Bergstrom v. Bergstrom, 9556

• Decision Date: 16 October 1978
• Docket Number: No. 9556,9556
• Citation: 271 N.W.2d 546
• Parties: Ida Marie BERGSTROM, a minor child, By and Through her Guardian ad Litem, Alan H. Bergstrom, Petitioner, v. Astrid Maria BERGSTROM, Respondent. Civ.
• Court: North Dakota Supreme Court

Page 546

271 N.W.2d 546

Ida Marie BERGSTROM, a minor child, By and Through her Guardian ad Litem, Alan H. Bergstrom, Petitioner, v. Astrid Maria BERGSTROM, Respondent.

Civ. No. 9556.

Supreme Court of North Dakota.

Oct. 16, 1978.

Irvin B. Nodland and Peter S. Pantaleo, of Lundberg, Conmy, Nodland, Rosenberg, Lucas & Schulz, Bismarck, for petitioner.

Harold L. Anderson and Patrick W. Durick, of Pearce, Anderson, Thames & Durick, Bismarck, for respondent.

VandeWALLE, Justice.

A child-custody battle between Alan H. Bergstrom ("Alan") and Astrid Maria Bergstrom ("Astrid") has spawned this petition. The abstract, sterile legal issue that it presents is whether or not the district court erred in its denial of an application for a stay of execution of an order pending appeal of that order to this court. We are told by petitioner's attorney, however, that our resolution of this narrow issue may determine the immediate fate of Ida Marie Bergstrom ("Ida"), the seven-year-old daughter of Alan and Astrid.

In 1970, Alan, an American citizen, and Astrid, at that time a Norwegian citizen (she became a naturalized American citizen in 1975), were married in Norway. Throughout the course of their marriage, Alan was employed by the United States Government as a foreign service officer, a position necessitating frequent world travel. In 1971, while the couple was in Ethiopia, Ida, their only child, was born. After Ida's birth, the family lived for various periods of time in Ethiopia, the Sudan, Norway, the United States, and Libya.

The couple's marriage foundered, and in September, 1977, they filed an action for divorce in the Superior Court of the District of Columbia ("Superior Court"). The Superior Court tried the matter in January, 1978. The bitterly contested trial lasted 12 days and included the testimony of 18 witnesses (three of whom were psychiatrists) and the presentation of more than 150 exhibits.

Following trial, the Superior Court granted to Astrid a separation from bed and board from Alan. The child-custody determination was, however, more troublesome for the Superior Court. The court found that, with either parent, Ida would receive loving care, a good education, a pleasant atmosphere, and an affectionate family. Nonetheless, because of the hostility between Alan and Astrid and the intention of Astrid, which she stated at trial, to return to Norway with Ida if granted custody, the court recognized that "custody arrangements calling for cooperative action will be difficult." Resolving the issue consistent with the best interests of Ida, the court ordered, in pertinent part:

"2. That the Defendant Astrid S. Bergstrom shall have the care and custody of the Child Ida Marie Bergstrom during the entire school year. During the period of summer vacation the Plaintiff Alan H. Bergstrom shall have the care and custody of the child. In addition, should Defendant Astrid S. Bergstrom and Plaintiff Alan H. Bergstrom reside in the same general area, whether in the United States or Norway, or wherever, mutual visitation rights shall be established by the parties encompassing at a minimum one weekend per month."

Alan appealed from the Superior Court's order; moreover, he asked that a restraining order be issued to prohibit Astrid from removing Ida from the United States pending disposition of his appeal. Subsequently, the request for a restraining order was denied; the appeal, however, is still pending before the appellate courts of the District of Columbia.

After the denial of Alan's request for a restraining order, Astrid returned with Ida to Norway. Ida entered the Oslo American School where, from what we have gleaned from the scant record before us, she performed satisfactorily.

It is at this point that the events resulting in this petition began. In early June, 1978, Alan traveled to Norway to take custody of Ida for the summer months as provided by the Superior Court's order. The parties disagree about the manner in which he removed Ida from Norway and returned with her to Washington, D.C. In any event, following a stopover of undetermined length in Washington, D.C., Alan and Ida arrived in Bismarck, North Dakota, on July 3, 1978.

