Jordana v. Corley

• Decision Date: 27 June 1974
• Docket Number: No. 8995,8995
• Court: North Dakota Supreme Court
• Parties: Ann C. JORDANA, Petitioner-Appellant, v. Edwin B. CORLEY, Respondent-Appellee. Civ.

Page 515

220 N.W.2d 515

Ann C. JORDANA, Petitioner-Appellant, v. Edwin B. CORLEY, Respondent-Appellee.

Civ. No. 8995.

Supreme Court of North Dakota.

June 27, 1974.

Syllabus by the Court

1. A finding on a motion for change of custody that the best interests of the children of the parties to a divorce action would be served by awarding custody of the children to one party as opposed to the other is appropriately dealt with on appeal as a finding of fact, and a review of that finding is limited to a determination of whether or not it is clearly erroneous under Rule 52(a), N.D.R.Civ.P.

2. The trial judge has the responsibility of determining the credibility of the witnesses and weighing the evidence in cases tried to the court. The fact that he performed this function and considered evidence introduced without objection as one of several factors in arriving at his decision does not make the decision clearly erroneous.

3. That the trial judge did not award custody to the parent for whom the children in the instant case expressed a preference, in light of that parent's threat of suicide and its effect upon the voluntariness of such a preference and in light of the ages of the children and their need for training and education, did not make the award of custody clearly erroneous.

4. When several instances in the record independently established that one of the parties had marital difficulties, it was not prejudicial error for the trial judge to consider a petition filed in Family Court as evidence of marital difficulty.

5. An expressed parental preference is important when freely made; however, it is not even then controlling: rather, it is only one factor to be considered. The controlling considerations are the best interests and the welfare of the children.

6. When, after a divorce and determination of custody has been made, a change of custody is sought by the party to whom custody has been denied, a decision against must be made on the basis of what is best for the children. The fundamental factors for consideration in determining that question are the attitude of the parties toward the children since the divorce, the ages of the children, the ages of the parents, the preference of the children as to which parent they desire to live with, the occupations of the parents, the stability of the home, the morals of the parents, and any other matters that bear upon the welfare of the children.

7. The Clean Hands Doctrine is not an absolute bar to favorable action on a motion by a party in a divorce case who is delinquent under prior orders of the court. The court has discretion to act on such a motion, particularly in custody matters, where the interests of children of the parties are paramount.

McGee, Hankla, Backes & Wheeler, Minot, for petitioner-appellant.

Bosard, McCutcheon, Kerian, Schmidt & Holum, Minot, for respondent-appellee.

ERICKSTAD, Chief Justice.

This is an appeal from an order of the District Court of Ward County awarding custody of Gary and Eddie Corley to their father, Edwin B. Corley. By a divorce decree granted in the Common Pleas Court of Clark County, Ohio, on May 20, 1968, the mother of the children, Ann C. Jordana, formerly Corley, had previously been awarded custody.

Ann and Edwin were married in Cambridge, England, on August 29, 1959. At that time Edwin was an enlisted man in the United States Air Force. Ann was and is an English citizen. Two children were born of that marriage: Gary Carl Corley, on February 20, 1960, while the parties were still in England; and Eddie DeWayne Corley, on August 4, 1962, when the parties were residing in the United States.

Gary was eight years old and Eddie was five years old at the time of the divorce. Although custody of the children was given to Ann, visitation rights were given to Edwin. He was to be permitted to visit each week from one p.m. on Saturday until five p.m. on Sunday, in addition to a two-week vacation period each summer.

On November 18, 1968, Ann married Captain Modesto Jordana, an Air Force officer. One child, Richard, age two and a half years at the time of Ann's motion in Ward County District Court, had been born of this marriage. Richard's custody is not before this court. In December 1968, Edwin married Shirley Stewart, who had three children by a former marriage, ages thirteen, eleven, and eight in 1973 when this matter was heard. No children had been born of this latter union at that time.

