Gregg v. Gregg, 980077
| Decision Date | 19 November 1998 |
| Docket Number | No. 980077,980077 |
| Parties | David A. GREGG, Plaintiff, Appellant and Cross-Appellee, v. Terri L. GREGG, Defendant, Appellee and Cross-Appellant. Civil |
| Court | North Dakota Supreme Court |
Carol K. Larson, of Pringle & Herigstad, PC, Minot, for plaintiff, appellant and cross-appellee.
Robert S. Rau, of Bosard, McCutcheon & Rau, Ltd., Minot, for defendant, appellee and cross-appellant.
¶1 David Gregg appealed from a divorce judgment, challenging the trial court's decisions on custody, property division, spousal support, and calculation of interim child support. Terri Gregg cross-appealed, challenging the trial court's denial of her request for attorney fees. We affirm the trial court's custody award, property division, award of interim child support, and denial of Terri's request for attorney fees. We reverse the trial court's award of spousal support. Neither party is awarded attorney fees on appeal.
¶2 David and Terri were married during June 1988 in Texas. They moved to Michigan and while there had two children, Crystal, born May 31, 1990, and Stephanie, born September 30, 1991. David has an adult daughter, Tiffany, by a prior marriage.
¶3 David and Terri are both career employees of the United States Air Force. They moved to North Dakota in the Spring of 1992. While in North Dakota, Terri attended college to complete prerequisites for an Air Force sponsored physician assistant program. Terri was accepted into the program, and in May 1995 she moved to Texas to complete the two-year required course of instruction. David and Terri agreed the girls would remain in North Dakota with him while Terri attended this training. Terri maintained contact with the girls through weekly telephone conversations and by visitations with them every two or three months. Terri completed her physician assistant training during June 1997. She was then commissioned a second lieutenant and is currently stationed at the Grand Forks Air Force Base working at the Air Force hospital. David is a sergeant, currently stationed at the Minot Air Force Base.
¶4 Terri had an extramarital relationship while attending school outside North Dakota. The parties attempted to reconcile their marriage, but it irretrievably broke down, and David filed for a divorce in February 1997. Terri counterclaimed, also seeking a divorce. While the divorce was pending, the girls continued to reside with David and the court ordered Terri to pay interim child support of $412 per month.
¶5 After a hearing, the court awarded both parties a divorce on the grounds of irreconcilable differences. It awarded custody of Crystal and Stephanie to Terri, with liberal visitation for David, who was ordered to pay $723 monthly child support. The trial court divided the marital property and awarded Terri $200 monthly spousal support for 48 months. The court denied Terri's request for attorney fees. David appealed and Terri cross-appealed.
¶6 David asserts the trial court's custody decision is clearly erroneous. He complains the trial court failed to adequately consider the importance of maintaining stability for the girls, who have lived with him since Terri began the physician assistant program in May 1995. David also complains the trial court failed to give sufficient consideration to Terri's adultery, which, in David's view, demonstrates she is morally unfit to have custody of their daughters.
¶7 In Reimche v. Reimche, 1997 ND 138, p 12, 566 N.W.2d 790, we summarized our process of limited review of a trial court's custody award under N.D.R.Civ.P. 52(a):
In a divorce proceeding, the trial court must award custody of the minor children based upon a determination of the best interests and welfare of the children. The trial court is vested with substantial discretion in matters of custody and in the determination of what is in the best interests of the children. A trial court's custody determination is a finding of fact that will not be set aside on appeal unless it is clearly erroneous. A trial court's findings of fact are presumptively correct. The complaining party bears the burden of demonstrating on appeal that a finding of fact is clearly erroneous. In reviewing findings of fact, we must view the evidence in the light most favorable to the findings. A choice between two permissible views of the evidence is not clearly erroneous. Simply because we might view the evidence differently does not entitle us to reverse the trial court. A finding of fact is clearly erroneous only if the reviewing court on the entire evidence is left with a definite and firm conviction that a mistake has been made. (Citations omitted.)
