Ebertz v. Ebertz, 10394
| Citation | 338 N.W.2d 651 |
| Decision Date | 03 October 1983 |
| Docket Number | No. 10394,10394 |
| Parties | John Mark EBERTZ, Plaintiff and Appellant, v. Lana Marie EBERTZ, a/k/a Lana Marie Murphy, Defendant and Appellee. Civ. |
| Court | United States State Supreme Court of North Dakota |
David Garcia, of Garcia & Garcia, Devils Lake, for plaintiff and appellant.
Maureen Foughty White Eagle, of Foughty, Christianson & Thompson, Devils Lake, for defendant and appellee.
John Ebertz appealed from an amended judgment modifying custody of the children born of his former marriage to Lana Ebertz Murphy. The district court of Ramsey County transferred custody from John to Lana. We affirm.
John and Lana were divorced on August 3, 1979. The trial judge at the divorce proceeding adopted their written stipulation, which specified that John would have custody of their two children, Dominic and Nicholas, and that Lana would have reasonable visitation rights. At the time of the divorce, Dominic was 2 1/2 years old and Nicholas was one year old. After the divorce, both John and Lana continued to live in Devils Lake, North Dakota. Lana later moved to Texas.
Lana maintained contact with her children after leaving Devils Lake. She saw them in 1980 for six weeks in Devils Lake; in 1981 for one month in Texas; and in 1982 for the entire summer in Oklahoma, until the hearing for modification of custody in December 1982. She also sent them clothes, toys, and letters.
The children lived in Devils Lake with John, who worked from 7 a.m. until 6 p.m. Monday through Thursday, earning a salary of $159 a week. While John was at work, the children stayed with their aunt until 5 p.m. and then with the aunt's daughter until John returned home from work. John and the children lived in a low-rent housing area.
In 1981 Lana married John Murphy and gave birth to a daughter. When the children visited her that year in her three-bedroom home in Lawton, Oklahoma, she called the Department of Human Services in Lawton, stating that she believed that her ex-husband, John, was not providing adequate care for the children.
In April 1982 the children again visited Lana in Lawton. Although she was supposed to keep the children for only two months, Lana continued to care for the children in Lawton. In June she petitioned the district court in North Dakota to modify custody, seeking to become the custodial parent. She alleged that there had been a material change in circumstances since the divorce decree. In July John applied to the district court in North Dakota to order Lana to show cause why she should not surrender custody of the children to him. The district court denied John any immediate relief and decided to consider at a later hearing John's request for return of the children with Lana's prior petition for modification of custody. The district judge stated that he would resolve the custody dispute when the Department of Human Services in Lawton had completed its pending home study and psychological evaluation of the children.
After the court conducted the hearing, it issued a brief oral opinion transcribed by the court reporter stating that changed circumstances existed and that Lana as the custodial parent would better promote the children's best interests. The court also granted reasonable visitation rights to John.
On appeal John challenges on two grounds the district court's decision to modify the divorce decree by changing custody from John to Lana. He contends that when the district court determined the children's best interests, it failed to make the specific findings of fact required by Rule 52(a), N.D.R.Civ.P. He also argues that the district court's decision to modify custody was clearly erroneous under Rule 52(a).
The trial judge listened to the testimony of four witnesses: John Ebertz; Karen Azure, who took care of the children while John worked; Lana Ebertz Murphy; and John Murphy, Lana's present husband. There was conflicting testimony concerning the home life of the children while they lived in Devils Lake with John.
Lana testified that John failed to provide proper clothing for the children; that the children failed to receive the attention necessary to prepare them for school; that the children frequently used profane language; and that the children witnessed violence and sexual activities between John and his 17-year-old girlfriend.
John denied that he failed to provide adequate clothing and that the children witnessed any sexual acts. He stated that he had heard the children use improper language but had discouraged it. John also declared that he had been aware that Dominic, the older son, needed help because of a learning disability. John admitted that since the divorce he had been convicted of driving while under the influence once and of open container on three occasions.
Karen Azure testified that as the children's aunt she gave Dominic and Nicholas special attention while John worked. She also stated that the children probably learned improper language from children in the neighborhood.
John Murphy testified that he has a good relationship with Dominic and Nicholas and that because he earns an annual salary of more than $40,000, he could provide for Dominic and Nicholas even though he pays support to three children by his former marriages.
In addition to the testimony of these witnesses, the trial court found significant the studies conducted by the Departments of Human Services in Lawton, Oklahoma, and in Devils Lake, North Dakota. The Lawton study indicated that both children have normal intellectual abilities but that their cognitive, perceptive, and motor skills are below the expected levels. When the evaluators asked the children to draw simple forms, the children did not know how to hold a pencil nor could they identify colors. The study attributed the children's deficiencies to "a lack of usual stimulation" available to children. The Lawton study also found that the Murphy home would be a beneficial environment for the children. The Devils Lake study did not evaluate the children, but instead considered John's capacity as a custodial parent. The study concluded that the evaluator could not form an opinion as to John's capabilities as a parent without interviewing the children. The trial court recognized that the conclusion of the Lawton study would be more persuasive if one agency had conducted studies of both parents.
Rule 52(a), N.D.R.Civ.P., states: "In all actions tried upon the facts without a jury ... the...
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