditioned upon their providing this professional help for her. If they refuse, consideration should be given by the trial court for placing Ida in the care and custody of the appropriate social services agency to see that this therapy is provided.

We remand with instructions to the court to prepare an appropriate order including detailed directions (which were not laid out in the original decree and seemed to be a constant source of problems) as to times, method of pickup and delivery, etc., of visitation periods for the noncustodial parent, to avoid further conflicts between the parties and trauma for the child.

We summarize events to date.

Alan and Astrid were married in 1970 while Alan was in the employ of the Foreign Service. At that time Astrid was a Norwegian citizen and she later became a naturalized American citizen. Ida, their only child, was born in Ethiopia in 1971.

On February 15, 1978, Alan and Astrid were first granted a legal separation after a long and bitter trial. The court found that "both parties emerged . . . as ordinary decent people of good character" and that, "with either parent, the Court is convinced the child will receive loving care, a good education, and live in a pleasant atmosphere with affectionate family ties." Custody of Ida was awarded to Astrid during the school year whether or not Astrid's residence be Norway or the United States, and to Alan during the summer months. Visitation rights by the noncustodial parent were to be established between the parties. The Bergstroms were subsequently divorced February 1, 1979, with the custody arrangements remaining basically the same.

Following the separation, Astrid and Ida moved to Oslo, Norway, where Ida completed the remaining school year in an American school. That summer Ida was returned to the United States to live with her father. During this time Alan filed an action on behalf of Ida in the Burleigh County District Court requesting the court to determine custody and visitation rights. The action was dismissed for failure to satisfy the jurisdictional requirements of the Uniform Child Custody Jurisdiction Act, Chapter 14-14, NDCC. Alan's request for a stay pending appeal to the North Dakota Supreme Court was denied. Bergstrom v. Bergstrom, 271 N.W.2d 546 (N.D.1978). Suit was also filed in Federal District Court for an order prohibiting her removal from the United States. The order was denied (unpublished). Ida returned to Norway.

The next summer, 1979, while Ida was again with her father in North Dakota, an action was commenced in Federal District Court on Ida's behalf by a guardian ad litem, Cameron L. Clemens. The complaint sought injunctive relief prohibiting her removal from the United States by any party on the grounds that Ida's removal violates her right as a citizen to live in this country, and denies her the privileges and immunities enjoyed by United States citizens.

The Federal District Court held that Ida was capable of intelligently exercising her right as a citizen to remain in the United States, and that her removal would deprive her of liberty without due process of law. The court entered an order restraining her removal from the United States. Bergstrom v. Bergstrom, 478 F.Supp. 434 (D.N.D.1979). On appeal to the Eighth Circuit, the Court of Appeals reversed and held that the constitutional issue on Ida's right to remain in the United States was not ripe for consideration by a federal court.

"Since the primary issue is whether changed circumstances warrant modification of the custody arrangement, the constitutional question was obviously not presented in the posture of strict necessity. Under the circumstances, the (federal) district court should have declined to exercise jurisdiction." Bergstrom v. Bergstrom, 623 F.2d 517, (8th Cir. 1980).

After the Federal District Court decision was rendered, but before the Eighth Circuit opinion was issued, a custody action was instituted in the Morton County District Court by Alan Bergstrom. The Morton County court held that it had jurisdiction to hear the case and the matter was tried in December, 1979. Both Alan and Astrid presented expert witnesses to testify as to Ida's emotional and mental state and her best interests. Additionally, Ida was personally interviewed by the trial judge in chambers. Briefly, the court found it was in Ida's best interest that Astrid have total and undivided custody, with restricted, supervised visitation rights for Alan. Further, the court held that "any right the child has to live in the United States is subject to the right of the custodial parent to choose their place of residence, including a residence outside of the United States."

Immediately after the issuance of the order, Alan filed a notice of appeal to this court ¹ and requested a stay pending appeal. The district court denied the request and Alan petitioned this court to stay the order. We granted the stay and ordered that Ida remain in Alan's custody pending the decision of the appeal to this court (and the appeal to the Eighth Circuit Court of Appeals which had not been decided at that point), inasmuch as Ida's constant shifting of custody and surroundings was not in her best interests. Bergstrom v. Bergstrom, 291 N.W.2d 262 (N.D.1980).

In reviewing the Morton County District Court decision, we note that much confusion existed over what was the appropriate test the district court should use to decide whether or not the facts warrant a change of custody. During the trial, the district court judge stated, "I am only concerned what the status of this child is now as opposed to what it was when the decree was entered, that is, a change in circumstances, and other evidence that the parties wish to-that Mr. Nodland (Alan's counsel) may wish to present to show the best interests of the child." (Emphasis added.) However, after advising Alan's counsel to present evidence of changed circumstances, the judge stated in his appendix to the judgment:

"Father's counsel attempted during the course of the hearing to justify a modification of the Superior Court decree based upon the theory of 'changed circumstances.' Nowhere in Title 14 is such a requirement or test described. The only test is the child's present best interest, since the original decree is already conclusive as to such best interest. Section 14-14-14, NDCC."

"Changed circumstances" is a judicially created concept this court has recognized for many years. It has been described as follows:

"A party seeking modification of a divorce decree awarding custody of a minor child must show a change of circumstances or new facts which were unknown to the moving party at the time the decree was entered." Vetter v. Vetter, 267 N.W.2d 790, 792 (N.D.1978).

The need for this showing of changed circumstances is obvious: the original decree is conclusive as to all issues of law and fact (§ 14-14-12, NDCC), and the court should not substitute its judgment as to what is in the best interests of the child. For purposes of finality, a prior decree should not be modified without a showing of a significant need for doing so.

After finding that there has been a change of circumstances, then the court must decide, based on these changes, that it is in the best interests of the child to modify the decree. Jordana v. Corley, 220 N.W.2d 515 (N.D.1974). A finding by the district court as to the best interests of the child is dealt with on appeal as a finding of fact, and a review of that fact is limited to a determination of whether or not it is clearly erroneous under Rule 52(a), N.D.R.Civ.P. Furthermore, a custody award may be set aside if we are left with a definite and firm conviction that a mistake has been made. Gross v. Gross, 287 N.W.2d 457 (N.D.1979).

The district court apparently believed that Alan had not made a sufficient showing of changed circumstances to justify granting his request to modify the prior decree so that he would be awarded total custody of Ida. We agree. However, the district court proceeded to find, without a showing of changed circumstances, that it would be in Ida's best interests to modify the prior decree, giving Astrid total custody of Ida with very limited visitation by Alan. Pursuant to Rule 52(a), N.D.R.Civ.P, we find that after viewing the record as a whole, we are left with a...