Ann left with Captain Jordana and her children, Gary and Eddie, for Itasuki Air Force Base in Japan shortly after their marriage in November of 1968. They remained in Japan until November 1, 1969, at which time they moved with Captain Jordana to Manila, Philippines, where they remained until July of 1972. In July 1972 Captain Jordana was assigned to the Minot Air Force Base, Minot, North Dakota. Ann and the children did not accompany him to North Dakota; instead, they moved to Cambridge, England, where they visited with Ann's parents for some nine months. In April 1973 they joined Captain Jordana in Minot. In July of 1973 the children, Gary and Eddie, were allowed to fly to Missouri to visit their father, who was residing on a farm on the outskirts of Jefferson City.

During the nearly five-year period from November 1968 to April 1973, Edwin was unaware of the whereabouts of Gary and Eddie. The trial court found that Ann did not keep Edwin informed of her address and that during this time Edwin actively sought to ascertain the whereabouts of his former wife and his children through political and Air Force channels, to no avail.

When the children went to Missouri to visit their father, he refused to return them and instead filed a petition with the Circuit Court, Cole County, Missouri, seeking their custody. In response thereto Ann filed a motion with the District Court of Ward County, North Dakota, asking for an order requiring Edwin to return the children to her in North Dakota. The district court of Ward County then ordered Edwin to appear in court in Ward County with the children.

Before a hearing could be held in Missouri on Edwin's petition and without waiting for him to appear in court in North Dakota with the children, Ann surreptitiously removed the boys from Missouri and returned them to North Dakota under an assumed name.

On September 25, 1973, after due hearing, the district court of Ward County awarded custody of the children to their father.

The trial court found that the best interests of the children would be served by awarding the custody of the children to Edwin. The issue is whether that finding is clearly erroneous.

In Ferguson v. Ferguson, 202 N.W.2d 760 (N.D.1972), at 761, in paragraph 3 of the Syllabus, we held:

'Findings that a party to a divorce action has committed adultery, That the best interests of the children of the parties to a divorce action would be served by awarding custody of the children to one party as opposed to the other, and that a particular division of property between the parties to divorce action is equitable, are appropriately dealt with on appeal as findings of fact. Consequently, a review of these findings Is limited to a determination of whether or not they are 'clearly erroneous' within the purview of Rule 52(a), N.D.R.Civ.P.' (Emphasis added.)

This approach was reaffirmed in Silseth v. Levang, 214 N.W.2d 361 (N.D.1974), at 362, paragraph 5 of the Syllabus.

Let us review the evidence in light of that rule.

It was established at the hearing that Edwin and his second wife, Shirley, were married December 5, 1968; that Shirley had three children, all girls, by a former marriage; that they live on a five-acre plot about nine miles from Jefferson City, Missouri; that Shirley is employed as a supervisor at a Jefferson City Westinghouse plant, with a net take-home salary of $630 a month; that Edwin manages and owns a service station and tire distribution center, in addition to leasing additional land on which he raises about fifty-eight head of cattle and some chickens; that Edwin's average income is approximately $9,000 per year; that the home in which they live is a brick building with three bedrooms and a full basement, valued at $28,000, encumbered with a $16,000 mortgage; that Shirley welcomes the boys into her home; that according to Shirley, Edwin has been a good father to her girls and Shirley believes that she could be a good mother to the boys.

The testimony tended to show that the boys lived a different life in Missouri with Edwin than in North Dakota with Ann. The trial judge thought those differences significant. While in Missouri, the boys were given the responsibility of seeing that certain chores around the farm and at Edwin's business were performed. For instance, Gary learned how to mount and dismount tires and assisted in cleaning Edwin's place of business. The boys also fed the cattle and chickens. The trial judge viewed the work and the responsibility favorably.

Edwin testified that when the boys arrived in Missouri, their language, behavior, and general mannerisms showed a disrespectful if not belligerent attitude towards others, and that their language and attitude showed an improvement after staying with him.

When Edwin refused to return the boys to North Dakota, Ann did everything she possibly could to get the boys back. As previously mentioned, she eventually returned the boys to North Dakota under an assumed name, after removing them from school in Missouri. Prior to taking the children, Ann wrote numerous letters to Edwin and called numerous times, making various threats and accusations. In one letter she suggested that Edwin come to North Dakota to stay with her so they could work things out and that Captain Jordana need not know about the proposed visit. She also asked about the Missouri divorce laws, stating she wished to get a divorce from Captain Jordana. It is with this background that the trial judge noted an argument between Edwin and...