Jacobson v. Jacobson, 10011
| Decision Date | 30 December 1981 |
| Docket Number | No. 10011,10011 |
| Citation | 314 N.W.2d 78 |
| Parties | Sandra JACOBSON, Plaintiff and Appellee, v. Duane JACOBSON, Defendant and Appellant. Civ. |
| Court | North Dakota Supreme Court |
Carma Christensen, Bismarck, for plaintiff and appellee.
Daniel J. Chapman, of Chapman & Chapman, Bismarck, for defendant and appellant.
Duane Jacobson appealed from a judgment of divorce entered by the district court of Burleigh County. We affirm in part and reverse in part and remand with directions to enter an order awarding custody of the minor children to Duane.
Sandra and Duane were married in 1966. Two children were born of the union, i.e., T. K., born January 11, 1972, and J. A., born October 12, 1977. Sandra commenced divorce proceedings on or about April 1, 1980, and the couple lived apart from that time. Temporary custody was placed with Sandra, age 33 at time of trial, under an interim order of the trial court. Duane filed an answer containing a general denial and specifically requested custody of the children by way of an amended answer. After trial the trial court issued its findings of fact, conclusions of law, and order for judgment. The trial court determined that irreconcilable differences existed and granted Sandra an absolute decree of divorce from Duane. The trial court further determined that the best interests of the children required that Sandra be given custody. The trial court made additional determinations which are not at issue here. After judgment was entered, Duane appealed. The only issue on appeal is that the trial court erred in awarding custody of the children to Sandra rather than to Duane. Within that issue the parties present several factors in an attempt to sway this court to their respective positions. However, it is clear that the burning issue in this appeal is Sandra's sexual preference. She freely admits to a homosexual relationship with a person named Sue who was 18 years of age at the time of trial. After determining the facts the trial judge indicated there were two areas of concern:
The trial judge peremptorily disposed of the first issue, finding that in this particular factual situation "the first question (is) not of great importance as the children will be required to deal with the problem regardless of which parent has custody; ..."
With respect to the second concern the trial judge determined that the factor of "role model" is one of natural concern and a proper subject of inquiry. Noting that Sandra's counsel quoted from various sources in her brief the trial judge stated he was disregarding the information as the sources were not available for cross-examination. The trial judge indicated he did extensive research into available case law and determined that the cases appeared to divide themselves into two categories, i.e.,
The trial judge then found:
A review of the district court's memorandum opinion reflects that the trial judge did, indeed, review the several cases which have dealt with this matter. Counsel for both Sandra and Duane, in their briefs on appeal, have also cited for our consideration many cases which are concerned with this issue.
Section 14-09-06.2, N.D.C.C., provides that the best interests and welfare of the child should be considered by the trial court in determining which parent in a divorce proceeding should have custody of the children. Evaluation of all factors affecting the best interests and welfare of the child is to be made, and the statute contains a list of those factors to be considered, when applicable. 1 We have stated on many occasions that in reviewing the trial court's determination of child custody in a divorce action, we treat these matters as findings of fact which, on appeal, are subject to the standard of review prescribed by Rule 52(a), N.D.R.Civ.P., i.e., that findings of fact are not to be set aside by this court unless we find them to be clearly erroneous. See, e.g., Miller v. Miller, 305 N.W.2d 666 (N.D.1981). We do not set aside a custody award unless we are left with a definite and firm conviction that a mistake has been made. Gross v. Gross, 287 N.W.2d 457 (N.D.1979). In this instance we are convinced that such a mistake has been made.
The portion of the trial judge's decision quoted above determines that both parents are "fit, willing and able to assume the custodial role." We need not determine whether one or the other parent is fit to have custody of the children; we need only determine that the children's best interests would be served by placing custody in one parent rather than the other parent. Gross v. Gross, supra. 2
It is not inconceivable that one day our society will accept homosexuality as "normal." Certainly it is more accepted today than it was only a few years ago. We are not prepared to conclude, however, that it is not a significant factor to be considered in determining custody of children, at least in the context of the facts of this particular case. Because the trial court has determined that both parents are "fit, willing and able" to assume custody of the children we believe the homosexuality of Sandra is the overriding factor. Sandra admitted to a sexual relationship with Sue prior to the termination of the marriage. Although that relationship was adulterous as defined by Section 12.1-20-09, N.D.C.C., that fact alone does not influence us. Rather, it is the conceded fact that after the divorce Sandra and Sue would establish a relationship in which they would be living together which gives us concern. In paragraph 9 of its findings the trial court stated:
"The Plaintiff (Sandra) has admitted a relationship with an adult woman (who) is likewise a strong, intelligent person; they have been discreet about their relationship; it is not outwardly apparent; thus far the children do not appear to be aware of it; the women intend to continue this relationship permanently and live together in the future; the relationship is a positive one; several people are aware of the relationship and it is clear that at some point the children will become aware of it."
Our statutes do not prohibit sexual relations between adult persons who are not married to other persons. Although Section 12.1-20-10, N.D.C.C., makes it a crime for a person to live openly and notoriously with a person of the opposite sex as a married couple without being married to the other person, the statutes contain no such provision with regard to persons of the same sex. The reason is obvious-neither North Dakota nor any other State in this nation, insofar as we can determine, recognizes a legal sexual relationship between two persons of the same sex. 3 Thus, despite the fact that the trial court determined the relationship between Sandra and Sue to be a "positive one," it is a relationship which, under the existing state of the law, never can be a legal relationship. Whether or not it will remain a stable relationship is yet to...
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