Ludwig v. Burchill, 910201

• Decision Date: 28 February 1992
• Docket Number: No. 910201,910201
• Citation: 481 N.W.2d 464
• Parties: Alana LUDWIG, formerly Alana Burchill, Plaintiff and Appellant, v. Allen BURCHILL, Defendant and Appellee. Civ.
• Court: North Dakota Supreme Court

Page 464

481 N.W.2d 464

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

Civ. No. 910201.

Supreme Court of North Dakota.

Feb. 28, 1992.

Leslie Deborah Johnson (argued), Fargo, for plaintiff and appellant.

Carol S. Nelson (argued), Valley City, for defendant and appellee.

ERICKSTAD, Chief Justice.

Alana Ludwig appeals from the judgment of the District Court for Barnes County, denying her motion to modify a previous judgment granting custody of the parties' child to her former husband Allen Burchill. We affirm.

On May 24, 1989, the parties to this case were divorced. At that time, joint custody of the parties' then three-year-old child, Justin, was ordered so that Alana would have physical custody from June 1 to August 15, and Allen would have physical custody from August 15 to May 31 of each year. On August 13, 1990, Alana filed a motion for change of custody. At the request of Alana, a guardian ad litem was appointed on September 4, 1990, pursuant to section 14-09-06.4, N.D.C.C. Also, at the request of Alana, the district court, on or about January 9, 1991, ordered both parties to submit to an alcohol and psychological evaluation. After a hearing on March 18 and 21, 1991, the district court denied Alana's motion for a change of custody. ¹ This appeal followed.

When a trial court's judgment regarding child custody is appealed to this Court, we review the trial court's decision under the "clearly erroneous" standard of Rule 52(a), N.D.R.Civ.P. Ebertz v. Ebertz, 338 N.W.2d 651, 654 (N.D.1983); Silseth v. Levang, 214 N.W.2d 361 (N.D.1974). We will not disturb a trial court's custody award unless, upon review of the record, we are left with a firm and definite conviction that a mistake has been made. Miller v. Miller, 305 N.W.2d 666, 671 (N.D.1981); Gross v. Gross, 287 N.W.2d 457 (N.D.1979).

We have previously noted that a trial court must distinguish between original custody decisions and decisions to modify custody. Heinen v. Heinen, 452 N.W.2d 331, 333 (N.D.1990). In an original custody proceeding, the trial court focuses solely on what is in the best interests of the child. Id. However, in an action seeking to modify custody, a court must generally, first determine whether or not there has been a significant change of circumstances since the previous custody decision, and, if so, then determine whether or not the change in circumstances is such that a change in custody will serve the best interests of the child. Id. Additionally, the "burden of showing a significant change of circumstances which requires a change of custody is on the party seeking modification of the custody award." Id.

We have recognized, as a general proposition, "that it is not in the best interests of a child to unnecessarily change custody and bandy the child back and forth between the parents." Lapp v. Lapp, 293 N.W.2d 121, 128 (N.D.1980); see also Silseth v. Levang, 214 N.W.2d at 364. With this in mind, we have said that "[c]onsecutive determinations about custody cannot change custody back and forth as the scales settle slightly toward first one parent and then the other as their circumstances change." Orke v. Olson, 411 N.W.2d 97, 100 (N.D.1987). Rather, "[t]he change of circumstances must weigh against the child's best interests before a change in custody is justified." Miller v. Miller, 305 N.W.2d at 672.

In this case, the trial court, in its memorandum opinion, considered the following relevant changed circumstances, as they related to the various statutory factors to be considered regarding custody, contained in section 14-09-06.2, N.D.C.C.:

"Section 14-09-06.2, N.D.C.C. lists the various factors to be considered regarding custody. In making its decision, the Court will consider these factors as set forth in the statute. In looking at the facts that follow, the Court believes there are several changed circumstances and these will be self-evident.

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

"Judge Hoberg noted that both parties loved Justin. This has not changed. The Plaintiff's showing of affection may be more open than the Defendant's, but this lack of public affection should not be interpreted as a lack of love. The factor balances evenly between the two parties.

