Goter v. Goter, 960123
Decision Date | 14 February 1997 |
Docket Number | No. 960123,960123 |
Citation | 559 N.W.2d 834 |
Parties | Todd P. GOTER, Plaintiff and Appellee, v. Sheri L. GOTER, n/k/a Sheri L. Monge, Defendant and Appellant, and Darin Goter and Beverly Goter, Intervenors and Appellees. Civil |
Court | North Dakota Supreme Court |
Joanne H. Ottmar, of Ottmar & Ottmar, Jamestown, for plaintiff and appellee.
Cynthia Schaar-Mecklenberg, of Paulson & Merrick, Jamestown, for defendant and appellant.
Loren C. McCray, Beulah, for intervenors and appellees.
¶1 Sheri L. Goter, now known as Sheri L. Monge (Monge), has appealed from an amended divorce judgment providing that she share custody of her daughter, Ashley Goter, with Darin and Beverly Goter (Goters), Ashley's paternal uncle and aunt. We conclude the trial court used an incorrect test in deciding custody, and we reverse the judgment and remand for redetermination.
¶2 Ashley Goter was born on September 1, 1992, to Todd Goter and Monge, who married on November 21, 1992, and separated in July 1994. On November 28, 1994, Monge left Ashley with Todd's mother and stepfather, Dee and Mel Weisenberger, along with a letter explaining she knew Dee and Mel could provide for Ashley much better than she could. A stipulated divorce judgment entered on December 30, 1994, granted Todd the primary care, custody, and control of Ashley. Ashley was primarily cared for by the Weisenbergers until they placed Ashley with Darin and Beverly in February 1995.
¶3 In July 1995, Monge moved for relief from the judgment under N.D.R.Civ.P 60(b), or, alternatively, to amend the judgment to grant her custody of Ashley due to changed circumstances. Goters intervened, seeking custody of Ashley. 1 The parties stipulated the matter would be heard as an original custody dispute between Monge and Goters.
¶4 The trial court found there were exceptional circumstances requiring consideration of the best interest factors in N.D.C.C. § 14-09-06.2. 2 The trial court found factors a, b, c, f, g, and j favored neither Goters nor Monge; factors h, i, and l were inapplicable; and factors d and e favored Goters. In addition, the trial court made the following findings of fact:
¶5 The trial court made the following conclusions of law:
An amended judgment was entered and Monge appealed.
¶6 The district court had jurisdiction under N.D. Const. Art. VI, § 8, and N.D.C.C. §§ 27-05-06 and 14-05-22. We have jurisdiction under N.D. Const. Art. VI, § 6, and N.D.C.C. § 28-27-01. The appeal was timely under N.D.R.App.P. 4(a).
¶7 Parents generally have a right to the custody and control of their children superior to the right of any other person. Simons v. Gisvold, 519 N.W.2d 585, 587 (N.D.1994). That right is not absolute. Simons. Absent exceptional circumstances triggering a best-interest analysis, a natural parent is entitled to custody of his or her child. In re E.J.H., 546 N.W.2d 361, 364 (N.D.1996).
¶8 A trial court's custody determinations are treated as findings of fact, which we do not set aside unless clearly erroneous. Catlin v. Catlin, 494 N.W.2d 581, 591 (N.D.1992). A finding of fact is clearly erroneous if it is induced by an erroneous view of the law, there is no evidence to support it, or if, upon our review of the entire record, we are left with a definite and firm conviction a mistake has been made. Surerus v. Matuska, 548 N.W.2d 384, 387 (N.D.1996). A trial court's conclusions of law are fully reviewable. Simons at 587.
¶9 Monge contends the trial court erred in finding Goters are the psychological parents of Ashley. Monge argues: This court has said: "Those persons who provide a child's daily care and who, thereby, develop a close personal relationship with the child become the psychological parents to whom the child turns for love, guidance, and security." Patzer v. Glaser, 396 N.W.2d 740, 743 (N.D.1986). There was evidence Ashley is a happy, healthy child, who loves Goters, with whom she has a close bond, and who provide Ashley's daily care, discipline her, take her to church, comfort her if she wakes up and is upset at night, and treat Ashley as if she were their own daughter. Our review of the entire record has not left us with a definite and firm conviction a mistake has been made in finding a psychological parent relationship exists between Goters and Ashley. The trial court's finding is, therefore, not clearly erroneous.
¶10 The trial court concluded "the test is whether or not there are 'exceptional circumstances' which require that in the best interests of the child, the child be placed in the custody of the third party rather than the biological parent." That is not the correct test. The correct test in a case like this was stated in Simons at 587:
"When a psychological parent and a natural parent each seek a court ordered award of custody, the natural parent's paramount right to custody prevails unless the court finds it in the child's best interest to award custody to the psychological parent to prevent serious harm or detriment to the welfare of the child."
Thus, the trial court's custody decision was induced by an erroneous view of the law and is, therefore, clearly erroneous.
¶11 Goters contend the trial court's findings "demonstrate that the trial court found that it was in Ashley's best interests to prevent serious harm or detriment to her to place her with" Goters. There are no such explicit findings. Todd Goter contends "[t]he Trial Court implicitly found that there existed harm or detriment if Ashley were to be placed in the home of Monge and Steve Anderson." Because the trial court clearly applied an incorrect legal test for deciding custody, however, we are unable to conclude the trial court, nevertheless, made an implicit finding in accordance with the correct test.
¶12 The child custody ruling in the judgment is reversed and the matter is remanded for redetermination using the correct test for determining custody.
¶14 WILLIAM F. HODNY, D.J., sitting in place of MARING, J., disqualified.
¶16 In Hust v. Hust, 295 N.W.2d 316 (N.D.1980), we concluded that in a divorce action a trial court may award custody of a child to a person other than the parents only when exceptional circumstances exist which, in the best interests of the child, require placement with a person other than one of the parents. I agree the existence of a...
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