Ludwig v. Burchill, 930270

• Decision Date: 30 March 1994
• Docket Number: No. 930270,930270
• Citation: 514 N.W.2d 674
• Parties: Alana (Burchill) LUDWIG, Plaintiff and Appellee, v. Allen BURCHILL, Defendant and Appellant. Civ.
• Court: North Dakota Supreme Court

Page 674

514 N.W.2d 674

Alana (Burchill) LUDWIG, Plaintiff and Appellee, v. Allen BURCHILL, Defendant and Appellant.

Civ. No. 930270.

Supreme Court of North Dakota.

March 30, 1994.

Carol Susag Nelson, Valley City, for defendant and appellant.

Leslie Deborah Johnson, Fargo, for plaintiff and appellee.

LEVINE, Justice.

Allen Burchill appeals from an amended judgment awarding custody of his son to the child's mother, Alana Ludwig. We affirm.

Burchill and Ludwig were married June 30, 1984 and divorced May 24, 1989. They had one child during the marriage. The original divorce judgment awarded custody of the child to Burchill during the school year and to Ludwig during the summer. In 1990, Ludwig moved for a change of custody. The trial court denied her motion and we affirmed in Ludwig v. Burchill, 481 N.W.2d 464 (N.D.1992). In 1993, Ludwig again moved for a change of custody. The trial court granted her motion, awarding custody to Ludwig during the school year and to Burchill during the summer. Burchill appealed.

Burchill first argues that the trial court erred in modifying custody because there were no changes in circumstances that so adversely affected the child to require a change in custody to foster the child's best interests. Particularly, Burchill argues that there was no evidence that his second DUI conviction and his continued drinking adversely affected the child.

We treat a trial court's custody determinations as findings of fact and review them under a clearly erroneous standard. NDRCivP 52(a); e.g., Foreng v. Foreng, 509 N.W.2d 38 (N.D.1993) [original custody determination]; Johnson v. Schlotman, 502 N.W.2d 831 (N.D.1993) [modification of custody]. A finding of fact is clearly erroneous if it is induced by an erroneous view of the law, if no evidence exists to support it, or if the reviewing court, on the entire evidence, has a definite and firm conviction that the trial court made a mistake. E.g., Johnson v. Schlotman, supra.

In a change of custody determination, the trial court first must determine whether a significant change of circumstances has occurred since the prior custody decree, and if so, whether that change so adversely affects the child that it compels or requires a change in custody to foster the child's best interests. E.g., Hagel v. Hagel, 512 N.W.2d 465 (N.D.1994); Johnson v. Schlotman, supra at 834; Delzer v. Winn, 491 N.W.2d 741, 743-44 (N.D.1992); Blotske v. Leidholm, 487 N.W.2d 607, 609 (N.D.1992).

We believe that evidence exists that the change of circumstances in this case so adversely affected the child that it required a change in custody to foster the child's best interests. The trial court did not make an express finding that the change of circumstances in this case adversely affected the child. However, we may infer from the findings it did make that the trial court determined that the child was affected adversely by the change in circumstances. Guthmiller v. Guthmiller, 448 N.W.2d 643 (N.D.1989). In the original judgment, which awarded primary custody to Burchill, the trial court found that Burchill was better able to provide "a good home and the attention and care that a young boy so badly needs," whereas Ludwig's future was "very uncertain." The trial court also noted that "[b]oth of the parties have had a problem with alcohol."

The trial court denied Ludwig's 1990 change of custody motion, opting in favor of maintaining the stability of Burchill's relationship with the child. We elaborated the circumstances underlying the trial court's resolution of Ludwig's first motion in our previous opinion. See Ludwig v. Burchill, supra at 466-69. Of particular importance to this appeal is the trial court's emphasis at the time of the first motion on two conditions: that Burchill would switch the hours of his job from the night shift to the day shift and Burchill would "attend Alcoholics Anonymous at least twice per month and ... secure a sponsor." The trial court was sensitive to Burchill's alcohol abuse and DUI conviction, and to the effect of Burchill's night-shift hours on the child's day-to-day care and schedule; however, it reasoned that Burchill was in a transitional period and had plans to stabilize his life. It was to allay these concerns that the trial court ordered Burchill to attend AA and assumed that Burchill would adjust his work schedule to allow a more stable and consistent relationship with his child. See Gravning v. Gravning, 389 N.W.2d 621, 623-24 (N.D.1986) [approving of trial court's conditional custody award on basis that conditions were "connected to the background and circumstances of these parents" and "[ ]related to the well-being of the child"].

