DeForest v. DeForest
| Decision Date | 30 April 1975 |
| Docket Number | No. 9077,9077 |
| Citation | 228 N.W.2d 919 |
| Parties | Margaret A. DeFOREST, Plaintiff-Appellant, v. Patrick M. DeFOREST, Defendant-Appellee. Civ. |
| Court | North Dakota Supreme Court |
Syllabus by the Court
1. A review of the findings in a divorce action, including a custody determination, is limited to a determination of whether or not findings are clearly erroneous within the purview of Rule 52(a), N.D.R.Civ.P.
2. The purpose of Rule 52(a) is to enable the appellate court to obtain a correct understanding of the factual issues determined by the trial court as a basis for the conclusions of law, the order for judgment, and judgment entered thereon.
3. Rule 52(a) requires that the trial court find the facts specially.
4. A finding of fact on a controlling issue which fails to show the basis for a trial court's conclusion is held to be clearly erroneous.
5. To the extent that Bryant v. Bryant, 102 N.W.2d 800 (N.D.1960) is inconsistent with this holding, it is overruled.
Bruce E. Bohlman, and Shaft, Shaft, McConn & Fisher, Grand Forks, for plaintiff-appellant; argued by Bruce E. Bohlman, Grand Forks, and Nancy Maxwell, Senior Law Student.
Christensen & Baer, Bismarck, for defendant-appellee; argued by Carma Christensen, Bismarck.
This is an appeal by the plaintiff, Margaret A. DeForest, from a judgment of the district court of Burleigh County granting both Margaret and Patrick M. DeForest a divorce on the ground of irreconcilable differences. The judgment provides for an alternating or split custody of the DeForests' daughter, Margaret Ann. It is from this part of the judgment that Margaret appeals.
Judgment reversed and remanded.
The DeForests were married on August 19, 1967, at Colorado Springs, Colorado. They have one child, Margaret Ann (hereinafter Peggy), born on April 11, 1970. Until the parties separated in June of 1974, they lived in Bismarck where both of them taught school. At the time of the divorce Margaret and Peggy were living in Grand Forks where Margaret was working toward a Masters Degree in special education at the University of North Dakota, and Patrick was living in Bismarck where he taught in the Bismarck public school system.
Philosophical differences over the role of the mother of a preschool child being employed outside the home, and differences regarding household activities and the parties' personal lives were significant reasons why the marriage resulted in divorce. Margaret brought the action on the ground of irreconcilable differences and Patrick counterclaimed on the same ground. A judgment was entered on October 4, 1974, granting each of the parties a divorce.
The divorce decree provides for an alternating or split custody until Memorial Day 1976, with the provision that either party may make application for a hearing to determine subsequent custody. It is from this By an interim order prior to the divorce decree, margaret was awarded temporary custody of Peggy. Margaret and Patrick had a great deal of difficulty dealing with the child custody award and visitation rights under the interim order. They appear to be very bitter toward each other and have let this bitterness permeate their relationships with Peggy. The relations became so strained that Patrick obtained a court order granting him custody of Peggy for the 1974 Labor Day weekend.
part of the judgment that Margaret appeals, asking that sole custody of Peggy be awarded to her. Patrick argues that the split custody decision is not clearly erroneous, but if the court determines that split custody is not in the best interests of Peggy, sole custody should be awarded to him.
Apparently neither of the parties believed that the testimony at the divorce proceeding had any significant bearing on the issues involved. No part of the transcript was incorporated in the appendix as provided in Rule 30 of the North Dakota Rules of Appellate Procedure. Strict adherence to the Rules of Appellate Procedure was not evident in other respects as well.
With regard to the matter of custody of Peggy, the district court made the following findings of fact:
'e. Vacations: During the following holidays the parties shall have alternate custody of the daughter so that a different parent has custody on each succeeding named holiday: Christmas (includes Christmas Eve and Christmas Day), New Year's Day, Easter, The Fourth of July and Thanksgiving. The parent not having custody during the Christmas holiday shall have visitation rights of two hours during that holiday. Holidays shall also include the days off school which are granted in the state in which the daughter is enrolled for that holiday so long as both the plaintiff and the defendant are employed as teachers.
