Lapp v. Lapp, 9735

• Citation: 293 N.W.2d 121
• Decision Date: 15 May 1980
• Docket Number: No. 9735,9735
• Parties: Lynnette F. LAPP, Plaintiff and Appellant, v. Dale E. LAPP, Defendant and Appellee. Civ.
• Court: United States State Supreme Court of North Dakota

Page 121

293 N.W.2d 121

Lynnette F. LAPP, Plaintiff and Appellant, v. Dale E. LAPP, Defendant and Appellee.

Civ. No. 9735.

Supreme Court of North Dakota.

May 15, 1980.

Wheeler, Wolf, Wefald, Peterson & McDonald, Bismarck, for plaintiff and appellant; argued by Robert O. Wefald, Bismarck.

Kapsner & Kapsner, Bismarck, for defendant and appellee; argued by Carol Ronning Kapsner, Bismarck.

ERICKSTAD, Chief Justice.

The plaintiff appeals from a judgment of divorce entered in Burleigh County District Court, South Central Judicial District, on November 5, 1979. We remand the judgment for modification and affirm as modified.

The plaintiff, Lynnette F. Lapp (Lynette), and the defendant, Dale E. Lapp (Dale), were married in Bismarck, North Dakota, on November 27, 1971. One child was born of the marriage, namely, Trina M. Lapp, on April 1, 1973.

Lynnette and Dale lived together in their mobile home in Bismarck until early January of 1979 when Lynnette separated from her husband and moved into an apartment. She commenced an action for legal separation by service of a summons and complaint upon Dale on January 10, 1979, and, in conjunction therewith, moved for, and was granted, an interim ex parte order giving her temporary custody, care, and control of Trina. Dale answered the complaint by denying the pertinent allegations, and by his counterclaim, the action was converted to one of divorce on the grounds of irreconcilable differences. Dale requested a hearing on the interim order which was conducted on January 22, 1979. The district court thereafter ordered, in pertinent part, that temporary custody of the minor child remain with Lynnette, and that Dale be allowed to visit the child "at least one day each week."

Trial was held in Burleigh County District Court in early October of 1979. A memorandum opinion was issued by the district court on October 11, 1979, and the findings of fact, conclusions of law, and

order for judgment were executed on November 2, 1979. The district court found that both Lynnette and Dale were fit, willing, and able parents, and in its conclusions of law, the court made the following relevant determinations as to custody of the parties' minor child and the division of the marital estate:

"IV.

"The plaintiff will be awarded the 1975 Blazer vehicle and will be required to assume the indebtedness thereon.

"V.

"The mobile home of the parties will be sold and the proceeds used to pay any indebtedness against the mobile home, with the balance of the equity therein to be divided equally between the parties.

"VI.

"The defendant shall receive, free and clear of any claim of the plaintiff, the partially finished house of the parties in Grande Prairie Estates and the land in Mercer County that he received from his father. In exchange therefor, the defendant is to pay all of the bills of the parties, except for the outstanding indebtedness on the 1975 Blazer.

"VII.

"Custody of the minor child of the parties, namely, Trina M. Lapp, born on the 1st day of April, 1973, will be divided equally between the parties. The plaintiff shall have custody of the child for a period of six (6) months each year, beginning with the 1st day of August, 1979. Commencing with the 1st day of February, 1980, the defendant will be awarded custody of the child for a period of six (6) months. Thereafter, the custody will alternate in the same manner. Each non-custodial parent will be awarded one (1) weekend visitation per month, and the party requesting visitation will give at least seventy-two (72) hours notice of the visitation requested and will be responsible for picking up . . . the child not earlier than 10:00 a. m. on Saturday . . . to be returned not later than 8:15 p. m. on Sunday. In the event a parent's or grandparent's birthday occurs in a non-custodial period, the non-custodial parent shall be entitled to custody of the child during said birthday between the hours of 10:00 a. m. and 8:15 p. m. The defendant will also be entitled to custody of the child between the hours of 10:00 a. m. and 8:15 p. m. on July 4th and December 25th every other year, commencing with December 25, 1979. The plaintiff will be entitled to custody of the minor child between 10:00 a. m. and 8:15 p. m. on the child's birthday every other year, commencing in 1979."

Judgment was entered on November 5, 1979.

On December 26, 1979, Lynnette filed a notice of appeal, and later applied to the district court for an order to stay the judgment pending appeal. The district court granted the stay of execution on January 25, 1980, and ordered that the stay would terminate concurrently with the expiration of the current school year.

