Hanson v. Hanson

• Decision Date: 16 April 1987
• Docket Number: No. 11235,11235
• Parties: Marilyn Verjohn HANSON, Plaintiff and Appellee, v. James L. HANSON, Defendant and Appellant. Civ.
• Court: North Dakota Supreme Court

Page 460

404 N.W.2d 460

55 USLW 2667

Marilyn Verjohn HANSON, Plaintiff and Appellee, v. James L. HANSON, Defendant and Appellant.

Civ. No. 11235.

Supreme Court of North Dakota.

April 16, 1987.

Judith A. Atkinson, Bismarck, for plaintiff and appellee.

Rauleigh D. Robinson, Bismarck, for defendant and appellant.

GIERKE, Justice.

James L. Hanson appeals from a district court judgment which granted a divorce to Marilyn Verjohn Hanson. James challenges the trial court's distribution of marital property and debt, awards of spousal support and child support, and placement of restrictions on his visitation rights. We affirm the property distribution and awards of spousal and child support, but reverse the visitation restrictions.

James and Marilyn were married on January 2, 1964. The three sons born of the marriage were 21, 17, and 11 years of age on the date of trial. Marilyn had her diploma as a registered nurse when the parties married and, during the early years of the marriage, she provided the primary financial support for the family while James earned college degrees in pharmacy and bacteriology. James became licensed as a pharmacist in 1970.

During the mid-1970s, the parties moved to Elgin, where James was employed as administrator of the hospital. Marilyn obtained employment in Elgin as a teacher for the Southwest Vocational Mobile Program. James lost his job at the hospital in 1981. After being unemployed for six months, James moved to Center and opened a pharmacy. Marilyn remained in Elgin with the children, and James would return on weekends. James and Marilyn were members of the Roman Catholic Church while in Elgin and the children were raised as Catholics. After opening the pharmacy in Center, James became a member of the Pentecostal Apostolic Church.

James testified that while he worked in Center and the family remained in Elgin, he paid $1,250 per month in support to cover the house payment and other bills. However, in February 1985, James stopped making the payments. According to James, Marilyn told him she did not want him around anymore, "[a]nd upon being rejected, I just lost motivation in regards to supporting." Marilyn was unable to continue making the house payments, so the family moved and rented a home. Marilyn later withdrew $7,000 from her teacher's retirement fund to pay the family bills. Marilyn subsequently commenced this divorce action.

During the divorce trial in January 1986, James testified that his present earnings in Center amounted to $700 per month. Marilyn testified that she is presently employed as a care supervisor at the hospital in Elgin and earns $487 every two weeks. Her monthly expenses are approximately $1,200.

The district court essentially awarded each party the personal property in their possession. Marilyn's award totaled $9,760 and James' award totaled $9,084. Marilyn was required to assume $1,277.44 of the couple's debt, leaving her a total of $8,482.56 for a property settlement. James was required to assume $11,451.92 of the debt, leaving him a negative $2,367.92 for a property settlement. James was also awarded the assets and liabilities of his business, but the court found that the liabilities outweighed the assets. James was also ordered to pay spousal support in the sum of $10,000 "either at the time [Marilyn] enrolls in the college of her choice or three years after the Entry of Judgment in this case, whichever comes first in time." The court granted custody of the two minor children to Marilyn and ordered James to pay $300 per month child support "until the youngest child graduates from high school." The court granted James visitation rights, but ordered that "[d]uring any of the visitation by [James], [James] is prohibited from taking the children to any church or church services other than the church to which the children belong."

James' major assertion on appeal is that the trial court erred in prohibiting him during visitation periods from taking the children to his church or church services.

Pursuant to Sec. 14-05-22(1), N.D.C.C., the court in a divorce case "may give such direction for the custody, care, and education of the children of the marriage as may seem necessary or proper, ..." The statute further requires the court, after making an award of custody and upon request of the noncustodial parent, to "grant such rights of visitation as will enable the child and the noncustodial parent to maintain a parent-child relationship that will be beneficial to the child, unless the court finds, after a hearing, that visitation is likely to endanger the child's physical or emotional health." Sec. 14-05-22(2), N.D.C.C. A trial court's determination on visitation will not be overturned on appeal unless it is clearly erroneous. Persons v. Persons, 396 N.W.2d 744, 745 (N.D.1986).

