Koller v. Koller, 10904

• Decision Date: 21 November 1985
• Docket Number: No. 10904,10904
• Citation: 377 N.W.2d 130
• Parties: Barbara KOLLER, Plaintiff and Appellee, v. Lawrence KOLLER, Defendant and Appellant. Civ.
• Court: North Dakota Supreme Court

Page 130

377 N.W.2d 130

Barbara KOLLER, Plaintiff and Appellee, v. Lawrence KOLLER, Defendant and Appellant.

Civ. No. 10904.

Supreme Court of North Dakota.

Nov. 21, 1985.

Edwin W.F. Dyer III, Bismarck (argued), and Phillip J. Brown, Bismarck, for plaintiff and appellee.

Bryan L. Giese, Mandan, for defendant and appellant.

VANDE WALLE, Justice.

Lawrence Koller appealed from an order of the district court denying his motion to modify a previous divorce judgment by granting him custody of the parties' three minor children. Lawrence asserts on appeal that the trial court's findings are so "sparse" and "conclusory" that they should be deemed to be clearly erroneous. We disagree and affirm the order.

In Ebertz v. Ebertz, 338 N.W.2d 651 (N.D.1983), this court set forth the two issues a trial court must resolve in deciding whether to grant or deny a motion to modify custody:

"This court distinguishes between the original award of custody and a decision to modify custody. Miller v. Miller, 305 N.W.2d 666 (N.D.1981). When initially awarding custody, the trial judge determines the single issue of the child's best interests. Sec. 14-09-06.1, N.D.C.C. When modifying custody, the trial judge must determine two issues: whether or not there has been a significant change of circumstances since the original divorce decree and custody award and, if so, whether or not those changed circumstances are such that a change in custody fosters the best interests of the child. [Citations omitted.]

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"The change of circumstances must not only be significant, but it must also indicate that modifying custody will promote the children's best interests." 338 N.W.2d at 654-655.

The burden of showing a change of circumstances which affects the best interests of the child and requires a change in custody is on the party seeking modification. Lapp v. Lapp, 336 N.W.2d 350 (N.D.1983). On appeal, this court will not set aside the trial court's determination unless it is clearly erroneous under Rule 52(a), N.D.R.Civ.P. Ebertz, supra; Lapp, supra.

Following a hearing on Lawrence's motion, the trial court made the following oral findings from the bench:

"THE COURT: The situation was originally in this case that I was faced with a decision as to which of two people should have custody within the context of the divorce proceeding. I was further faced with the situation in which it appeared to me that both parties were capable of caring for children, but neither had been demonstrating any willingness to do that in the past.

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"My view of the matter was, and still is, while Mr. Koller seems to be a pleasant enough man and rather articulate and, again, has the capability of being a parent, his entire history is to the contrary. When given the opportunity to do that, he never has. I have no reason to think that he would not continue in that manner.

"My view is that there is a highly realistic possibility here, from the standpoint of the children, that Mrs. Koller is either going to cope with it or parental rights will be terminated, ¹ but from what I hear from the witness stand today, Social Services is not of that view yet...."

In addition to its oral findings, the trial court made the following written findings:

"Having considered all of said evidence, and the provisions of Sec. 14-05-22 and 14-09-06.2 NDCC, the Court finds that there has not been any change of circumstances of the parties since the entry of the original Divorce and Child Custody Decree in the above-entitled divorce action sufficient to warrant a change in the custody of the minor children of the parties or the other provisions relating to child custody, visitation...