Gardebring v. Rizzo, 9425

• Decision Date: 31 July 1978
• Docket Number: No. 9425,9425
• Citation: 269 N.W.2d 104
• Parties: Ingrid GARDEBRING, Plaintiff and Appellant, v. Joseph Arthur RIZZO, Defendant and Appellee. Civ.
• Court: North Dakota Supreme Court

Page 104

269 N.W.2d 104

Ingrid GARDEBRING, Plaintiff and Appellant, v. Joseph Arthur RIZZO, Defendant and Appellee.

Civ. No. 9425.

Supreme Court of North Dakota.

July 31, 1978.

Chapman & Chapman, Bismarck, for plaintiff and appellant; argued by Daniel J. Chapman, Bismarck.

Ottmar & Pope, Jamestown, for defendant and appellee; argued by Georgia M. Pope, Jamestown.

ERICKSTAD, Chief Justice.

This is an appeal by Ingrid Gardebring, plaintiff and appellant, from the amended judgment of the Burleigh County District Court modifying the visitation rights of Joseph Rizzo, defendant and appellee, with their daughter, Sophia.

Ingrid and Joseph were granted a divorce in August, 1976, by the Koochiching County District Court in the State of Minnesota. Sophia was born of this marriage on September 4, 1974. In the Minnesota judgment, Ingrid was awarded custody of Sophia, subject to the visitation rights of Joseph as set out in the judgment. Basically, Joseph was entitled to have Sophia with him in International Falls, Minnesota, his place of residence, for one week, every-other-month. In the months when he did not have Sophia with him for the week-long visitation in Minnesota, he was entitled to have Sophia with him for one weekend in the city of Ingrid's residence.

On December 16, 1976, Ingrid commenced an action to modify the visitation rights given to Joseph in the Minnesota judgment. On December 17, 1976, the Burleigh County District Court granted a preliminary restraining order terminating all of Joseph's visitation privileges, pending the outcome of an order to show cause hearing scheduled for January 24, 1977. That hearing was not held until April 4, 1977. On April 21, 1977, Joseph filed an answer to the complaint.

On July 8, 1977, the matter of the modification of the visitation rights was heard before the Burleigh County District Court. At the end of that proceeding, the district court determined that Ingrid had not established that Joseph's extended visitations with Sophia were not in the best interests of the child. The district court modified the visitation provisions, however, by eliminating the six one-week visitations with Joseph in Minnesota, and substituting, therefor, a six-week visitation period with Joseph in Minnesota during the summer months. Judgment was entered accordingly on July 13, 1977.

Ingrid then filed a motion for new trial and for amendment of the findings and judgment. Pursuant to that motion, a hearing was held on July 29, 1977. The district court denied the motion for a new trial, but did amend the findings of fact and conclusions of law. An amended judgment was entered on September 7, 1977. It is from that amended judgment that Ingrid appeals to this court.

Ingrid's objective in seeking a modification of the Minnesota judgment was to secure a limitation in Joseph's visitation rights in Minnesota. She contended that it would be in the best interests of Sophia to limit the visitation rights of Joseph to visits with Sophia in her home in North Dakota. To understand why Ingrid believed it to be in the best interests of Sophia to so limit the visitation rights of Joseph, it is necessary to review the evidence brought out at the trial.

Ingrid and Joseph separated in September, 1975. At that time, Ingrid took Sophia and moved into her parents' home in Bismarck, North Dakota. Ingrid was living with her parents at the time of trial in their new home in Mandan, North Dakota. She had become a North Dakota resident prior to the commencement of the action.

Following the separation, after the divorce action was commenced but before it was concluded, Joseph came to Bismarck in November, 1975, to visit Sophia. Instead of visiting with Sophia in Bismarck as he had agreed to do, Joseph took Sophia to his home in International Falls, Minnesota. At that time, there was no custody order in effect, but Ingrid was able to obtain a court order to regain custody of Sophia.

The next visitation period that Joseph had with Sophia was from the end of December, 1975, to January 4, 1976. Ingrid testified that at the time Joseph came to take Sophia to International Falls, Sophia clung to her and did not want to go. Ingrid also testified to several changes that she noticed in Sophia's behavior upon her return. Ingrid testified that upon Sophia's return she clung to her and that she suffered from diaper rash and diarrhea. According to Ingrid, Sophia's sleeping habits became irregular and she often cried in her sleep. She also testified that there was a definitely observable regression in Sophia's behavior.

