Dschaak v. Dschaak, 910032

• Decision Date: 09 January 1992
• Docket Number: No. 910032,910032
• Citation: 479 N.W.2d 484
• Parties: Bruce DSCHAAK, Plaintiff and Appellee, v. Janice DSCHAAK, Defendant and Appellant. Civ.
• Court: North Dakota Supreme Court

Page 484

479 N.W.2d 484

Bruce DSCHAAK, Plaintiff and Appellee, v. Janice DSCHAAK, Defendant and Appellant.

Civ. No. 910032.

Supreme Court of North Dakota.

Jan. 9, 1992.

Dwight C.H. Kautzmann of Bair, Brown & Kautzmann, Mandan, for defendant and appellant.

Larry W. Quast of Hagen, Quast & Alexander, Beulah, for plaintiff and appellee.

LEVINE, Justice.

In this appeal from a judgment of divorce, Jancie Dschaak challenges that portion of the judgment which grants custody of her son to her ex-husband, Bruce Dschaak, and grants her no extended summer visitation. We affirm as to custody but reverse and remand for modification of visitation.

Jancie and Bruce were married in August 1983 and lived in the Beulah area. They had one son, born in April 1985. In June 1989, Jancie left Beulah with her child and traveled to West Virginia where she attempted to gain custody. But West Virginia, in accordance with the Uniform Child Custody Act, declined to exercise jurisdiction, deferring to North Dakota. On July 17, 1989, Bruce filed for divorce in North Dakota and sought custody of the child. Jancie returned to Bismarck, North Dakota. She intended to move back to West Virginia but she would continue to live in Bismarck if that were necessary to obtain custody.

After a hearing, the trial court awarded temporary custody to Bruce and gave Jancie extensive visiting privileges. During the trial which took four days, Jancie alleged that Bruce physically and verbally abused her throughout the marriage. Bruce countered that Jancie, on several The trial court, in accordance with the child custody factors listed in NDCC Sec. 14-09-06.2 ¹ also found:

                occasions, "slapped him across the face."    The trial court found that Bruce and Jancie "focused on what he or she perceives to be the shortcoming of the other, while at the same time acknowledging that the relationship between parent and child is positive for both and that both are capable of giving the child love, affection, and proper care."
                

"I think there exists love, affection, and positive emotional ties between the child and both parents and that both parents are equally capable and disposed to give the child love, affection, and guidance, and to continue the education of the child, although Mr. Dschaak may be more rigid in this area. Both parents are disposed to provide the child with food, clothing, medical and other remedial care recognized and permitted under the laws of this state in lieu of medical care, and other material needs. The child has lived all his life in a stable, satisfactory environment, and it is desirable that continuity be maintained.

"The parents are both morally fit and are both mentally and physically healthy. The child has a good home, school, and community record. The child has expressed no preference and is too young to have any significance accorded to such a preference had it been expressed. Maintaining a relationship with each parent is equally important to [the child].

"Mr. Dschaak's family unit, extended and otherwise, is settled, as is his future. It is known where the child will be living and the environment in which he lives. That is less true of Mrs. Dschaak's situation.

"I find it would be in the best interests of [the child] to grant his custody to Mr The court then fashioned alternative visitation schedules in an attempt to accommodate Jancie's uncertainty over whether she intended to stay in North Dakota. If Jancie continued to reside near Beulah, there was to be visitation one weekend a month, one week during the Christmas holidays, alternating state-recognized holidays and alternating birthdays of the child. But there was no provision for extended summer visitation if she stayed in North Dakota. If Jancie left North Dakota, she would have six weeks' extended summer visitation and, in every other year, one week during the Christmas holidays.

Dschaak with extensive visitation to Mrs. Dschaak."

On appeal, Jancie raises two issues: (1) whether the district court's award of custody to Bruce was clearly erroneous because the court did not consider the alleged domestic violence inflicted upon Jancie by Bruce; (2) whether the award of visitation was clearly erroneous because it denied Jancie extended summer visitation if she lived in North Dakota.

CHILD CUSTODY

A trial court's determinations of child custody are treated as findings of fact. Freed v. Freed, 454 N.W.2d 516 (N.D.1990). Findings of fact are presumptively correct and are deemed clearly erroneous only when the reviewing court, based upon the entire evidence, is left with a definite and firm conviction that a mistake has been made. Id. A trial court need not make an express finding as to each statutory factor that may affect the best interests of a child but it should do so as to each one that is factually significant in a particular case. See Bader v. Bader, 448 N.W.2d 187 (N.D.1989).

Jancie contends that the trial court did not consider the issue of domestic violence when it determined child custody. ² Jancie points to that portion of the trial court's memorandum opinion, findings and decision which reviewed the statutory factors of NDCC Sec. 14-09-06.2. She says that the court there mentions all the factors with one exception, domestic violence. Jancie argues that the omission of domestic violence from the court's analysis of the statutory factors affecting the child's best interests indicates that the court made a mistake by not evaluating or considering the impact of domestic violence.

This argument, while superficially appealing, does not withstand scrutiny. Although the trial court did not have to make a finding on each statutory factor, it did so anyway with but one exception, domestic violence. Without more, we would be concerned by the trial court's expression of opinion on every statutory child custody factor except domestic violence. However, the trial court, in another part of its written decision, did address the issue of domestic violence: "Mrs. Dschaak was 20 years old when the parties married and was somewhat immature, a fact which Mr. Dschaak instinctively seemed to recognize and take advantage of in a negative way by verbally abusing her, imposing unrealistically high standards on her, and being overly controlling...." The trial court thus considered the evidence of Bruce's abuse and found verbal abuse, and inferentially, no physical abuse and no infliction of fear of imminent physical harm. Consequently, we reject Jancie's claim that the trial court overlooked her allegations of physical and verbal abuse.

We conclude that the custody order was not clearly erroneous for failure of the trial court to consider evidence of domestic violence. ³

SUMMER VISITATION

A trial court's determination on visitation is treated as a finding of fact which will not be reversed unless it is clearly erroneous. Quirk v. Swanson, 368 N.W.2d 557 (N.D.1985); see Schempp-Cook v. Cook, 455 N.W.2d 216 (N.D.1990). The purpose of visitation is to promote the best interests of the child. Muraskin v. Muraskin, 336 N.W.2d 332 (N.D.1983). Ordinarily, visitation between a child and noncustodial parent is viewed as being in the best interests of the child and not merely a privilege of the noncustodial parent but a right of the child. Persons v. Persons, 396 N.W.2d 744 (N.D.1986); Burich v. Burich, 314 N.W.2d 82 (N.D.1981). The noncustodial parent is deprived of visitation only if "visitation is likely to endanger the child's physical or emotional health." NDCC Sec. 14-05-22(2).

Jancie argues that the trial court's visitation order was clearly erroneous because it denied her extended summer visitation with her child if she remained in North Dakota. She argues that it is in her child's best interests to be granted some extended summer visitation with her because a "stable time period" for "meaningful quality visitation" would foster the child-parent relationship in a positive manner apart from what is provided by scattered weekend visits. Bruce argues that Jancie is only concerned with what is best for her, not the child, and says that Jancie has not cited any authority which substantiates her position that extended summer visitation is in their son's best interests.

However, our research indicates that, absent a reason for denying it, some form of extended summer visitation with a fit noncustodial parent is routinely awarded if a child is old enough. E.g., Lithun v. DuPaul, 447 N.W.2d 297 (N...