Delzer v. Winn, 920057

• Decision Date: 05 November 1992
• Docket Number: No. 920057,920057
• Parties: Shawna L. Winn DELZER, Plaintiff and Appellee, v. Timothy L. WINN, Defendant and Appellant. Civ.
• Court: North Dakota Supreme Court

Page 741

491 N.W.2d 741

Shawna L. Winn DELZER, Plaintiff and Appellee, v. Timothy L. WINN, Defendant and Appellant.

Civ. No. 920057.

Supreme Court of North Dakota.

Nov. 5, 1992.

H.I. King (argued), Aberdeen, S.D. and Keith A. Wolberg, Bismarck, for plaintiff and appellee.

Wefald Law Office, Ltd., Bismarck, for defendant and appellant; argued by Robert O. Wefald.

ERICKSTAD, Chief Justice.

Timothy Winn appeals from a judgment of the district court changing custody of his two children, Ryan and Sarah Winn, to their mother, Shawna Delzer, formerly Shawna Winn. We reverse.

Shawna and Timothy were married in Beulah, North Dakota, on August 11, 1984. They had two children during their marriage, Ryan and Sarah. They were divorced on January 15, 1990. Following a contested custody hearing, Timothy was awarded custody of the two children, who were of the ages of four years and one and one-half years at that time. Timothy maintained custody of Ryan and Sarah until March 1, 1992, when the district court ordered Timothy to relinquish custody of the two children to Shawna.

During the modification hearing, Shawna conceded that she had experienced personal problems at the time of the original award of custody. She said that at that point in her life she was immature, angry, misguided, and lacked direction. Subsequent to her divorce she moved to Eureka, South Dakota, married Rick Delzer whom she met in church in Bismarck while separated, but not divorced, from Timothy, bought a house with Delzer, and was in the process of completing her nursing degree. Upon receiving her degree, she will be employed by a nursing home in Eureka, three blocks from her home. Her life, according to Shawna, had taken a considerable turn for the better, apparently, now that she was living with a less domineering and more loving person.

This change was instrumental in prompting Shawna to petition the district court for a modification in custody. Shawna asserted that she would be better able to provide a fitting home for her two children than Timothy. She pointed out that she would not be working as many hours as Timothy, so she would have more time to devote to Ryan and Sarah. However, the children would still have to be cared for by someone else during Shawna's eight hour shifts at the nursing home. Shawna showed intense concern over the fact that Ryan and Sarah were taken to Timothy's sister's home for care during the nine or ten hours he was at work. Shawna contended that it was Timothy's sister who was raising the children, not Timothy. Additionally, Shawna urged the district court that she would provide the children with better educational instruction, religious training and medical care.

Shawna contended that Timothy had not discerned that Sarah had ringworm, which Shawna discovered while bathing Sarah. When treated with Tinactin, the ringworm disappeared, only to reoccur on Sarah's temple and be successfully treated on a weekend with Shawna. Shawna also contended that Sarah, on one visit, had not bathed for three days because she refused to take a bath. This, Shawna contended, was because Sarah's feet, which Shawna discovered were blistered, hurt Sarah. After an examination by Dr. Susan Ostrowski of Eureka, and after receiving about four different prescriptions for a fungus, plus an antibiotic, the condition was apparently alleviated. It became necessary also to purchase canvas shoes in lieu of plastic shoes and take other precautionary measures to prevent a reoccurrence. Shawna also found it necessary to take Sarah to the doctor because of a bronchial infection, and she apparently monitored Ryan for his allergies.

Shawna's testimony reflected that her concern went beyond the children's physical health; she was troubled about their mental, emotional and educational well-being as well. Shawna asserted that Ryan might now be dominating Sarah as Timothy had allegedly dominated her during their marriage. Shawna, to aid Ryan in his studies, worked with him on connecting lines in a book of mazes.

All these and other things that Shawna has done for the children are laudable, but hardly something unusual for a loving parent. Further, these actions are what she could continue to do as a non-custodial parent with weekend visitation privileges.

Despite the changes in Shawna's life, very little changed in the custodial parent's life from the time of the divorce to the modification hearing. Timothy remained employed at the coal-gasification plant in Beulah. At the time of the hearing, his sister cared for the children while he was at work, just as she had always done. He had not remarried. He frequently took the children to see both pairs of grandparents, who lived in close proximity to the children and Timothy. Although not a perfect father, he tended to his children's emotional, physical and mental needs to the best of his ability. Ryan and Sarah appeared to be progressing and developing at a normal rate for children their age, and seemed to be happy with their father. ¹

Upon consideration of the evidence, the district court found that the change in Shawna's life equated a significant change in circumstances.