The next two visitations in April and August, 1976, were also week-long visitations in International Falls, Minnesota. According to Ingrid, these visitations went smoother, but there were problems that followed them. Sophia would cling to Ingrid and Ingrid's parents more than before the visitation and would get upset when Ingrid's parents went to work. It should be noted that the August visitation was the first visitation period held pursuant to the divorce judgment entered earlier that month.

Joseph did not take advantage of his right to see Sophia in Bismarck for a weekend in September, 1976. Nor did he have Sophia with him in International Falls for a week-long visitation in October as he was entitled to do. There is a conflict in the testimony as to why this October visitation fell through, but apparently an agreement on the visitation for that month could not be reached between the parties.

In November, 1976, Joseph arranged for a weekend visitation in Bismarck with Sophia. Instead of visiting with Sophia in Bismarck, he took her to International Falls in violation of the arrangement worked out with Ingrid for that weekend. The attorneys for both sides became involved in the matter, and Sophia was finally returned several days later by Joseph. Ingrid testified that when Joseph returned Sophia to her, Sophia was not sufficiently clothed for the prevailing weather conditions and she was wearing soiled underpants. Ingrid also testified that following that visitation, Sophia swore a lot, bit herself, clawed her own face, spit, threw severe temper tantrums, and that her sleeping habits deteriorated. According to Ingrid, all of this behavior was uncharacteristic of Sophia prior to the November visitation. Ingrid further testified that this behavior continued for three weeks or more after the visitation.

Dr. Olaf Gardebring, Ingrid's father, also testified at the trial in regard to the behavior of Sophia following the visitation periods. Dr. Gardebring's testimony as to the behavior of Sophia was generally in accord with the testimony of Ingrid. In addition, Dr. Gardebring, who has a PHD in clinical psychology, testified that, in his professional opinion, Sophia was in a state of agitated depression following the November, 1976, visitation.

In addition to Dr. Gardebring, Ingrid presented two other expert witnesses, Dr. Myron Burger and Paige Pederson. Dr. Burger has a doctorate in clinical psychology and at the time of the trial was engaged in private practice in Mandan. Paige Pederson has a Master degree in psychology and has worked with the Bismarck Early Childhood Education Program as an educational evaluator. Essentially, these three experts were in agreement that the formative years of a child are the first six years. During this time, they testified, continuity is very important for a child, and it is very disruptive to the child to have to have week-long visitations away from his "home base". These visitations, the experts agreed, could have a permanent and lasting effect upon the psychological and emotional development of the child.

Dr. Burger further testified that, in his opinion, the best solution for a child of a divorced couple would be to give the child to one parent, and for all practical purposes consider the other parent as non-existent. Dr. Gardebring also testified as to the propriety of visitation rights and stated that he agreed with the following from Beyond the Best Interests of the Child, Goldstein, Freud and Solnit (The Free Press 1973).

"Once it is determined who will be the custodial parent, it is that parent, not the court, who must decide under what conditions he or she wishes to raise the child. Thus, the noncustodial parent should have no legally enforceable right to visit the child, and the custodial parent should have the right to decide whether it is desirable for the child to have such visits. What we have said is designed to protect the child and the custodial parent. At the same time the state neither makes nor breaks the psychological relationship between the child and the noncustodial parent, which the adults involved may have jeopardized. It leaves to them what only they can ultimately resolve." Beyond the Best Interests of the Child, supra at 38.

Consistent with the above philosophy, the authors of Beyond the Best Interests of the Child in the chapter "Provisions for a Model Child Placement Statute" not only recommend a provision which adopts the principal of the "least detrimental available alternative" (P 10.6), which stresses the importance of "maintaining on a continuous, unconditional, and permanent basis a relationship with at least one adult who is or will become the child's psychological parent", and the "state policy of minimizing disruption" (P 30.1), but also recommend a provision which would make all placements "unconditional and final" (P 30.5). ¹

It is in light of this testimony of the experts and the behavior of Sophia following the visitations that Ingrid contends it would be in the best interests of Sophia that the visitation rights of Joseph be severely limited, and it is in this light that Ingrid contends that the district court's findings resulting in the amended judgment are clearly erroneous.

Joseph disagrees with the contention that it would be in the best interests of Sophia to severely limit his visitation rights. First of all,...