Heinen v. Heinen, 890287

• Citation: 452 N.W.2d 331
• Decision Date: 01 March 1990
• Docket Number: No. 890287,890287
• Parties: Leo D. HEINEN, Plaintiff and Appellee, v. Ilene M. HEINEN, Defendant and Appellant. Civ.
• Court: United States State Supreme Court of North Dakota

Page 331

452 N.W.2d 331

Leo D. HEINEN, Plaintiff and Appellee, v. Ilene M. HEINEN, Defendant and Appellant.

Civ. No. 890287.

Supreme Court of North Dakota.

March 1, 1990.

Winkjer, McKennett, Stenehjem, Murphy & Reierson, Williston, for defendant and appellant; argued by Kent A. Reierson.

Johnson Law Office, Watford City, for plaintiff and appellee; argued by Dennis E. Johnson.

ERICKSTAD, Chief Justice.

Ilene Heinen appealed from a district court judgment modifying an original custody decree by allowing Leo Heinen to have actual physical custody of the parties' two minor children, Heidi and Amber, for nine months out of the year during the school term. We affirm.

Ilene and Leo were divorced pursuant to a stipulation of property settlement, child support, and custody agreement dated August 19, 1986, which was incorporated into the judgment of divorce dated August 25, 1986. Two children were born of the marriage: Heidi Lee Heinen, born August 28, 1982, and Amber Sue Heinen, born February 24, 1984. One view of the stipulation and judgment was that Ilene and Leo were to have joint custody of the children with Leo having physical custody for nine months during the school year and Ilene having physical custody during the summer months, until May 15, 1989, at which time the custody arrangement was to be reversed with Ilene having physical custody of the children for nine months during the school year and Leo having physical custody of the children during the summer months. ¹ The stipulation and judgment, however, included this provision "The parties shall review the custody arrangement following May 15, 1989, and, if possible, agree as to where the children should be placed for the majority of the time, when taking the best interests of the children into full consideration. If either party does not agree that after May 15, 1989, that the Defendant [Ilene] should have the children during the nine months of the school year and the Plaintiff [Leo] have the children for the three months during the Summer, either party may petition the Court for a determination as to what would be in the best interests of the children in regard to custody, care and control and request the Court after hearing and fact finding to make determination as to where the children should be placed in their best interests."

On April 7, 1989, Leo petitioned the court to make a determination of the proper custody arrangement for the parties' minor children. A hearing was held on June 27, 1989. The district court issued its memorandum opinion dated June 30, 1989, wherein the court stated that the memorandum opinion could be treated as findings of fact, conclusions of law, and order for amending the 1986 judgment. On July 6, 1989, the amended judgment was entered and notice of entry of the amended judgment was served by mail. Ilene filed a notice of appeal from the amended judgment on August 28, 1989.

On appeal, Ilene contends that there was not a significant change of circumstances justifying modification of the original custody decree; and that the district court erred in applying factors regarding the best interests of the children in determining whether or not there had been a significant change of circumstances. Leo contends that a finding of a significant change of circumstances was not required in this case because the stipulation and order expressly provided for review, or because the original order was based upon a stipulation and not upon a judicial decision after a hearing wherein the best interests of the children were determined in permitting the change in physical custody after May 15, 1989.

When a trial court is making an original award of custody between parents in a divorce proceeding, it must determine the single issue of what is in the child's best interest. Orke v. Olson, 411 N.W.2d 97, 99 (N.D.1987). However, ordinarily when the trial court considers a request to modify an original custody award, it must determine two issues: (1) whether or not there has been a significant change of circumstances since the original divorce decree and custody award; and, if so, (2) whether or not the changed circumstances are such that the best interests of the child would be served by a custody modification. Anderson v. Anderson, 448 N.W.2d 181, 182 (N.D.1989); Miller v. Miller, 305 N.W.2d 666, 671 (N.D.1981). The burden of showing a significant change of circumstances which requires a change of custody is on the party seeking modification of the custody award. Pitsenbarger v. Pitsenbarger, 382 N.W.2d 662, 664 (N.D.1986).

