Bergstrom v. Bergstrom

• Decision Date: 27 May 1982
• Docket Number: No. 10094,10094
• Citation: 320 N.W.2d 119
• Parties: Alan BERGSTROM, Plaintiff and Appellee, v. Astrid BERGSTROM, Defendant and Appellant, and Ida Bergstrom, a minor child, by her Guardian Ad Litem, Cameron L. Clemens, Defendant. Civ.
• Court: North Dakota Supreme Court

Page 119

320 N.W.2d 119

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

Civ. No. 10094.

Supreme Court of North Dakota.

May 27, 1982.

Chapman & Chapman, Bismarck, for defendant and appellant Astrid Bergstrom; argued by Daniel J. Chapman, Bismarck.

Lundberg, Conmy, Nodland, Lucas & Schulz, Bismarck, for plaintiff and appellee Alan Bergstrom; argued by Irvin B. Nodland, Bismarck.

Carma Christensen, Bismarck, for defendant Ida Bergstrom, a minor child, by her guardian ad litem, Cameron L. Clemens; not argued or briefed on appeal.

PAULSON, Justice.

Astrid Slettemoen, formerly Astrid Bergstrom, appeals from a modification order dated July 29, 1981, of the District Court of Morton County. We affirm.

This case marks another episode in the custody dispute over Ida Marie Bergstrom between her parents Alan Bergstrom and Astrid Slettemoen. Our court's most recent opinion involving these parties, i.e., Bergstrom v. Bergstrom, 296 N.W.2d 490 (N.D.1980), states the facts as they occurred through December of 1979.

In Bergstrom, supra 296 N.W.2d 490, we reversed a judgment of the District Court of Morton County which had awarded total custody of Ida to Astrid and which had granted limited visitation to Alan. Instead, we awarded split custody to Astrid and Alan, conditioned, in part, on Astrid's maintenance for Ida of a residence within the United States. Following the issuance of our opinion which directed a remand hearing, the District Court of Morton County, on remand, issued an order on September 17, 1980, granting custody of Ida to Astrid during the school year and to Alan during the summer vacation months. A detailed visitation schedule was formulated and incorporated within the trial court's September 17, 1980, order. In this order the trial court also ruled that Astrid "shall be entitled to designate a two week period of visitation during the summer months of each year for purposes of vacationing with the child".

Subsequently, Ida and her mother, Astrid, established residence in Washington, D.C. Alan also moved to the Nation's capital. Astrid later determined to marry Frank Heller, a man who lives and works in Dubai, one of the United Arab Emirates. On July 9, 1981, Astrid made a motion for an order in which she sought a transfer of custody to Alan during the school year and that she have custody of Ida during the summer vacation months. Astrid further requested that she have the right to take the child to "wherever she [Astrid] is then living, whether or not that is within the United States". Astrid also moved that Alan be held in contempt for failure to comply with the order of September 17, 1980, relating to Astrid's two-week summer vacation with Ida. The motion also contained a request for the costs and attorney fees which had been awarded to Astrid by the trial court in the December 5, 1979, trial. Astrid married Frank Heller on July 16, 1981.

In response to Astrid's motion, Alan sought an order granting him permanent custody of Ida, with reasonable visitation restricted to the continental United States, to Astrid. After a hearing, the trial court issued a modification order dated July 29, 1981, granting custody of Ida to Alan during the school year and to Astrid during the summer vacation months. Astrid's "request to be permitted to remove Ida ... from the United States for purposes of visitation ... [was] denied. The trial court granted Astrid "additional periods of visitation" with Ida during the school year upon reasonable notice to Alan. Astrid's motion that Alan be held in contempt and for the payment of attorney fees and costs previously awarded was denied.

The first question for consideration is whether or not the trial court erred in denying Astrid's motion to hold Alan in contempt for an alleged failure to comply with the court order of September 17, 1980, granting Astrid the right to designate a two-week summer vacation with Ida.

As noted above, the provision at issue contained in the order of September 17, 1980, stated:

"Astrid Bergstrom ... shall be entitled to designate a two week period of visitation during the summer months of each year for purposes of vacationing with the child."

From the record, it appears that the first mention of Astrid's desire to take a two-week vacation out of the United States with Ida was at a hearing which was held in the Superior Court of Washington, D.C., on June 8, 1981. At that time Astrid's attorney requested that Astrid be allowed to take Ida to Norway on June 19, 1981. The Superior Court of Washington, D.C., denied this request. In his affidavit, Alan states that the first time that he was notified of Astrid's plan to leave for Norway on June 19, 1981, with Ida was on June 17, 1981, only two days prior to Astrid's and Ida's scheduled departure for the trip to Norway. Alan stated that:

"Astrid refused to assure ... [him that] she would not remove Ida to Dubai";

and that she informed him that it was her intention:

"to return Ida at the end of two weeks without accompanyment [sic ] on an international airplane flight."

