Hust v. Hust, 9742

• Decision Date: 17 July 1980
• Docket Number: No. 9742,9742
• Citation: 295 N.W.2d 316
• Parties: Margaret Ann HUST, Plaintiff and Appellant, v. Michael Allen HUST, Defendant and Appellee. Civ.
• Court: North Dakota Supreme Court

Page 316

295 N.W.2d 316

Margaret Ann HUST, Plaintiff and Appellant, v. Michael Allen HUST, Defendant and Appellee.

Civ. No. 9742.

Supreme Court of North Dakota.

July 17, 1980.

James A. Wright, of Hjellum, Weiss, Nerison, Jukkala & Wright, Jamestown, for plaintiff and appellant.

William A. Mackenzie, of Mackenzie & Jungroth, Jamestown, for defendant and appellee (on brief).

VANDE WALLE, Justice.

In its judgment entered December 17, 1979, the Stutsman County district court granted a divorce to Margaret Ann and Michael Allen Hust and awarded temporary custody for one year of their daughter, Jessica Lynn Hust, to Michael's parents, Norma and Harry Hust. Margaret has appealed from that part of the judgment awarding temporary custody of Jessica to her paternal grandparents. We reverse and remand with directions for a new hearing.

Margaret and Michael were married on June 16, 1978, and they separated during July of 1979. On October 4, 1979, Margaret filed a complaint in the Stutsman County district court seeking a divorce from Michael and custody of Jessica. Michael filed an answer and counterclaim seeking a divorce from Margaret and custody of Jessica.

A hearing was held on December 6, 1979. At the hearing counsel for Michael was allowed to amend his answer and counterclaim, without objection by Margaret's counsel, to request that custody of Jessica be placed jointly with Michael and his parents, Norma and Harry Hust. At the time of the hearing Margaret was 19 years old, Michael was 21 years old, and Jessica was approximately 11 months old.

Margaret testified that Michael had been "fooling around" and that she and Michael separated during July of 1979 when Margaret moved from the couple's home with Jessica because "he (Michael) wanted me out." Prior to the divorce proceedings, Margaret kept custody of Jessica except for short periods of time when Jessica would stay with Michael or his parents for visitation. Margaret also testified that at the time of the hearing she had been employed for one week at the Jamestown Holiday Inn as a waitress and that while she was working a licensed babysitter took care of Jessica.

The only evidence in the record regarding Jessica's mental or physical condition was the following testimony of Margaret:

"A. Yes. Norma and Harry enjoyed the child, and for quite a long time since we had the child all I hear about is how they want to see the child eat a turkey leg at Thanksgiving and I felt it would be

"Q. An 11-month-old child isn't going to do too much of that.

"A. Mine would. She has been walking since 7 months old; she has got 4 teeth; she is very smart she is about in the 2 or 3-year level. I have had her in for tests and she is quite advanced for her age."

There is no evidence in the record to indicate that Jessica had ever failed to receive adequate or proper care or that her well-being had been jeopardized.

Margaret has raised the following issues on appeal:

(1) Whether the court's custody decision is clearly erroneous because it is unsupported by the record and because the court failed to apply the "best interests of the child" test.

(2) Whether the court's findings of fact are clearly erroneous because they fail to state the factual basis upon which the court made its custody decision.

In a divorce proceeding the court must award custody of a minor child based upon a determination of "the best interests and welfare of the child." Secs. 14-05-22(1) and 14-09-06.1, N.D.C.C. Section 14-09-06.2, N.D.C.C., has codified those factors which the court must consider in making a custody determination in a divorce proceeding. Lapp v. Lapp, 293 N.W.2d 121 (N.D. 1980). The trial court's custody determination is a finding of fact which will not be set aside on appeal unless it is clearly erroneous. Rule 52(a), N.D.R.Civ.P. However, in making its custody determination "in the best interests of the child" the court must be cognizant of the public policy favoring the family relationship between parent and child as well as the parents' fundamental right to the custody and companionship of their children.