Leo argues that the specific language of the stipulation in this case allows for a determination based solely on the best interests of the children and does not require a showing of significant change of circumstances. The specific language of the stipulation in this case is unique in that it did say that "[a]fter May 15, 1989, the custody arrangement to be reversed with Plaintiff [Leo] having custody of the children for three months during the Summer and Defendant [Ilene] having custody of the children for nine months during the Winter," and yet it states that "either party may petition the Court for a determination as to what would be in the best interests of the children in regard to custody, care and control" if either party disagrees with the custody arrangement after May 15, 1989.

Because the parties would have had the right to seek a change of custody when a significant change of circumstances had occurred without such a provision in the judgment, we assume the provision has meaning other than that. The most logical conclusion to be drawn from the stipulation is that the custody determination was not final and that if the parties could not agree as to the custodial arrangements after May 15, 1989, either party could ask the court to determine custody based upon what was in the best interests of the children at that time. Such a construction of the judgment leads us to a result quite different from our earlier cases where no such peculiar stipulation or provision in the judgment existed.

In so deciding, we are not unmindful that we recognized the change of circumstances concept in a custody modification as early as 1949. See Sjol v. Sjol, 76 N.D. 336, 35 N.W.2d 797 (1949). While a custody determination is always modifiable, the requirement of a showing of a significant change of circumstances provides a certain amount of permanency and stability, which is desirable. For purposes of finality, a prior decree should not be modified without a showing of a significant need for doing so. Wright v. Wright, 431 N.W.2d 301, 303 (N.D.1988); Bergstrom v. Bergstrom, 296 N.W.2d 490, 493 (N.D.1980).

In concluding as we have in this case, we have not abandoned our support for the above rationale nor have we done so on the reasoning asserted by Leo to the effect that a finding of a substantial change of circumstances is not required because the original order was based upon a stipulation and not upon a judicial decision wherein the best interests of the children were considered in permitting the stipulated custody arrangement. Leo refers us to South Dakota and North Carolina case law for this latter proposition. See Williams v. Williams, 425 N.W.2d 390 (S.D.1988) (when divorce decree is based on agreement of the parties, issue of custody may be considered in subsequent custody modification hearing without substantial change of circumstances constraints); Hansen v. Hansen, 327 N.W.2d 47 (S.D.1982) (when original custody decree is based on agreement of the parties, party seeking modification is not required to show a substantial change of circumstances); Newsome v. Newsome, 42 N.C.App. 416, 256 S.E.2d 849 (1979) (reason behind change of circumstances requirement before modification of custody decree is to prevent re-litigation of conduct and circumstances that antedate prior custody order).

Not long ago, this Court indicated, however, that the significant change of circumstances finding is required even when the original custody decree is based on a stipulation between the parties. See Anderson v. Anderson, supra, 448 N.W.2d 181. In Anderson, Lila Anderson appealed an amended judgment changing custody of her minor daughter to the child's father, John Anderson. The original custody decree was based upon a stipulated agreement between John and Lila. On appeal, Lila argued that the trial court had not addressed the issue of whether or not there had been a significant change of circumstances. In reversing the change of custody, we said:

"Having reviewed the entire record in this case, we agree with Lila's counsel that the trial court failed to address the issue of whether there has been a significant change of circumstances since the original custody decree was entered. If the trial court was cognizant that a significant change of circumstances must be found before the court can modify an original custody decree, it failed to overtly acknowledge that issue. To the contrary, the trial court's oral statements from the bench, as well as its written findings, indicate that it focused solely upon a determination of whether it would be in Tara's best interest to reside with her father or mother, without first considering whether there had been a significant change of circumstances since the original decree to warrant a change of custody. The parties are entitled to a determination by the trial court which is based on an appropriate application of the law. See Delorey v. Delorey, 357 N.W.2d 488 (N.D.1984); Hultberg v. Hultberg, 259 N.W.2d 41 (N.D.1977). We conclude, therefore, that the trial court committed reversible error by failing to address the 'significant change of circumstances' issue."

Anderson, 448 N.W.2d at 182-83.

This case is distinguishable from Anderson, however, on the basis of the unique language of the stipulation in this case. Because of its incorporation in the judgment, we conclude that the initial decree...