In a letter to Astrid dated June 17, 1981, Alan explained his reasons for opposing Ida's trip to Norway: (1) the need for a new custody arrangement due to Astrid's impending move from the United States; (2) his view that the trip would be against the decision in Bergstrom, supra 296 N.W.2d 490; (3) a dispute over his school year visitation rights; and, (4) the fact that he was given only 48 hours' prior notice of Astrid's planned trip with Ida to Norway. Alan and Ida left Washington, D. C., for North Dakota as soon as Ida's school recessed for the summer vacation months.

An appeal will lie to the Supreme Court from an order finding a defendant not guilty of civil contempt. Red River Valley Brick Corp. v. City of Grand Forks, 27 N.D. 431, 146 N.W. 876 (1914). Contempt is committed only when the evidence shows willful and inexcusable intent to violate the order of the court. Raszler v. Raszler, 80 N.W.2d 535, 539 (N.D.1957). The matter of determining whether or not a contempt has been committed is within the sound discretion of the trial judge and his decision should not be disturbed unless there is a plain abuse of discretion. See generally Brierly v. Brierly, 431 A.2d 410 (R.I.1981); 17 C.J.S. Contempt Sec. 57 (1958). Under the particular circumstances of this case, we cannot say that the court abused its discretion in determining that Alan should not be held in contempt for his alleged noncompliance with the court's order.

A further issue raised concerns the trial court's denial of Astrid's request for attorney fees and costs. The award ¹ of attorney fees and costs in the amount of $12,552.90 was incorporated in the February 14, 1980, judgment, which judgment was subsequently reversed in Bergstrom, supra 296 N.W.2d 490 (N.D.1980).

On appeal, Astrid contends that that portion of the district court's February 14, 1980, judgment awarding attorney fees and costs was not canceled by our reversal of the judgment. To support her view, Astrid relies on Hoster v. Hoster, 216 N.W.2d 698 (N.D.1974). In Hoster, supra 216 N.W.2d at 703, the North Dakota Supreme Court upheld an award of attorney fees to the former wife despite such court's reversal of the trial court's order denying the former husband's motion to modify the divorce decree. The case is inapposite to the point in issue. In Hoster, supra, the question of the propriety of the award was before this court on direct appeal by the losing party. In the instant case, the judgment awarding attorney fees and costs was reversed on appeal (Bergstrom, supra 296 N.W.2d 490), and a motion seeking these attorney fees and costs was made subsequent to this court's reversal of the February 14, 1980, judgment which included such award.

Generally, the effect of a reversal on appeal is that the judgment is vacated and the parties are put in the same posture as they were in before the judgment was entered. Dependent orders and proceedings fall with the reversal of the judgment. See generally 5 Am.Jur.2d Appeal and Error Sec. 956 (1962); 5B C.J.S. Appeal and Error Sec. 1951 (1958); cf. Samuel v. White Shield Public Sch. Dist., 297 N.W.2d 421, 425 (N.D.1980) (costs taxed in conjunction with the judgment were set aside because the judgment was set aside). The Supreme Court's reversal of the judgment necessarily reversed the trial court's award of attorney fees and costs. Lerdall v. Lerdall, 199 N.W. 1016 (Iowa 1924). We conclude that the trial court did not err in denying Astrid's request for attorney fees and costs.

The heart of this appeal is the trial court's decision to restrict Astrid's custody of Ida and visitation only within the confines of the United States. Our decision in Bergstrom, supra 296 N.W.2d 490, conditioned the award of custody to Astrid on her maintenance of a residence for Ida in the United States. The impetus for Astrid's motion to modify the judgment was her decision to remarry and leave the United States.

A hearing on Astrid's motion for a modification order was held in the Morton County District Court on July 23, 1981. Ida's guardian ad litem had discussed the possibility of visits to Norway, to Dubai, and to England with Ida and conveyed the child's reactions to the court, when he testified:

"A Ida was very strong in stating that she did not want to leave the United States. Her concern was whether she would be returned to the [this] country not that she was adverse to travel or to visiting other friends or relatives or other countries, but she was concerned that if she did leave the country she would not be returned."

The guardian reported that Ida "did not feel she could trust the [her] mother to bring her back". According to her guardian, Ida's mistrust of her mother extends only to matters involving travel and finances. The guardian...