This court has recognized that parents have a paramount and constitutional right to the custody and companionship of their children superior to that of any other person. In Interest of M. M. C., 277 N.W.2d 281 (N.D. 1979). Although the right of a parent to the custody of his/her child is not absolute, the courts are reluctant to remove the child from the parents' custody unless it is necessary to prevent serious detriment to the welfare of the child. In Interest of M. M. C., supra. As Justice Sand so pointedly states in Bjerke v. D. T., 248 N.W.2d 808 (N.D. 1976):

".. . it is not reason enough to deprive parents of custody that their home is not the best or most modern that could be offered to the child, so long as the child does not suffer physical or moral harm, or lack of food or clothing. Poverty, lack of education or of culture alone are never justification enough for severing the ties that bind families together." 248 N.W.2d at 813.

Section 27-20-01, N.D.C.C., states that it is the public purpose of the Uniform Juvenile Court Act to provide for the care, protection, and moral, mental, and physical development of children ". . . in a family environment whenever possible, separating the child from his parents only when necessary for his welfare or in the interests of public safety; . . ." Thus the court cannot, under Section 27-20-30, N.D.C.C., remove a child from the parents' custody in the best interests of the child ¹ unless there is a grave reason to do so, i.e., the child has been found to be a deprived child. Bjerke v. D. T., 248 N.W.2d 808 (N.D. 1976).

Although the determinative standard for awarding custody in a divorce action is "the best interests of the child" the right of the parents to the custody of their children does not simply vanish upon the initiation of a divorce action by one or both parents. The relationship between the parents and their children continues to exist and so does the public policy of encouraging and fostering such parent-child relationships. We are of the view, therefore, that in a divorce proceeding, an award of custody to the grandparents rather than to one or both of the child's natural parents is clearly erroneous unless exceptional circumstances require that such a custody disposition be made "in the best interests of the child." To illustrate this standard it is helpful to review past cases in which this court has upheld a custody award of a minor child to the grandparents.

This court in Odegard v. Odegard, 259 N.W.2d 484 (N.D. 1977), upheld, in a divorce proceeding, a joint award of custody to the natural father and the paternal grandparents. The joint-custody award in Odegard is clearly distinguishable from the custody disposition made in the instant case wherein neither parent was given any degree of custody. There are other distinguishing factors. In Odegard there was evidence that both parents "often" spent evenings away from home and that their child "usually spent his evenings in the company of babysitters." There was also evidence that "the house often was a mess, the baby's room and bed in disorder," and that the babysitters "were allowed to drink beer and have guests as an incentive to babysit." 259 N.W.2d at 485. There was also evidence in Odegard, supra, that the child's mother voluntarily left physical custody of the child with the father and grandparents at various times prior to the divorce action while she resided in Fargo to search for a job.

In the instant case, Margaret retained physical custody, care, and control of Jessica until the court ordered that custody of Jessica be placed with her grandparents. There is no evidence that Jessica, while in the custody of her mother, did not receive proper care. There is some evidence, however, that on a couple of occasions Margaret smoked marijuana for the purpose of making Michael angry, but there is no evidence that on such occasions Jessica was left unattended or that her welfare was jeopardized.

This court, in the case of In Interest (Custody) of D. G., 246 N.W.2d 892 (N.D. 1976), reversed the trial court's custody award of a six-year-old boy (D. G.) to his father and remanded with instructions that custody of the boy be granted to his maternal grandparents. The case involved exceptional circumstances. D. G. had lived with his maternal grandparents for his entire life. His father left the community when D. G. was one year old and did not return to see him until D. G. was 41/2 years old. When D. G. was two years old his parents were divorced and custody was awarded to his mother who, along with D. G., resided with her parents. The maternal grandparents petitioned the court for termination of parental rights and adoption of the boy. The trial court determined that the child was a deprived child. The court also determined that in relation to D. G.'s mother, who had a history of severe mental problems and emotional disturbances, the deprivation was likely to continue, and the court terminated the mother's parental rights. However, the court, finding that the deprivation in relation to the father was not likely to continue, did not terminate the father's parental rights. Upon those determinations the trial court awarded custody of the boy to the father.

This court, in reversing the trial court's custody award, instructed the court to award custody of D. G. to his maternal grandparents and stated:

"Once the child has been in the custody of a party, that custody will be changed only upon a showing that such a change is necessary to protect and promote the child's welfare." (Emphasis in original.) 246 N.W.2d at 895.

This court concluded that D. G., who had lived with his maternal grandparents all his life, had established a parent-child relationship with his grandparents to whom he turned for help and reassurance and that "continuity in the child's life can be...