Mansukhani v. Pailing, 10088

• Decision Date: 21 April 1982
• Docket Number: No. 10088,10088
• Citation: 318 N.W.2d 748
• Parties: Jenny MANSUKHANI, Plaintiff and Appellee, v. Donald and Jean PAILING, Defendants and Appellants, Sandy Pailing, Jane Doe, and Richard Roe, Defendants. Civ.
• Court: North Dakota Supreme Court

Page 748

318 N.W.2d 748

Jenny MANSUKHANI, Plaintiff and Appellee, v. Donald and Jean PAILING, Defendants and Appellants Sandy Pailing, Jane Doe, and Richard Roe, Defendants.

Civ. No. 10088.

Supreme Court of North Dakota.

April 21, 1982.

Mills & Moore, Bismarck, for plaintiff and appellee; argued by Sherry Mills Moore, Bismarck.

Chapman & Chapman, Bismarck, for defendants and appellants; argued by Daniel J. Chapman, Bismarck.

ERICKSTAD, Chief Justice.

This is an appeal by Donald and Jean Pailing, the grandparents of Jennifer and Allen Pailing, from a judgment of the District Court of Burleigh County, dated September 18, 1981, placing custody of Jennifer and Allen with their mother, Jenny Mansukhani. We reverse and remand with instructions to the district court for entry of judgment placing custody of Jennifer and Allen with Donald and Jean and awarding visitations to Jenny with the children in accordance with the restrictions and limitations set forth in this opinion.

James Pailing, Donald and Jean's son, married Jenny on June 7, 1974. At that time Jenny, who was 18 years old, had just been graduated from Drake High School, and James, who was approximately five years older than Jenny, was living in Butte. James and Jenny moved to Minot where they lived until they separated in January, 1976. By their marriage James and Jenny had a daughter, Jennifer, born November 12, 1974, and a son, Allen, born August 1, 1976.

In its findings the district court states, "The marriage was always in trouble." The court concluded that James was not a good provider; exemplified by the fact that during the one and one-half years James and Jenny lived together James held ten jobs none at which he remained employed longer than one and one-half months. The court also determined that James was a heavy drinker of alcoholic beverages and that he would be absent from the home for periods, sometimes for as long as one week, without explanation. While James and Jenny were married and residing together, Donald and Jean assisted them by bringing groceries and by purchasing a used mobile home for their use.

When James and Jenny separated during January, 1976, Jenny moved with Jennifer to Drake where Jenny's parents resided. During August of that year, Allen was born and Jenny was then faced with the burdensome task of caring for two young children. During December, 1976, Jenny asked her mother to transport Jennifer and Allen to reside with James, who was at that time unemployed and living with Donald and Jean at Butte. Jenny testified that she made that decision because she was unemployed and had no money. She also testified that she knew Donald and Jean, with whom James was residing, would be able to provide the children with food, clothes, and Christmas gifts. The district court found that Jenny intended to take Jennifer and Allen back upon securing a good job which would allow her to support herself and the children.

During the early part of 1977, James and Jenny lived together in Minot for about six weeks in an attempt to reconcile their marriage. Jenny testified that she went back to James because she felt she had made a mistake in leaving the children with him and she wanted her children back. Jenny testified that during this reconciliation period James promised her he would take the children from their grandparents, who were caring for them at their home in Butte, and bring them to Minot. He never did, and there is testimony that Donald and Jean advised him against taking the children to Minot because they did not believe James and Jenny had adequate facilities there to care for the children.

James and Jenny separated again during March, 1977, and were divorced during October of that year. Based upon a settlement agreement between James and Jenny, the divorce decree provided that James would have custody of Jennifer and Allen with reasonable visitation rights for Jenny including the right to take the children for overnight and weekend visitations.

