Lapp v. Lapp

Decision Date14 July 1983
Docket NumberNo. 10378,10378
Citation336 N.W.2d 350
PartiesLynette F. LAPP, Plaintiff and Appellant, v. Dale E. LAPP, Defendant and Appellee. Civ.
CourtNorth Dakota Supreme Court

Daniel J. Chapman (argued), of Chapman & Chapman, Bismarck, for plaintiff and appellant.

Marnell Ringsak (argued), William C. Severin, Bismarck, for defendant and appellee.

PAULSON, Justice.

This is an appeal by Lynette F. Lapp from an order that denied her motion requesting modification of a previous order granting Lynette F. Lapp and Dale E. Lapp divided custody of their daughter, Trina Lapp. We affirm.

Lynette and Dale have been before this court previously in a dispute involving the custody of their daughter. See Lapp v. Lapp, 293 N.W.2d 121 (N.D.1980), for a more complete discussion of the facts leading to the original custody determination.

Lynette and Dale were married in 1971 and divorced in 1979. They had one child, Trina, who was born in 1973. In Lynette's first appeal to this court, we affirmed the part of the trial court's judgment that granted Lynette and Dale divided custody on a six-month alternating basis with one weekend visitation per month granted to the noncustodial parent. Lapp, supra 293 N.W.2d at 128. We noted in Lapp that cooperation and the combined efforts of both parents are necessary to make a custody arrangement successful. Lapp, supra 293 N.W.2d at 131.

It has been three years since our first Lapp opinion, and Trina is now ten years old. It is Lynette's contention that circumstances have changed, justifying the modification of the previous custody order so that she has sole custody of Trina and Dale has reasonable visitation rights. Lynette alleged several incidents evidencing a change in circumstances that mandate a modification of custody, 1 however, most are only examples of the lack of cooperation between Lynette and Dale. Lynette's major contention showing a change of circumstances meriting a modification of the custody order is the fact that Dale admits that he has been living with a woman to whom he is not married while Trina is in his custody. 2 Lynette argues that this fact, along with the other circumstances she alleges, demonstrates a moral unfitness which justifies terminating Dale's right of custody.

After a hearing the trial judge issued his findings of fact and conclusions of law in a memorandum opinion. Although the findings and conclusions are commingled, the memorandum opinion is sufficient under Rule 52(a) of the North Dakota Rules of Civil Procedure. Schmidt v. Schmidt, 325 N.W.2d 230, 232 (N.D.1982). The trial judge, discussing Dale's living arrangement, determined:

"Whether Mr. Lapp's living arrangement (assuming it is carried on indefinitely) would have any detrimental effect upon the child is, of necessity, purely speculative. We may also speculate that changing the custody relationship might also adversely affect the child. I see no point in changing the custodial arrangement where there is no indication that it is adversely affecting the child and, on the contrary, all evidence indicates that the child is happy and well adjusted. I do not mean by this to suggest that an actual adverse effect must be demonstrated before a change of custody can ever be achieved. In this situation, however, in which the parents live in the same community and the child will see each regularly, regardless of the precise terms of visitation and custody, I see no useful purpose in altering existing arrangements."

The judge then denied Lynette's motion for a modification of custody and she appealed.

In Miller v. Miller, 305 N.W.2d 666, 671 (N.D.1981), we stated that when a trial court considers a request to modify custody, it should determine

"(a) whether or not there has been a significant change of circumstances since the original divorce decree and custody award; and, if so, (b) whether or not those changed circumstances are such that the best interests of the child would be served by a change in custody."

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, in this case Lynette. See Miller, supra 305 N.W.2d at 671.

Section 14-09-06.1 of the North Dakota Century Code states the important policy requiring that custody of a child be awarded to "promote the best interests and welfare of the child". Section 14-09-06.2, N.D.C.C., lists ten factors for a court to consider when it determines the best interests of the child. The factor that Lynette brings to our attention in this case and that we have stated can be considered by a court when it is awarding custody is the "moral fitness of the parents". See Larson v. Larson, 294 N.W.2d 616, 619 (N.D.1980).

It is Lynette's contention that, because Dale has been living with a woman to whom he is not married while Trina is in his custody, Dale is an immoral parent who should not have custody of his daughter. Lynette relies upon our opinion in Jacobson v. Jacobson, 314 N.W.2d 78 (N.D.1981), in which we reversed a district court order awarding custody to a mother living in an open homosexual relationship. Jacobson is distinguishable from the instant case because the fact that the mother was involved in a homosexual relationship in Jacobson was of major importance in our decision. See Jacobson, supra 314 N.W.2d at 82.

Lynette also relies upon an Illinois case we cited in Jacobson, i.e., Jarrett v. Jarrett, 78 Ill.2d 337, 36 Ill.Dec. 1, 400 N.E.2d 421 (1979), cert. denied, 449 U.S. 927, 101 S.Ct. 329, 66 L.Ed.2d 155 (1980). In Jarrett a majority of the Illinois Supreme Court modified a custody award at the father's request because of the mother's open and continuing cohabitation with her boyfriend. In Jarrett the mother testified that she did not want to remarry and that she had no plans to do so. The facts of the instant case are distinguishable as both Dale and his girlfriend testified during the hearing that they were engaged to be married.

An Illinois appellate court analyzed Jarrett in Brandt v. Brandt, 99 Ill.App.3d 1089, 55 Ill.Dec. 78, 425 N.E.2d 1251 (1981). In Brandt a father petitioned the court for a transfer of custody of two daughters from their mother, his ex-wife. The mother was living with a man to whom she was not married...

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  • Johnson v. Schlotman
    • United States
    • North Dakota Supreme Court
    • July 1, 1993
    ...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 350 (N.D.1983). There are changed circumstances in this case: Jon remarried, Dianne informed the children that she is a lesbian, Dianne resides w......
  • Blotske v. Leidholm, 910414
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    • North Dakota Supreme Court
    • July 28, 1992
    ...The party seeking a change of custody must establish a significant change in circumstances which either "requires" [Lapp v. Lapp, 336 N.W.2d 350 (N.D.1983) ] a change of custody for the child's best interests or "fosters" [Ebertz v. Ebertz, 338 N.W.2d 651 (N.D.1983) ] or "serves" [Ludwig v.......
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    • United States
    • North Dakota Supreme Court
    • October 2, 1990
    ...the credibility of the witnesses by hearing and observing them. Ebertz v. Ebertz, 338 N.W.2d 651, 654 (N.D.1983); Lapp v. Lapp, 336 N.W.2d 350, 353 (N.D.1983) (citing Lapp, 293 N.W.2d at 129). In discussing our review when governed by the "clearly erroneous" standard we have "We give due re......
  • Von Bank v. Von Bank, 890053
    • United States
    • North Dakota Supreme Court
    • July 17, 1989
    ...a redetermination of placement of a child's custody is a question of fact. Miller v. Miller, 305 N.W.2d 666 (N.D.1981); Lapp v. Lapp, 336 N.W.2d 350 (N.D.1983); Pitsenbarger v. Pitsenbarger, 382 N.W.2d 662 (N.D.1986). The changes must not only be significant, but they must also indicate tha......
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