'j. Joint Custody: The plaintiff is awarded custody of the parties minor daughter from this date until January 12, 1975; the defendant is granted custody of said daughter from January 12, 1975, to Memorial Day, 1975; the parties shall each be awarded seven (7) weeks of custody during the 1975 summer with the respective weeks to be determined by the parties and in the absence of such agreement the Court shall make a determination thereon; the plaintiff shall be awarded custody of the minor daughter at the completion of the fourteenth (14th) week of the summer of 1975 but not later than official registration date at the University of North Dakota which custody shall continue until January 20, 1976; the defendant shall be awarded custody from January 20, 1976, until Memorial Day, 1976; either party may make application to the Court for a hearing date for determination of custody subsequent to Memorial Day, 1976, said application to be made during the month of May, 1976; during the periods of custody as hereinbefore set forth, the following rules shall apply: The non-custody parent shall have custody for the Thanksgiving holidays commencing at 5:00 o'clock on Wednesday and termination not later than 9:00 p.m. on the following Sunday; the plaintiff shall have custody during the Christmas vacation period for the year 1974 and for the year 1975 the plaintiff shall have the first week of Christmas vacation and the defendant the second week; the non-custody parent shall be awarded one weekend of visitation each month with this weekend visitation to commence at 5:00 p.m. on Friday evening and to terminate not later than 9:00 o'clock p.m. on Sunday evening; in all cases of the exercise of visitation rights by the non-custody parent at least two days advance written notice shall be given by the non-custody parent clearly indicating the time that said parent (sic) (child) will be taken from the custody parent home and returned thereto by the non-custody parent; the The conclusions of law and the judgment entered contain the identical provisions.
Court takes notice that the evidence presented by the parties does not show any unfitness of either parent.'
After filing a notice of appeal, but prior to the time that Patrick was to take custody of Peggy on January 12, 1975, Margaret filed a motion in the district court to modify the custody award to grant full and absolute custody and control of Peggy to her. Margaret contended that changed conditions and circumstances rendered it necessary for a change in the custody provisions of the judgment, and that periodic and split custody was not in the best interests of Peggy. She also offered to produce testimony concerning the results of psychological testing pertaining to the changed circumstances and the best interests of the minor child. In preparation to oppose this motion, Patrick also underwent psychological testing. The results of these tests were exchanged between the clinical psychologists for each of the parties.
The district court dismissed the motion on the basis that the court had lost jurisdiction of the issue with the appeal to the Supreme Court. This ruling is not challenged in this appeal.
We conclude that the overriding issue in this case is the adequacy of the findings of fact concerning the custody of Peggy. We will also consider whether a split or alternating custody decision is per se erroneous, and whether a split or alternating custody decision is, in fact, a finding that all things are equal, requiring the application of the provisions of § 30--10--06(2), N.D.C.C., relating to custody preference.
A review of the findings in a divorce action, including a custody determination, is limited to a determination of whether or not such findings are clearly erroneous within the purview of Rule 52(a), N.D.R.Civ.P. This position was stated in Ferguson v. Ferguson, 202 N.W.2d 760, 761 (N.D.1972), and has been reaffirmed in Silseth v. Levang, 214 N.W.2d 361 (N.D.1974), Filler v. Filler, 219 N.W.2d 96 (N.D.1974), Jordana v. Corley, 220 N.W.2d 515 (N.D.1974), and Matson v. Matson, 226 N.W.2d 659 (N.D.1975).
Although there is a finding of fact determining the question of the custody of Peggy in this case, we are concerned that such finding does not explicitly state that such disposition is in the best interests of Peggy. 1
In Ferguson we said 'that the best interests of the children of the parties to a divorce action would be served by awarding custody of the children to one party as opposed to the other' is to be dealt with as a finding of fact and, in Matson, supra, at 663, we said:
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