¶8 In detailed findings, the trial court discussed the relevant factors under N.D.C.C. § 14-09-06.2, for deciding which parent should be awarded custody of the children. The court found both parents have love and affection for the children and the capacity to provide them guidance, education, food, clothing, and other necessaries. The court found Terri was the primary caregiver for the girls until she began the physician assistant training, at which time David became the primary caregiver. The court found David was controlling and regimented with Terri and the girls and that David was emotionally abusive toward Terri during the marriage, even after their separation.
¶9 After considering all of the relevant factors, the court summarized its rationale for awarding custody to Terri:
The Court finds that [Terri] will be much more open and far less controlling of [David] having visitation with the children than [David] was with [Terri]. The Court also finds that she will encourage far more visitation between [the] children, their father and their grandparents than will [David] if he has custody. The Court finds that placement with [Terri] will allow the girls the opportunity to grow within themselves and it is [Terri] who will better promote their best interests and welfare.
These findings are supported by the record evidence. We disagree the trial court gave insufficient consideration to continuity and stability in the girls' lives. The evidence shows the girls have a close bond with both parents, and that even though Terri was away for substantial periods during her training, she maintained a close and loving relationship with the girls by frequent visitations and even more frequent telephone conversations.
¶10 The trial court specifically found Terri's affair was not relevant to the custody issue, because the parties had reconciled the incident. The court found David condoned Terri's affair and treated her "with conjugal kindness" after learning of it. Condonation is an affirmative defense to oppose an action for divorce. N.D.C.C. § 14-05-10(3). Condonation has no legal significance to the issue of child custody. See Ratajczak v. Ratajczak, 1997 ND 122, p 23, 565 N.W.2d 491. The court more importantly, under the evidence in this case, determined the affair was not very relevant to the custody issue, because the children were not affected by it. See Foreng v. Foreng, 509 N.W.2d 38, 40 (N.D.1993) ().
¶11 In discussing its custody decision, the court found there was evidence of domestic violence by David toward Terri. David complains the trial court should have considered, but did not, the 1997 amendments under N.D.C.C. § 14-09-06.2(j), which create a rebuttable presumption against awarding custody to the perpetrator of domestic violence only when the court finds "there exists one incident of domestic violence which resulted in serious bodily injury or involved the use of a dangerous weapon or there exists a pattern of domestic violence within a reasonable time proximate to the proceeding...." See Dinius v. Dinius, 1997 ND 115, pp 17-18, 564 N.W.2d 300. Although the trial court found there was some evidence of domestic violence, it did not find the requisite degree of violence to raise the statutory presumption against David receiving custody of the children. Assuming the trial court erred in not considering the more restrictive domestic violence definition under the 1997 amendments, David was not harmed by the error because the court did not apply the domestic violence presumption against him.
¶12 We conclude the trial court appropriately considered all relevant factors in making its custody award. The court found both parents fit to have custody of the children, but the scales tipped in favor of Terri receiving custody because she is less controlling and would better allow the girls "to grow within themselves." Terri has also demonstrated a willingness to facilitate the girls' relationship with David if she is the custodial parent, but David has not demonstrated a similar willingness to foster the girls' relationship with Terri. Our review of the record evidence has not left us with a definite and firm conviction a mistake has been made. We conclude the custody determination is not clearly erroneous.
¶13 David complains the trial court's property division is inequitable. Under N.D.C.C. § 14-05-24 "[w]hen a divorce is granted, the court shall make such equitable distribution of the real and personal property of the parties as may seem just and proper." In reviewing a property division on appeal, we start with the view that marital property should be equally divided and, while the division need not be exactly equal to be equitable, the trial court must explain any substantial disparity. Christmann v. Christmann, 1997 ND 209, p 6, 570 N.W.2d 221. The trial court's determinations on valuation and division of property are treated as findings of fact and will be reversed on appeal only if they are clearly erroneous. Wilhelm v. Wilhelm, 1998 ND 140, p 11, 582 N.W.2d 6.
¶14 The trial court made an approximately equal division of the...
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