Few areas of dispute in child custody and visitation cases are more fraught with difficulty than those involving differences in the religious beliefs of the divorced parents. Although we have not spoken directly on the issue, ¹ most courts that have considered the question have refused to restrain a noncustodial parent during visitation periods from exposing the minor child to his or her religious beliefs and practices, absent a clear, affirmative showing that these religious activities will be harmful to the child. See, e.g., In re Marriage of Mentry, 142 Cal.App.3d 260, 190 Cal.Rptr. 843 (1983); In re Marriage of Murga, 103 Cal.App.3d 498, 163 Cal.Rptr. 79 (1980); Compton v. Gilmore, 98 Idaho 190, 560 P.2d 861 (1977); Felton v. Felton, 383 Mass. 232, 418 N.E.2d 606 (1981); In re Marriage of Heriford, 586 S.W.2d 769 (Mo.Ct.App.1979); Munoz v. Munoz, 79 Wash.2d 810, 489 P.2d 1133 (1971); Robertson v. Robertson, 19 Wash.App. 425, 575 P.2d 1092 (1978); Annot., 22 A.L.R.4th 971, Sec. 14 (1983); Note, The Religious Upbringing of Children After Divorce, 56 Notre Dame Law. 160 (1980). It further appears that, absent a showing of emotional or physical harm to the children, courts will not impose upon the noncustodial parent the affirmative obligation of policing during visitation periods the religious instructions of the custodial parent. See Brown v. Szakal, 212 N.J.Super. 136, 514 A.2d 81 (1986); cf. Fisher v. Fisher, 118 Mich.App. 227, 324 N.W.2d 582 (1982) [court refused to order custodial parent to continue Christian training to which noncustodial parent wished the children exposed]. The typical rationale relied upon by the courts for this rule is aptly summarized in Munoz, supra, 79 Wash.2d at 812-814, 489 P.2d at 1135:

"The courts are reluctant ... to interfere with the religious faith and training of children where the conflicting religious preferences of the parents are in no way detrimental to the welfare of the child. The obvious reason for such a policy of impartiality regarding religious beliefs is that, constitutionally, American courts are forbidden from interfering with religious freedoms or to take steps preferring one religion over another. (Citations omitted.)

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"Thus, the rule appears to be well established that the courts should maintain an attitude of strict impartiality between religions and should not disqualify any applicant for custody or restrain any person having custody or visitation rights from taking the children to a particular church, except where there is a clear and affirmative showing that the conflicting religious beliefs affect the general welfare of the child.

"We recognize the general rule that in child custody cases the trial court, in furtherance of the best interests and welfare of the child, is vested with a wide latitude of discretion and in the absence of a manifest abuse of discretion in awarding the custody and control of minor children, its judgment will not be disturbed on appeal.... However, where the trial court does not follow the generally established rule of noninterference in religious matters in child custody cases without an affirmative showing of compelling reasons for such action, we are of the opinion that this is tantamount to a manifest abuse of discretion."

To justify the placement of religious restrictions on visitation rights, the physical or emotional harm to the child resulting from the conflicting religious instructions or practices cannot be simply assumed or surmised, but must be demonstrated in detail. For example, the court in Felton, supra, reversed a judgment modifying the visitation provisions of a divorce decree to forbid visitation unless the father, a Jehovah's Witness, refrained from instructing the children in his religion. The mother, a member of the Congregational Church, complained that the father was indoctrinating the children in his faith and that this confused and disoriented the children and alienated them from her. The court concluded that the custodial parent's general testimony that the child was "upset" or "confused" was insufficient to support the trial court's findings of a " 'deleterious effect' on the children and an 'undermining' of the custodial relationship by reason of the father's religious instruction or practice." Felton, supra, 383 Mass. at 240, 418 N.E.2d at 610.

Similarly, in Robertson, supra, the court reversed an order prohibiting a noncustodial father from taking his two sons to any meetings of the Jehovah's Witnesses and from teaching or expressing to them certain religious doctrines during visitation periods. The court concluded that the mother's affidavit stating that the teachings of the Jehovah's Witnesses " 'confuse and alarm [the] children' and 'have a detrimental and confusing impact upon [their] welfare' and that the specific precept of nonobservance of holidays 'causes a great deal of trauma for the children at school because they feel guilty ...' " was insufficient to support a showing that the conflicting religious beliefs affected the general welfare of the children. Robertson, supra, 19 Wash.App. at 427, 575 P.2d at 1093. Likewise, in ...