Gross v. Gross, 9671

• Decision Date: 12 December 1979
• Docket Number: No. 9671,9671
• Citation: 287 N.W.2d 457
• Parties: David J. GROSS, Plaintiff and Appellee, v. Linda Mae GROSS, Defendant and Appellant. Civ.
• Court: North Dakota Supreme Court

Page 457

287 N.W.2d 457

David J. GROSS, Plaintiff and Appellee, v. Linda Mae GROSS, Defendant and Appellant.

Civ. No. 9671.

Supreme Court of North Dakota.

Dec. 12, 1979.

Rausch & Rausch, Bismarck, for plaintiff and appellee; argued by James P. Rausch, Bismarck.

C. J. Schauss, Mandan, for defendant and appellant.

SAND, Justice.

Linda Mae Gross appealed from that portion of a judgment of divorce which awarded custody of a minor child to the appellee, David Gross, and denied custody to the appellant, Linda Mae Gross. We affirm.

David and Linda Gross were married on 9 July 1976. At that time, David was engaged in the occupation of farming on his father's farm near Shields, North Dakota. David owned some cattle and equipment and worked in a sort of partnership relation with his father.

On 22 June 1977, a son, Shane, was born to the marriage of David and Linda Gross. Shane lived with his parents in a mobile home situated on the farm near Shields. Also living with them were Linda's two other children from a previous relationship, aged 4 and 6 years.

Linda did not enjoy living on the farm, and in the winter of 1977 to 1978 the family left the farm and moved to Mandan, North Dakota. David secured a job with a trucking firm in Mandan, but in the spring of 1978 he and Linda returned to the farm with the children.

In late October or early November 1978, David was called back to Mandan for work. From that time until 15 April 1979, the Gross family resided at the home of Linda's parents in Mandan. There were ten people living in Linda's parents' home at that time.

David and Linda separated on 15 April 1979, and he returned to the farm to reside. The marriage was later dissolved by divorce.

While the Gross family was living together on the farm, Linda normally took care of Shane. She kept the mobile home clean, cooked for David and the children, and saw that Shane was clean and well clothed. During the summer months David worked on the farm from daylight to dark nearly every day, including Sundays.

While Linda and her children were living with her parents in Mandan, she worked three nights each week from five o'clock until midnight. At these times, and when Linda went shopping or uptown, either her mother or sister cared for Shane.

The mobile home situated on the farm near Shields was given to Linda in the divorce property settlement. The parties agreed at trial that if the mobile home was brought to Mandan, Linda and her children could reside in it and thereby eliminate the crowded conditions then in existence at the home of Linda's parents. If Linda was given custody of Shane, he and Linda's two other children would live with their mother in the mobile home in Mandan.

Testimony at trial indicated that if David obtained custody of the child, Shane would live with his father at the home of his paternal grandparents, a modern three-bedroom home located 11 miles southwest of Shields. David's parents would then assist him in caring for the child. Shane is now almost two and one-half years old and enjoys living in the farm environment. He likes and gets along well with both of his parents.

On 20 July 1979 the trial court awarded custody of Shane to his father, David Gross. The only finding of fact addressing custody of the minor child stated:

"V.

"That it would be in the best interest of the child, Shane Gross, that his custody be awarded to the plaintiff, David Gross."

The court also rendered an oral finding in this case from the bench following the conclusion of the trial. The court stated:

"Regarding custody and visitation, the court finds that it is in the best interest of the child that the custody be awarded to the plaintiff (David Gross). The defendant (Linda Mae Gross) shall have visitation at reasonable times on reasonable notice, including the right to take the child with her to Mandan one weekend each calendar month from six o'clock on Friday evening until six o'clock on Sunday evening.

"I realize you can argue what's in the best interest of the child. It's my feeling she has two children to take care of, she is of limited earning capacity. The child will get just as much attention with the plaintiff (David Gross) as he would with the defendant (Linda Mae Gross)."

On 20 July 1979, the trial court awarded David Gross a divorce from Linda, approved a property settlement, and awarded custody of the minor child, Shane to David. Linda appealed from that portion of the judgment which awarded custody of Shane to his father.

The only issue in this appeal is whether or not the decision of the trial court awarding custody of the minor child of the parties to David was clearly erroneous in light of the evidence presented at the trial of the case.

In North Dakota a review of the trial court's findings of fact in a divorce action, including a custody determination, is limited to a resolution of whether or not such findings are clearly erroneous within the latitude of Rule 52(a), North Dakota Rules of Civil Procedure. DeForest v. DeForest, 228 N.W.2d 919 (N.D.1975); Matson v. Matson, 226 N.W.2d 659 (N.D.1975).

The pertinent portion of Rule 52(a), NDRCivP, provides:

"In all actions tried upon the facts without a jury or with an advisory jury, The court shall find the facts specially and state separately its conclusions of law thereon and direct the entry of appropriate judgment; . . . Findings of fact shall not be set aside unless clearly erroneous, and due regard shall be given to the opportunity of the trial court to judge of the credibility of the witnesses. . . ." (Emphasis added.)

Applying this rule to the case at hand, the finding of the trial court with regard to Shane's best interest will be abandoned only if it is clearly erroneous based upon all the evidence presented to the trial court. The custody award of Shane to David may also be set aside if we are left with a definite and firm conviction that a mistake was made, but not merely because we may have reached a different result had we tried the case. Schmidt v. Plains Electric, Inc., 281 N.W.2d 794 (N.D.1979); In re Estate of Elmer, 210 N.W.2d 815 (N.D.1973).

Linda asserted four theories of clear error by the trial court. First, Linda argued the trial court clearly erred in awarding custody to David because the record failed to show the factual basis for the finding.

We realize that before we can make a determination of whether or not the findings of fact are "clearly erroneous," we must understand the actual basis for the decision of the trial court. Therefore, a finding of fact which failed to show the basis of the trial court's conclusion is clearly erroneous. DeForest v. DeForest, supra.

In DeForest, this court held that the findings of fact of the trial court were inadequate with regard to the question of the best interest of the child. In that case the custody award was absolutely void of any reference to the basis of the trial court's decision. We therefore found it impossible to obtain a correct understanding of the factual issues and could not determine whether or not the custody award was based upon the best interests of the child. 228 N.W.2d at 924.

As noted above, the trial court's finding of fact in this case stated in part "that it would be in the best interest of the child, Shane Gross, that his custody be awarded to the plaintiff, David Gross." Linda urged, on the authority of DeForest, that this statement was not in sufficient detail to satisfy the Rule 52(a) requirement that the trial court "find the facts Specially." (Emphasis added.) She argued that the trial court should have set forth in the findings of fact all of the relevant evidence presented at the trial upon which it based its decision.

This court has observed many times in the past that the primary purpose behind the Rule 52(a) "special finding" requirement was to assure a careful consideration of the evidence by the trial court and to afford the appellate court a clear understanding of the basis of a lower court's decision. DeForest v. DeForest, supra; Ellendale Farmers Union...