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

"Both parties seem to have equal ability to provide these necessities to Justin. The Plaintiff's position has improved since the divorce as she has entered into her third marriage which seems stable.

"3. The disposition of the parents to provide the child with food, clothing, medical care, ... and other material needs.

"At the time of the divorce, the Plaintiff was living out of wedlock with David Ludwig and was working as a pizza assembler. She is now married to Mr. Ludwig and living in Casselton, North Dakota where she is a full time hairdresser. They rent a home where the couple live with Mr. Ludwig's two sons from a prior marriage, who are ages nine and eight. Mr. Ludwig is the assistant manager of the propane department at Cenex in Casselton. The Ludwigs are expecting their first child in July of 1991. The Ludwig's home has four bedrooms and would appear to have adequate room for Justin.

"At the time of the divorce, the Defendant was involved in his farming operation. Due to economic setbacks, the Defendant has left farming and has moved to Jamestown, North Dakota where he works in the receiving department of Wal-Mart. He is unmarried, but dating Karen Christensen, with whom he sleeps on occasion. At present, the Defendant has a night shift, but his hours are flexible so that it is likely he could convert to a day shift. The Defendant and Justin are living with the Defendant's sister and her family while the Defendant secures housing. The Defendant plans to purchase a house.

"Both parties have a high school education and have similar earning capacities. The Court finds that the parties' disposition to provide food, clothing, medical care and other material needs to be equal.

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

"Justin lived with the parties from birth until the time of the divorce. It has now been almost two years since the divorce. During this time, with the exception of visitation periods, Justin has lived with his father. The pre-school years are very important in forming a well-rounded individual.

"The Defendant has an advantage on the issue of maintaining continuity as Justin has been with him the past two years. Another advantage the Defendant has is that he has a larger support group for Justin. His sister and her family as well as Justin's paternal grandparents live in Jamestown. The Defendant's brother and his family live north of Valley City, North Dakota. Justin has spent his life with these people and there is a strong argument that can be made that this love and support should continue.

"Through no fault of the Plaintiff, her support group is smaller. She has a sister near by and, of course, her husband, David. Though little mention was made of this at the hearing, the Plaintiff's parents do live in the Hope area. On the maintaining continuity issue, the scales tip in favor of the Defendant.

"On the issue of stable and satisfactory environment, the Plaintiff may have an edge due to her remarriage and a house in which to live. It should be kept in mind that any disadvantage the Defendant may have on this issue is temporary as he is caught at a time when he is changing residences. The Court sees this as temporary in nature.

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

"The permanence of the Defendant and his son as a family unit seems to be secure. As the Defendant is single, the issue of divorce affecting permanence is not an issue.

"The Plaintiff is thirty and into her third marriage. The Court certainly hopes that this is the marriage that will last. When one considers the approximate fifty per cent marital failure rate with the Plaintiff's past marital record, the future is not as optimistic as it could be.

"Justin has had the advantage of being an only child and the attention that goes with it. Should he stay with his father, this attention and continuity would continue.

"The argument can be made that it would be better for him to live with more children. It seems that any advantages would be outweighed by the disadvantages were he to live with two step-brothers and a new half-brother or sister. Stepping in and being a five year old step-brother to nine and eight year old natural brothers could be traumatic to say the least. Even more traumatic would be a breakup of the Plaintiff's marriage. Such an exposure to this experience would have a very negative impact on Justin.

"6. The moral fitness of the parents.

"This issue seems to be a toss-up between the two parties. They are representative of the younger generation today. Marriage is not taken seriously. Unlawful cohabitation is the norm. By today's standards, one must conclude that they fall in the average range of moral fitness. To their credit, both parties are getting older and each has taken some steps through counseling to improve themselves.

"7. The mental and physical health of the parents.

"The parties are both in good physical health. Both parties have undergone psychological and chemical dependency evaluations.

"The Plaintiff's psychological evaluation revealed a normally adjusted suitable parent. Mr. Ludwig's evaluation revealed the same results. The Plaintiff's chemical dependency evaluation revealed no chemical dependency.

"The Dependant's [sic] psychological evaluation revealed an 'individual showing some mild depression symptomatology which may be related to the stresses of a...