Johnson v. Schlotman

Decision Date01 July 1993
Docket NumberNos. 910236,920255,s. 910236
Citation502 N.W.2d 831
PartiesJon Waldemar JOHNSON, Plaintiff and Appellee, v. Dianne Helen SCHLOTMAN, f/k/a Dianne Helen Johnson, Defendant and Appellant. Civ.
CourtNorth Dakota Supreme Court

Thomas J. Aljets of Heinley & Aljets, Carrington, for plaintiff and appellee. Appearance by Jon W. Johnson.

William Kirschner of Kirschner Law Office, Fargo, for defendant and appellant. Appearances by Laurie Miller Kirschner, Ella Huwe, and Dianne Schlotman.

Paula L. Ettelbrick of Lambda Legal Defense and Educ. Fund, Inc., 666 Broadway, New York City, and Erica M. Ryland of Weil, Gotshal & Manges, New York City, for amicus curiae, Lambda Legal Defense and Educ. Fund, Inc.

VANDE WALLE, Chief Justice.

Dianne H. Schlotman appealed from an amended judgment which temporarily terminated her visitation rights with her two children and denied her motion for a change of custody, and from an order which denied her motion for a new trial. We affirm the judgment but remand for further proceedings, and affirm the order denying the motion for a new trial.

Dianne and Jon W. Johnson were married in 1974. A daughter, currently age 14, and a son, currently age 11, were born during the marriage. Dianne and Jon entered into a stipulated divorce settlement in 1986 which provided the parties would have joint legal custody of the two children and, for the most part, unspecified visitation. The children continued to live with Jon in Glenfield, North Dakota. Dianne eventually moved to Fargo.

After the divorce, Dianne moved in with Ella Huwe, her partner, and informed the children that she was a lesbian. Dianne's sexual orientation eventually became the center of continuing disputes between Dianne and Jon, with Jon alleging that it had an adverse effect upon the children's well-being, and Dianne alleging that Jon was turning the children against her due to his bias against homosexuals. Dianne, perceiving that Jon was interfering with her visitation rights, prepared a motion for modification of visitation in August 1990 which called for a more specific and precise visitation schedule. 1 Jon's reply asked the court to rescind all of Dianne's residential care and visitation of the children unless Dianne ceased her cohabitation with Ella, Dianne's partner, and ceased discussing, promoting, or displaying her sexual orientation to the children. After these motions were not acted upon, new, but essentially similar, motions for modification of custody and visitation were filed in early 1991.

In February 1991, an order appointing a guardian ad litem for the purpose of visitation was issued by the trial court. The order forbade the guardian ad litem to take the children to Dianne's residence if Ella continued to reside there, prohibited the children from having any contact with Ella, and prohibited both parties from discussing Dianne's sexual activities in the children's presence.

A hearing was held on March 7 and April 16, 17, 18, and 22, 1991. At the hearing, twenty-four individuals testified, including psychologists and counselors. An amended judgment was entered in July 1991 which temporarily discontinued Dianne's visitation and residential care of the children. The order also provided that the children were to seek the counseling of Dr. Douglas Knowlton, a psychologist, and that Jon and Dianne were to comply with any of Dr. Knowlton's reasonable requests pertaining to the children's treatment. Dr. Knowlton was to decide when visitation and contact with Dianne was to resume and what limitations were to be imposed. Dianne appealed this amended judgment.

After the appeal was perfected, Dianne filed a motion for a new trial with the trial court alleging as "newly discovered evidence" that Dr. Barrett, the one psychologist who testified for Jon, had been reprimanded by the North Dakota State Board of Psychologist Examiners for his work done in the case.

On November 27, 1991, we ordered "that the case be remanded for the limited purpose of considering the Motion for a New Trial and that the appeal [of the amended judgment] be held in abeyance pending final determination of that Motion."

On February 10, 1992, the trial court issued an order for temporary visitation which allowed Dianne unsupervised visitation of the two children at her home or any other suitable place at certain and specific times. The order provided that Dr. Knowlton continue as the children's psychologist and that he meet weekly with the children and the families involved, and that he do everything possible to continue to assist the families in resolving their problems.

On remand from this Court, the trial court summarily denied Dianne's motion for a new trial, and issued a separate order for temporary visitation on July 10, 1992 which, like the February 10, 1992 order, allowed unsupervised visitation and continued treatment by Dr. Knowlton.