"The court finds changed circumstances here.

".... She is now stable, mature, responsible and employed. The absence of those attributes two years ago at the time of the divorce had great effect on the court in granting custody to the father. Her changed circumstances have resulted in a more balanced or level field between the parents. Where before the court had doubts as to the mother's capacity to care for the children as a custodial parent, those doubts are now resolved favorably to her."

Furthermore, the court went on to find that the best interests of the children would be met by allowing the children to reside with Shawna.

"The court finds more growth potential for the children with the mother than has been demonstrated by the father these past two years. Rearing and nurturing are more than bathing, feeding and clothing. He has performed the latter functions adequately. However, the court finds the mother can excel in the former. The court has been markedly impressed by the mother's efforts, in spite of the distance, to remain intimately involved in and providing the nurturing of these children. A strong emotional bond exists."

Based on these findings, the district court changed custody from Timothy to Shawna, allowing Shawna's previous visitation schedule to become Timothy's. Timothy appeals this decision to our Court. For the reasons that follow, we reverse the district court's judgment, and order that custody of Ryan and Sarah be returned to their father, Timothy.

A court's analysis in considering a motion to modify custody should be different from that used when awarding original custody. Orke v. Olson, 411 N.W.2d 97, 99 (N.D.1987); Miller v. Miller, 305 N.W.2d 666, 671 (N.D.1981). The single issue determined during the original award of custody is the child's best interests. Section 14-09-06.1, N.D.C.C. See also Starke v. Starke, 458 N.W.2d 758, 760 (N.D.App.1990); Orke, 411 N.W.2d at 99; Koller v. Koller, 377 N.W.2d 130 (N.D.1985); Ebertz v. Ebertz, 338 N.W.2d 651, 654 (N.D.1983); Miller, 305 N.W.2d at 671. However, when a motion for modification is before a trial court, it must consider two things:

"First, the trial court must determine whether or not there has been a significant change in circumstances subsequent to the original divorce decree and custody award. Heinen [v. Heinen], 452 N.W.2d at 333; Anderson v. Anderson, 448 N.W.2d 181, 182 (N.D.1989). Second, the trial court must determine whether or not the changes which have occurred are such that it would be in the best interests of the child to modify the original custody award. Heinen, 452 N.W.2d at 333; Anderson, 448 N.W.2d at 182."

Reede v. Steen, 461 N.W.2d 438, 440 (N.D.1990). See also Orke, 411 N.W.2d at 99; Koller, 377 N.W.2d at 130; Ebertz, 338 N.W.2d at 654; Miller, 305 N.W.2d at 671, Silseth v. Levang, 214 N.W.2d 361, 364 (N.D.1974).

The burden of proving the substantial change, and usually its accompanying detrimental effect on the child's best interests, falls on the party seeking the modification of custody. This principle is deeply entrenched in child custody cases.

"The party seeking the modification of the custody award has the burden of showing the existence of a change of circumstances which requires a change in custody. Heinen, 452 N.W.2d at 333; Pitsenbarger v. Pitsenbarger, 382 N.W.2d 662, 664 (N.D.1986)."

Reede, 461 N.W.2d at 440. Thus, in the present case, Shawna has the burden of proving a significant change of circumstances requiring a change of custody.

Here, Shawna contends that the changes in her life are so good that she should now, after the passage of over two years, be given custody. That is not the usual basis for gaining a change in custody. Notwithstanding that fact we must apply the usual standard of review.

"The application of the 'clearly erroneous' standard of review to child custody cases is well-settled. Bader v. Bader, 448 N.W.2d 187, 188 (N.D.1989); Lapp v. Lapp, 293 N.W.2d 121, 124 (N.D.1980). In Lapp we stated that '[a] trial court's determinations on matters of child custody, child support, alimony, and the division of property are treated as findings of fact. The findings of the trial court will not be set aside on appeal unless they are clearly erroneous.' [Citations omitted.] Lapp, 293 N.W.2d at 124-25."

Reede, 461 N.W.2d at 440.

This Court will not reverse the trial court on its findings of fact unless those findings are clearly erroneous pursuant to Rule 52(a), N.D.R.Civ.P. To find a Rule 52(a) error, we must be "left with a definite and firm conviction that a mistake has been made." Miller, 305 N.W.2d at 671. See also Gross v. Gross, 287 N.W.2d 457, 459-60 (N.D.1979).

Significantly, in a very recent case, we noted that "[t]here is an 'aversion' to changing the custody of a happy child who has...