Blotske v. Leidholm, 910414

Decision Date28 July 1992
Docket NumberNo. 910414,910414
Citation487 N.W.2d 607
PartiesCindy L. BLOTSKE, f/k/a Cindy L. Leidholm, Plaintiff and Appellant, v. Russell LEIDHOLM, Defendant and Appellee. Civ.
CourtNorth Dakota Supreme Court

Carol Ronning Kapsner of Kapsner and Kapsner, Bismarck, for plaintiff and appellant; appearance by Cindy Blotske.

Richard B. Baer, Bismarck, for defendant and appellee; appearance by Russell Leidholm.

LEVINE, Justice.

Cindy Blotske, formerly Cindy Leidholm, appeals from an amended judgment of the district court changing custody of her youngest daughter, Jessica, to Jessica's father, Russ Leidholm. We reverse and remand.

Russ Leidholm and Cindy Blotske were divorced in January 1988. At that time, they had three minor children: Jessica, 2, Dawn, 16 and Michelle, 17. Relying on the parties' stipulation, the district court granted physical custody of Dawn and Michelle to Russ and physical custody of Jessica to Cindy "subject to reasonable visitation ... at reasonable times and places and upon reasonable notice...." In March 1989, Russ moved the district court to establish a visitation schedule but the record does not indicate how or if the matter was resolved. Russ remarried in October 1989. In May 1990, Russ accused Cindy of child neglect and moved to transfer Jessica's custody to him. Russ later dropped the motion.

Cindy remarried in 1991 and moved from Bismarck to Selfridge. In the spring of 1991, Russ, Dawn and Michelle filed three separate complaints with the Burleigh County Social Services, alleging that Cindy neglected Jessica and that Cindy's husband, Jim Blotske, sexually abused Jessica. A social services team concluded the allegations were "unsubstantiated." In June 1991, Russ again moved to change custody of Jessica. In September 1991, Russ amended his motion to request that, in the alternative, the district court establish a regularized fixed visitation schedule. A two-day trial was held.

On November 18, 1991, the district court ordered Jessica's custody transferred to Russ. After finding several changed circumstances, the district court applied the factors of NDCC Sec. 14-09-06.2, and found that it was in Jessica's best interests to change her custody. A stay was granted pending this appeal.

On appeal, Cindy asserts that the district court order changing custody is clearly erroneous. She argues that none of the changed circumstances requires, in the best interests of Jessica, that custody be changed. We agree.

There is an "aversion" to changing the custody of a happy child who has been living with one parent for a substantial time. See Silseth v. Levang, 214 N.W.2d 361 (N.D.1974). In Von Bank v. Von Bank, 443 N.W.2d 618 (N.D.1989), a custody modification proceeding, we rejected the argument that the court "should protect children and their vital relationship with their primary caretaker and adopt the primary caretaker rule." We explained that even if we were to adopt such a rule, it was unnecessary to do so in a modification proceeding because maintaining the stability of the custodial parent-child relationship was already insured and protected by considerations of finality. Id. at 620-21. These considerations of finality "already guard against modification of a prior custodial decree 'without a showing of a significant need for doing so.' " Id. at 621, quoting Wright v. Wright, 431 N.W.2d 301, 303 (N.D.1988). See also Heinen v. Heinen, 452 N.W.2d 331 (N.D.1990). Our cases thus reflect a preference for maintaining the custodial status quo by requiring a "compelling" or "significant reason" before ordering a change of custody. Orke v. Olson, 411 N.W.2d 97 (N.D.1987), Wright, supra; Starke v. Starke, 458 N.W.2d 758 (N.D.App.1990). The party seeking a change of custody must establish a significant change in circumstances which either "requires" [Lapp v. Lapp, 336 N.W.2d 350 (N.D.1983) ] a change of custody for the child's best interests or "fosters" [Ebertz v. Ebertz, 338 N.W.2d 651 (N.D.1983) ] or "serves" [Ludwig v. Burchill, 481 N.W.2d 464 (N.D.1992) ] the child's best interests. The significant change in circumstances must so adversely affect the child that custody should be changed. Gould v. Miller, 488 N.W.2d 42 (N.D.1992). One of the most beneficial byproducts of protecting custodial stability in custody modification proceedings is its deterrent effect on continuous litigation of custody which, left unchecked, generates cruel emotional and economic strain on all participants to the ultimate detriment of a child's best interests. In any change of custody proceeding, the important factor is the "stability of the child's relationship with the custodial parent." Orke v. Olson, supra. See, e.g., Silseth v. Levang, supra; Lapp v. Lapp, supra.