On appeal, Lynnette has raised two issues, namely:

(1) Whether or not the district court's award of child custody, which provided for split or alternating custody of the minor child between the parties on a six-month rotating basis, was clearly erroneous under Rule 52(a) of the North Dakota Rules of Civil Procedure; and

(2) Whether or not the division of real property was clearly erroneous?

Lynnette also asked this court to stay the judgment of the district court until such time as a decision is rendered on appeal.

The law concerning our scope of review in divorce actions is well-settled. A trial court's determinations on matters of child custody, child support, alimony, and the division of property are treated as findings of fact. Bosma v. Bosma, 287 N.W.2d 447 (N.D.1980); Hegge v. Hegge, 236 "A particular finding of fact is clearly erroneous when, although there is some evidence to support it, the reviewing court on the entire evidence is left with the definite and firm conviction that a mistake has been made. Bender v. Bender, 276 N.W.2d 695 (N.D.1979); Bohnenkamp v. Bohnenkamp, 253 N.W.2d 439 (N.D.1977); In re Estate of Elmer, 210 N.W.2d 815 (N.D.1973).

N.W.2d 910 (N.D.1975). The findings of the trial court will not be set aside on appeal unless they are clearly erroneous. Rule 52(a), N.D.R.Civ.P. As this court recently said in Nastrom v. Nastrom, 284 N.W.2d 576, 580 (N.D.1979):

"Our scope of review is thus limited by the clearly erroneous rule, and rightly so, for a judge present in the courtroom is in a much better position to ascertain the true facts by listening to and observing the demeanor of the witnesses than we are by reading the cold record."

Although the district court's determinations in the present case as to custody and the division of property are labeled conclusions of law, labels placed upon such matters by the trial court are not conclusive. Rummel v. Rummel, 265 N.W.2d 230 (N.D.1978). Whether or not a particular finding is a finding of fact or a conclusion of law is to be determined by the reviewing court. Bosma v. Bosma, 287 N.W.2d at 451.

With these considerations in mind, we shall review the district court's relevant findings to determine whether or not they are clearly erroneous.

CHILD CUSTODY

This court has repeatedly held that the best interests and welfare of the child must dictate custody in a divorce action. Bohnenkamp v. Bohnenkamp, 253 N.W.2d 439 (N.D.1977); Kottsick v. Carlson, 241 N.W.2d 842 (N.D.1976); DeForest v. DeForest, 228 N.W.2d 919 (N.D.1975); Ferguson v. Ferguson, 202 N.W.2d 760 (N.D.1972); see Sections 14-09-06.1 and 14-09-06.2, N.D.C.C. Lynnette contends that the trial court failed to take the best interests of the child into consideration when it ordered that custody be split between the parties on a six-month alternating basis. ¹ She asserts that this contention is supported by the trial court's failure to mention Section 14-09-06.2, N.D.C.C., and the factors enumerated therein, in its memorandum opinion.

Section 14-09-06.2, N.D.C.C., was enacted by our Legislature in 1979, and provides as follows:

"14-09-06.2. Best interests and welfare of child Court consideration Factors. For the purpose of custody, the best interests and welfare of the child shall be determined by the court's consideration and evaluation of all factors affecting the best interests and welfare of the child. These factors include all of the following when applicable:

1. The love, affection, and other emotional ties existing between the parents and child.

2. The capacity and disposition of the parents to give the child love, affection, and guidance and to continue the education of the child.

3. The disposition of the parents to provide the child with food, clothing, medical care, or other remedial care recognized and permitted under the laws of this state in lieu of medical care, and other material needs.

4. The length of time the child has lived in a stable, satisfactory environment and the desirability of maintaining continuity.

5. The permanence, as a family unit, of the existing or proposed custodial home.

6. The moral fitness of the parents.

7. The mental and physical health of the parents.

8. The home, school, and community record of the child.

9. The reasonable preference of the child, if the court deems the child to be of sufficient intelligence, understanding, and experience to express a preference.

10. Any other factors considered by the court to be relevant to a particular child custody dispute.

"In any proceeding under this chapter, the court, at any stage of the proceedings after final judgment, may make orders about what security is to be given for the care, custody, and support of the unmarried minor children of the marriage as from the circumstances of the parties and the nature of the case is equitable."

This statutory provision is merely a codification of those factors which have always been relevant for consideration by a trial court when determining custody in a divorce dispute. Section 14-09-06.2 is not a significant departure from the existing case law which has evolved throughout the past decade in this state. See Muraskin v. Muraskin, 283 N.W.2d 140 (N.D.1979); Vetter v. Vetter, 267 N.W.2d 790 (N.D.1978). A close examination of the record reveals that the...