Gorsuch v. Gorsuch, 11102

• Decision Date: 20 August 1986
• Docket Number: No. 11102,11102
• Citation: 392 N.W.2d 392
• Parties: Larry GORSUCH, Plaintiff and Appellant, v. Blanche GORSUCH, Defendant and Appellee. Civ.
• Court: North Dakota Supreme Court

Page 392

392 N.W.2d 392

Larry GORSUCH, Plaintiff and Appellant, v. Blanche GORSUCH, Defendant and Appellee.

Civ. No. 11102.

Supreme Court of North Dakota.

Aug. 20, 1986.

Howe & Seaworth, Grand Forks, for plaintiff and appellant; argued by Henry H. Howe.

Legal Aid Ass'n, UND School of Law, Grand Forks, for defendant and appellee; argued by Ron Stauske, Senior Law Student, under the direction of Larry R. Spain.

GIERKE, Justice.

Larry Gorsuch appeals from a judgment of divorce entered in the District Court of Grand Forks County on September 12, 1985. We affirm.

Blanche (Gorsuch) Yokum and Larry Gorsuch were married in August 1971. In March 1984, Blanche and Larry separated. They have three children who, at the time of trial, were ages thirteen, eleven and seven.

Larry has served as an enlisted person in the United States Air Force for over 15 years, and as of July 1985 had attained the rank E-7. He is stationed at Grand Forks Air Force Base and resides nearby in Emerado.

In March 1984, Blanche moved into an apartment in East Grand Forks, Minnesota. She is employed as a housekeeper at a local motel and has plans to complete her education.

Pursuant to an interim order of the court, Blanche and Larry shared joint legal and physical custody of the three children during their separation. Blanche had physical custody from 7:30 p.m. Sunday until 5:00 p.m. Friday. Larry had physical custody the remainder of the week. They traded-off the holidays and generally accommodated each other's schedules.

By the judgment of divorce, the trial court awarded Blanche custody of the three children. Larry was granted the right to have reasonable visitation. The trial court suggested that reasonable visitation include every other weekend, alternate legal holidays, alternate birthdays each year and four consecutive summer weeks.

Larry appeals from those portions of the judgment awarding Blanche custody of the children, and a share of Larry's unvested nondisability military retirement pay. He also requests review of the failure of the trial judge to direct which party shall receive the tax exemptions for the three children.

Larry asserts by this appeal that the trial court's award of custody to Blanche was clearly erroneous. The trial court is vested with a great amount of discretion in matters of custody and in the determination of what is in the best interest of a child. A decision of the trial court on these matters will be interfered with only when its findings are clearly erroneous. Rule 52(a), North Dakota Rules of Civil Procedure.

Both Blanche and Larry have separately attempted to provide good homes for the three children. The trial court, as evidenced by the record, did not conclude that Larry was not a good parent. Rather, the court found that the award of custody to Blanche was in the best interests of the children.

Larry apparently believes the award of custody was clearly erroneous primarily because the trial court denied his motions to allow the Gorsuch children to testify regarding their custodial preference. While the children may have been of an age to competently testify, thereby assisting the trial court in the resolution of this sensitive issue, the trial court's unique position to weigh Larry's motions in light of the many circumstances must also be considered.

There is no offer of proof in the record pursuant to Rule 103(a)(2), North Dakota Rules of Evidence. Larry correctly points out that on three separate occasions he made a motion requesting the children be available to testify as to their custodial preference. The substance of the motions contained in the record is that the children were of an age to have input into the proceedings and that Sec. 14-09-06.2, North Dakota Century Code, recites the children's custodial preference as a relevant factor for the trial court's consideration when awarding custody.

The unofficial commentary following Rule 103(a)(2) clearly directs the parties to create a record which will permit informed appellate review. Rule 103(a)(2), N.D.R.Ev., explanatory note. See generally, Signal Drilling Co. v. Liberty Petroleum Co., 226 N.W.2d 148 (N.D.1975). Larry made no offer of proof as to the substance of the evidence he moved to introduce. This Court is unable to review the issue in the absence of such an offer of proof. Cargill, Inc. v. Kavanaugh, 228 N.W.2d 133 (N.D.1975).

In the absence of evidence in the record that the testimonial issue should have been determined differently, which we assume would be the subject of an offer of proof, we cannot conclude that the trial court abused its discretion. Correspondingly, we conclude that the award of custody to Blanche was not clearly erroneous.

The second issue on appeal is whether or not the trial court's award of a portion of Larry's military retirement pay to Blanche as marital property was clearly erroneous. The trial court properly made this award based on the formula as set forth in Bullock. ¹ Bullock v. Bullock, 354 N.W.2d 904 (N.D.1984).

In Bullock, we addressed the issue of the divisibility...