A trial court's decision to modify custody is a finding of fact subject to the clearly erroneous standard of review. Wright v. Wright, supra. A finding of fact is clearly erroneous if it is induced by an erroneous view of the law, if there is no evidence to support it, or if, although there is some evidence to support it, the reviewing court, on the entire evidence, is left with a definite and firm conviction that a mistake has been made. Id.; see NDRCivP 52(a).

The district court found significant changes in circumstances because of Cindy's interference with visitation by Russ and extended family members. In changing Jessica's custody, the trial court emphasized that Russ would provide Jessica with a loving family, including Ms. Leidholm's children, Jessica's siblings, as well as other members of Jessica's extended family.

It is apparent that the visitation problems in this case are longstanding. Russ made a motion for structured visitation soon after the divorce and, more recently, included in his change-of-custody motion a request for structured visitation. Visitation between a child and her noncustodial parent is presumed to be in the best interests of the child. Dschaak v. Dschaak, 479 N.W.2d 484 (N.D.1992). Visitation is not only a privilege of the noncustodial parent, but also a right of the child. Id. at 487. Only when visitation "is likely to endanger the child's physical or emotional health," may it be withheld. Id.; NDCC Sec. 14-05-22(2).

Having recognized and acknowledged the importance of the noncustodial parent's visitation privilege, we have also emphasized that frustration of visitation does not alone constitute a sufficient change in circumstances to warrant a change in custody. E.g., Ebertz v. Ebertz, supra; Miller v. Miller, 305 N.W.2d 666 (N.D.1981); Muraskin v. Muraskin, 283 N.W.2d 140 (N.D.1979); accord, e.g., Crippen v. Crippen, 508 So.2d 1339 (Fla.App. 4 Dist.1987); Calabrisi v. Boone, 470 So.2d 1255 (Ala.Civ.App.1985). Before visitation problems justify changing custody, there must be a finding that the visitation problems had worked against the child's best interests. E.g., Miller, supra. In this case, while the district court found that Cindy's efforts to frustrate visitation, in effect, deprived Jessica of contact with loving family members, that deprivation is better remedied at first by resort to a more rigid visitation schedule, rather than a change of custody. We conclude that the visitation problems by themselves cannot be said to compel a change in custody and so we must look to the other factors the trial court found significant.

The trial court also found as significant changes of circumstances, Cindy's remarriage and her move from Bismarck to Selfridge. It then applied the factors in NDCC Sec. 14-09-06.2 and concluded that a change of custody was in Jessica's best interests.

We have said that in determining the best interests of a child in a change of custody proceeding, the trial court is to apply the factors in NDCC Sec. 14-09-06.2. E.g., Reede v. Steen, 461 N.W.2d 438 (N.D.1990). However, that application must be done within the constraints of a modification proceeding, as contrasted to an original custody proceeding. In an original custody proceeding, the fact finder is given free rein to weigh each factor as it deems fit, under no constraints (in the majority view) to assign one factor priority or give one factor more weight than another. A trial court making an original award of custody must determine the single issue of what is in the child's best interests. E.g., Heinen v. Heinen, supra. But a modification proceeding is different from an original custody award. In a modification proceeding, the best interests of the child must be gauged against the backdrop of the stability of the child's relationship with the custodial parent. See, e.g., Orke v. Olson, supra; Silseth v. Levang, supra.

The trial court found that Jessica loves her mother but that evidence of the mother's love and emotional ties was sparse and that Russ had the greater capacity and disposition to give the child love, affection and guidance and to continue the education of the child. See NDCC Sec. 14- 09-06.2(1)(b). Yet, at the same time, the trial court found that Jessica was a "normal, healthy, happy, six-year-old who loves her mother and who gets along well in school." It is perverse to determine that a child who is as healthy, happy and well adjusted as Jessica, is, nonetheless, wanting in love and disposition for affection from the mother who has had primary physical custody for nearly four years. While Russ' love and disposition for affection may exceed Cindy's, nonetheless, according to the trial court, "[n]othing in the evidence suggests that [Cindy] lacks the ability to fulfill her parental role"; that "Cindy is presently providing" Jessica with "food, clothing, medical care, and other material needs" and "that there is no substantial evidence that [Cindy] is not presently carrying out her parental responsibilities in an appropriate manner." If this were an original custody proceeding, the finding in favor of Russ would be well within the trial court's prerogative. But this is a change of custody proceeding. Accordingly, we...

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