Alan and Ida spent the remainder of the summer in Bismarck. On August 23, 1978, five days before Ida was to begin the third grade at the Oslo American School in Norway, Alan, as Ida's guardian ad litem, commenced an action in the district court asking, in essence, that the court assume jurisdiction over Ida "for purposes of all child custody determinations and visitations rights." So that it might consider the matter, the district court issued an ex parte order that forbade Ida's removal from the Fourth Judicial District until further order by the court.

On September 14, 1978, the district court conducted a hearing at which Alan appeared personally and through counsel as Ida's representative, and Astrid, still in Norway, appeared only through counsel. On September 18, 1978, in a memorandum opinion and order, the district court found that the jurisdictional requirements of the Uniform Child Custody Jurisdiction Act, Chapter 14-14, North Dakota Century Code, had not been satisfied and that the "best interests of (Ida) dictate(d) that the initial (Superior Court) decree awarding custody (to Astrid) should remain in effect pending final resolution of the question of custody, . . ." Thus the district court dismissed the action. One day later, the district court entered an addendum to its memorandum opinion and order that required Alan, as Ida's guardian ad litem, to return her to "the custody of (Astrid) or of the mother's authorized representative within ten days . . . , unless, during the interim, an order is issued by the Superior Court of Washington, D.C., providing for some other disposition."

Alan subsequently applied to the district court for an ex parte order staying execution of its two orders. The district court denied his application. Alan then petitioned this court for a stay of the orders of the district court pending appeal to this court.

As mentioned above, in denying the application for a stay pending appeal, the trial court concluded that it had no jurisdiction under the Uniform Child Custody Jurisdiction Act, Chapter 14-14, N.D.C.C., and that the best interests of Ida dictated that it should enforce the Superior Court's child-custody decree. These questions will ultimately reach us on appeal, so we do not resolve them now; rather, we confine ourselves to the narrow issue Ida's petition presents: whether or not we should grant a stay pending her appeal to us of the district court's decision.

This court has inherent and constitutional power to act in preservation of its jurisdiction or under Rule 62(L ), N.D.R.Civ.P., to grant a stay pending appeal. See In Interest (Custody) of J. O., a Child, 250 N.W.2d 256 (N.D.1977); Cass County Electric Cooperative, Inc. v. Wold Properties, 253 N.W.2d 323 (N.D.1977).

In Cass County Electric, supra, this court adopted guidelines for a district court to utilize when addressing an application for a stay. The four criteria within these guidelines are: (a) a strong showing that the appellant is likely to succeed on appeal; (b) that unless the stay is granted, the appellant will suffer irreparable injury; (c) that no substantial harm will come to any party by reason of the issuance of the stay; and (d) that granting the stay will do no harm to the public interest. 253 N.W.2d at 326-327. The court further stated that if the district court determined that a stay should be granted, it should set forth its finding with specificity so that, if appellate consideration is requested, this court may better understand the basis of the trial court's decision. Finally, the court observed that an opinion of the district court on such an issue ordinarily will not be set aside unless the district court is found to have abused its discretion.

In In Interest (Custody) of J. O., supra, this court stated that a refusal to stay a lower court's order because its execution had altered the status quo would weaken our authority in child custody situations. Yet, the court noted that this consideration is not determinative and, indeed, is overshadowed by the paramount concern in custody cases for the best interests of the child. Also, consistent with Cass County Electric, supra, the court noted that, for the purpose of determining whether or not to grant a stay pending appeal, appreciable weight will be given to the decision of the district court.

We will apply the Cass County Electric guidelines to Ida's request for a stay.

Under these guidelines, the first criterion is a strong showing that the appellant is likely to succeed on appeal. We do not believe that a strong showing has been made in this instance. The grounds upon which the district court denied relief have been enunciated above. Contrary to those grounds, Ida argues that because, at the time that the Superior Court tried this matter, Alan and Astrid were legal residents of North Dakota, the Superior Court had no authority to issue a custody decree. ¹ Moreover, she urges, in essence, that although she had no significant contact with North Dakota until brought here by her father in July, 1978, pursuant to his rights under the Superior Court's custody order, Section 14-14-03, N.D.C.C., provides the district court with jurisdiction because both she and her father are legal residents of North Dakota. Finally, she asserts that irrespective of Section 14-14-03, N.D.C.C., the district court has jurisdiction to protect her best interests.

The Superior Court's order is currently under appeal in the District of Columbia. Although Ida now alleges that the court had no authority to enter a separation from bed and board because of the residency of the parties (a matter not before this court), such allegation, if proved, would not necessarily determine the issue of jurisdiction for child-custody purposes.

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