At the time of Ludwig's second change of custody motion, however, both the trial court's expectations and Burchill's good intentions had failed to materialize. Burchill had not attended AA except on four occasions in 1991. He continued to drink and was convicted of a second DUI charge. He continued to work the night shift at his job, which would result in the child's spending every night but four each month at Burchill's parents' home. The trial court found that Burchill had changed from "a lead actor to a supporting role" in his parenting responsibilities. Burchill's second DUI conviction was particularly significant to the trial court, as it "sent a key message ... that [Burchill] opted to continue to drink alcohol and risk losing custody." The trial court was persuaded by expert testimony that Burchill's second DUI conviction was "a 'hard indicator' of alcohol dependence and that such dependence has a negative effect on parenting skills," particularly Burchill's ability to provide transportation while his license was suspended and the further-reaching effect on the child of growing up with an alcohol-dependent parent. The trial court found that Ludwig, on the other hand, had successfully stabilized her life and had "a pivotal lead" over Burchill in moral fitness and mental and physical health.

In effect, the trial court found that Burchill's failure to attend AA as ordered by the trial court, his continued drinking and second DUI conviction, his failure to change his work schedule, and his abdication of his parenting responsibilities to his parents, juxtaposed against Ludwig's newly stabilized life, constituted a significant change of circumstances that required a change in custody. There is evidence to support the trial court's determination that this change, particularly Burchill's second DUI conviction and continued drinking, so adversely affected the child that it required a change in custody to foster the child's best interests, and we are not left with a definite and firm conviction that the trial court made a mistake. ¹

Burchill also challenges several findings of fact, essentially on two grounds. First, he argues that the trial court erred in its weighing of the evidence. But it is up to the factfinder, not us, to weigh conflicting evidence. The mere fact that we might have viewed the evidence differently does not entitle us to reverse the trial court. Reede v. Steen, 461 N.W.2d 438, 440 (N.D.1990). Second, he complains of misstatements in the memorandum opinion. But these errors were corrected in the trial court's order for second amended judgment and are not, in our opinion, substantive. We conclude that the trial court's findings are not clearly erroneous.

Finally, Burchill argues that the trial court erred by denying his motion for appointment of a guardian ad litem. He asserts that NDCC Sec. 14-09-06.4 requires the trial court to grant such a motion. We disagree. Section 14-09-06.4 provides:

"In any action for an annulment, divorce, legal separation, or other action affecting marriage, where either party has reason for special concern as to the future of the minor children, and in actions affecting the marriage relationship where the custody of such children is contested, either party to the action may petition the court for the appointment of a guardian ad litem to represent the children concerning custody, support, and visitation. The court, in its discretion, may appoint a guardian ad litem on its own motion. If appointed, a guardian ad litem shall serve as an advocate of the children's best interests. The court may direct either or both parties to pay the guardian ad litem fee established by the court. If neither of the parties are able to pay the fee, the court may direct the fee to be paid, in whole or in part, by the county of venue. The court may direct either or both parties to reimburse the county, in whole or in part, for such payment."

We do not read the language of section 14-09-06.4 as removing the appointment of a guardian ad litem upon a party's motion from the trial court's discretion. See Healy v. Healy, 397 N.W.2d 71, 75 (N.D.1986) [holding that a trial court may appoint a guardian ad litem on its own initiative at its discretion]. Here, the trial court denied Burchill's motion because it was "satisfied that it [could] consider the best interests of the child involved without the appointment of a guardian ad litem." The trial court had presided over and decided the first motion for modification after appointing a guardian ad litem and obviously was familiar with the background of the case and the circumstances of the family provided in the prior report of the guardian ad litem. We conclude the trial court did not decide Burchill's motion in an arbitrary, unreasonable, or unconscionable way, see Swanston v. Swanston, 502 N.W.2d 506, 509 (N.D.1993), and, thus, did not abuse its discretion.

Affirmed.

VANDE WALLE, C.J., and NEUMANN and SANDSTROM, JJ., concur.

MESCHKE, Justice, dissenting.

I respectfully dissent. In my opinion, the trial court misunderstood the two-stage decisional process for changing a child's custody, mistakenly applied the law of behavioral conditions for custody, and failed to make the essential finding of necessity to change...