Dianne appealed the denial of her motion for a new trial on August 24, 1992.

I.

A trial court's decision to modify custody is a finding of fact subject to the clearly erroneous standard of review. Blotske v. Leidholm, 487 N.W.2d 607 (N.D.1992). A finding of fact is clearly erroneous if it is induced by an erroneous view of the law, if there is no evidence to support it, or if, although there is some evidence to support it, the reviewing court, on the entire evidence, is left with a definite and firm conviction that a mistake has been made. Rule 52(a), NDRCivP; In re Estate of Dittus, 497 N.W.2d 415 (N.D.1993); Blotske, supra. In carefully reviewing the entire record, we are unable to deem the trial court's refusal to modify custody clearly erroneous.

The trial judge heard testimony that, prior to the divorce, Dianne informed Jon that she was a lesbian. The children, however, were not told. After the divorce, the children visited Dianne and generally enjoyed her company. In 1989, Dianne introduced the children to Ella, Dianne's lesbian partner, and also informed her daughter that she, Dianne, was a lesbian and had a special relationship with Ella. The daughter, naturally curious, asked many questions about Dianne's homosexuality but appeared to generally accept it. At a later date, her son was likewise informed of Dianne's homosexuality and her relationship with Ella.

At some point after the children were told of Dianne's sexual orientation, the children began having problems with depression and inability to sleep. Dianne submitted testimony that the children's problems stemmed from Jon's bigotry with regard to homosexuals which poisoned the children's minds against Dianne. Jon submitted testimony that the problems stemmed from school and societal discrimination against homosexuals, and that his attitude was not the root of the children's problems, although he personally considered homosexuality deviant behavior that should not be tolerated.

Dianne attempts to minimize this testimony by accentuating her testimony that Jon poisoned the children's minds against Dianne and her homosexuality. Although Dianne characterizes this case as solely one of discrimination based upon sexual orientation, it is not. Both Dianne and Jon presented the testimony of experts who extensively analyzed the obstacles children of a homosexual parent face and the propriety of custody stemming therefrom. But other telling evidence was also presented. The court did not find that both parents are equally suitable to assume a custodial role or that the evidence requires a change of custody to Diane if it were not for her sexual preference. There is ample additional testimony supporting the trial judge's finding that visitation and residential care remain with Jon.

Section 14-09-06.2, NDCC, sets forth the factors to be considered in determining the best interests and welfare of the children for purposes of child custody. The daughter, age 12 at the time of trial, testified to her very strong preference to not live with Dianne. The daughter explained that Dianne refused to listen and attend to her needs, that she was embarrassed to be around her mother, that she was afraid her mother and Ella would display their affection publicly, that she wanted to continue to live in Glenfield where her friends and school were, and that she had a strong relationship with Jon and his new wife. See NDCC Sec. 14-09-06.2(1)(i).

Testimony also revealed that the children have lived with Jon in Glenfield their entire lives, and have attended no other school than that in Glenfield. The stable and satisfactory environment with Jon was clearly shown, as was evidence of a permanent family unit with Jon and his new wife, Sherry. See NDCC Secs. 14-09-06.2(1)(d), 14-09-06.2(1)(e).

Evidence of the love, affection, and emotional ties between the children and Jon was introduced a number of times. The daughter expressed her great love for Jon, and testified that she considered Jon's new wife to be her mother and best friend. The children testified that they disliked Ella and wanted nothing to do with Dianne. See NDCC Secs. 14-09-06.2(1)(a), 14-09-06.2(1)(k). Some of this testimony obviously is rooted in Dianne's sexual orientation and Jon's announced disapproval of her lifestyle. But it cannot be summarily discounted.

When a trial court entertains a motion to change custody of children of divorced spouses, the judge must determine two issues: whether or not there has been a significant change in circumstances since the original divorce decree and custody award and, if so, whether or not those changed circumstances compel or require a change in custody to foster the best interests of the child. Barstad v. Barstad, 499 N.W.2d 584 (N.D.1993); Gould v. Miller, 488 N.W.2d 42 (N.D.1992); Orke v. Olson, 411 N.W.2d 97 (N.D.1987). As the party seeking the change, Dianne has the burden of showing both that a circumstance changed significantly and that this change so adversely affected the child that custody should be changed. Gould, supra; Lapp v. Lapp, 336 N.W.2d...

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