Gould v. Miller, 910386

• Decision Date: 28 July 1992
• Docket Number: No. 910386,910386
• Citation: 488 N.W.2d 42
• Parties: Kathryn S. GOULD, f/k/a Kathryn S. Johnson, f/k/a Kathryn S. Miller, Plaintiff and Appellee, v. Randall P. MILLER, Defendant and Appellant. Civ.
• Court: North Dakota Supreme Court

Page 42

488 N.W.2d 42

Kathryn S. GOULD, f/k/a Kathryn S. Johnson, f/k/a Kathryn S Miller, Plaintiff and Appellee, v. Randall P. MILLER, Defendant and Appellant.

Civ. No. 910386.

Supreme Court of North Dakota.

July 28, 1992.

O'Neel Law Office, Fargo, for plaintiff and appellee; argued by Michael C. O'Neel.

Garaas Law Firm, Fargo, for defendant and appellant; argued by Jonathan T. Garaas.

MESCHKE, Justice.

Randall Miller appeals the denial of his motion to change primary custody of three daughters from Kathryn, their mother, to himself. We affirm.

Kathryn and Randall Miller were divorced in March 1990 at Fargo, North Dakota. The decree awarded primary physical custody of their three daughters to Kathryn with extensive visitation to Randall. Randall was ordered to pay Kathryn $1,200 each month during September through May and $300 each month during June, July and August for child support. Randall remained in the family home, while Kathryn and her daughters moved nearby to another home in south Fargo.

Without Randall's consent or the court's approval, Kathryn moved with the children in May 1991 to the residence of Thomas Gould in Moorhead, Minnesota. In June, Kathryn married Gould.

Describing the change of residence as "illegal," Randall moved to change primary custody of the girls to himself. Randall claimed that the children had a "strong desire" to live with him because Kathryn was no longer attentive to their needs. Randall also claimed that he had located a "loaded 9 mm pistol" and "a green, vegetable-like substance," later tested as marijuana seeds, in Kathryn's home. Randall urged that these items in Kathryn's home demonstrated her "irresponsible behavior." Randall's motion was also supported by an affidavit of Becky, the eldest daughter, age 12, expressing her preference to live in Fargo with her father.

Kathryn counter-moved that Randall be held in contempt for "refus[ing] to deliver property that was assigned to" her in the divorce decree. Kathryn also moved that the decree be amended to restrict the hours that Randall could call Kathryn or the children, to enjoin the parties from "bad mouthing" each other or "involv[ing] the minor children in any of the disputes between them," and to change scheduled visitation. Kathryn submitted psychological evaluations of herself, her new husband, and the three children.

The motions were heard together at a trial begun in August, continued, and completed in October 1991. At the first hearing, the trial court granted Randall's request to enroll the children in Fargo schools pending the outcome. After the court denied a change in custody, the court required the two younger children, Pamela and Stacey, to transfer to a Moorhead school at the end of the grading period. Becky was allowed to temporarily stay in her Fargo school, but was required to transfer at the end of the school year to a Moorhead school. The order required Kathryn and Randall to coordinate transportation for attending the Fargo schools, and to plan a "detailed visitation schedule" for an uninterrupted visitation time with Randall during the summer. The court suspended Randall's child support obligation during summer visitation.

Randall appeals. Randall primarily argues that the trial court did not understand the legal effect of several significant changes in circumstance since the divorce and, therefore, improperly denied a change of custody.

For an original placement of the custody of a child, when parents divorce, the trial court needs to determine only the best interests and welfare of the child. NDCC 14-09-06.1. For a motion to modify an original custodial placement, the trial court needs to make a two-step analysis. First, the court must determine whether there has been any significant change in circumstance since the original placement. Orke v. Olson, 411 N.W.2d 97, 99 (N.D.1987). If the court finds a significant change in circumstance, it must then consider whether the change compels a custodial change for the best interests of the child. Id. The parent seeking to modify custody has the burden of showing both that a circumstance changed significantly and that this change so adversely affected the child that custody should be changed. Lapp v. Lapp, 336 N.W.2d 350 (N.D.1983). As the movant, Randall had this burden.

However, Randall argues on appeal that the burden of persuasion was on Kathryn to justify moving the children out of state, even though the move was merely to another neighborhood in the same urban community of Fargo and Moorhead, "twin cities" across the river from each other. See Olson v. Olson, 361 N.W.2d 249, 252 (N.D.1985). Nevertheless, the trial court ruled that the move to a nearby city did not adversely affect the children, nor significantly affect their visitation with Randall.

Randall argues that the trial court misunderstood the two-step analysis for considering a change of custody, and that the court thereby failed to recognize the significance of the changes that have occurred since the original custody award. A trial court's determination about changing child custody is a finding of fact, not to be set aside on appeal unless clearly erroneous. Miller v. Miller, 305 N.W.2d 666, 671 (N.D.1981). While we prefer findings of fact that disclose the reasons for a trial decision, an express finding on every factor is not necessary. Pfliger v. Pfliger, 461 N.W.2d 432 (N.D.1990). When the trial court does not fully explain, we will not upset its decision if valid reasons are fairly discernible either by deduction or inference. Ness v. Ness, 467 N.W.2d 716, 718 (N.D.1991). Here, as in Ness, the trial court's findings and conclusions "are hardly a model of clarity or completeness," but the court's oral comments convey an adequate comprehension of its reasoning.

Early in the trial, the court expressed confusion about the necessary two-step analysis, and seemed to say that "[a]...