Subsequent to the divorce James and the two children continued to live with Donald, Jean, and the children's aunt, Sandy Pailing. James died as a result of an automobile accident on July 22, 1980, and it is undisputed that prior to his death he provided relatively minimal care and support for the children. There is also no dispute that from December, 1976, to the present time Jennifer and Allen have resided in their grandparents' home and from them have received their primary care and support. In its findings the district court concluded that even though James had legal custody pursuant to the divorce decree, "the feeding, dressing and caring of the children were primarily with the Defendant's [Donald and Jean]. James contributed very little financially toward the support of the children." During 1980, Donald and Jean sold the grocery store and cafe they operated in Butte and moved to Bismarck where Donald accepted a position as manager of the VFW Club. Jean works in the gaming room of the club about two days per week.

Jenny was remarried on December 12, 1977, to James Mansukhani. They lived in Surrey, which is located approximately six miles from Minot where James is employed as an oven operator with Sweetheart Bakery and where Jenny has been employed as a barmaid, hostess, and waitress in various establishments. They have two daughters as a result of their marriage: Maya, born January 7, 1979, and Sharmila, born April 5, 1981. Although the district court found that Jenny on one occasion had sexual relations with a male acquaintance during 1980 while married to James Mansukhani, the court concluded that "this isolated single transgression has not broken or affected her present marriage relationship." Nevertheless, there was testimony by more than one witness that Jenny had expressed a desire to get a divorce from James Mansukhani, that she had stayed in two different apartments in Minot at various times during her second marriage, and that she, on more than one occasion, had been kissing and caressing or had been otherwise intimate with men other than her husband.

Jenny testified that Donald and Jean did not cooperate with her attempts to visit the children and that they were instrumental in preventing her from exercising overnight visitations with the children. To the contrary, Donald and Jean testified that they did not attempt to prevent Jenny's visitations with the children, but that Jenny was not allowed to take the children on overnight visitations on various occasions either because the children had been sick or because the children became upset, to the point of becoming hysterical, when the time came for them to leave with Jenny for the visitations.

The district court found that during the time the children have resided with Donald and Jean, Jenny has had approximately the following number of visitations with the children: one visit on Christmas Day in 1976 approximately two weeks after the children commenced living in the grandparents' home; ten visits in 1977; six visits in 1978; two visits in 1979; and a total of five visits in 1980 all of which occurred during the month of August. The district court concurred with Jenny's assertion that her visitations with the children became less frequent because each visit was emotional and upsetting to her and the children. The district court found that the tense atmosphere during Jenny's visits with the children created nervous anxieties for Jenny which her doctor advised her to avoid during her pregnancies with Maya and Sharmila because she already had experienced one miscarriage during her marriage to James Mansukhani. The district court also found that subsequent to August, 1980, during which time custody proceedings have been pending in the courts, Jenny has only been allowed visitations under limited conditions within the sole discretion of the grandparents.

Subsequent to James Pailing's death in July, 1980, Jenny requested Donald and Jean to return Jennifer and Allen to her. Donald and Jean refused Jenny's request, and Jenny then filed a petition for a writ of habeas corpus seeking custody of the children through the courts. The district court entered a judgment awarding Jenny custody of the children from which Donald and Jean appealed, and in Mansukhani v. Pailing, 300 N.W.2d 847 (N.D.1980), cert. den., --- U.S. ----, 102 S.Ct. 98, 70 L.Ed.2d 88 (1981), this Court vacated the judgment and remanded the case to the district court for an evidentiary hearing on the custody issue. The district court, another judge sitting, subsequent to the evidentiary hearing, entered a judgment awarding Jenny custody of the children from which Donald and Jean have filed this appeal.

This court has recognized that parents have a right to the custody and companionship of their children superior to that of any other person and that, although such right is not absolute, the courts are reluctant to remove a child from the parent's custody unless it is necessary to prevent serious detriment to the welfare of the child. Hust v. Hust, 295 N.W.2d 316 (N.D.1980); In Interest of M. M. C., 277 N.W.2d 281 (N.D.1979). In Hust, supra, this Court, recognizing that the determinative standard for awarding custody in a divorce action is "the best interests of the child", held that an award of custody to the grandparents rather than to one or both of the child's natural parents is clearly erroneous unless exceptional circumstances require that such a custody disposition be made in the best interests of the child.

In its memorandum opinion the district court, with regard to the test for arriving at a custody placement in this case, stated:

"They [Donald and Jean] contend that they need not show that the mother is unfit and overlook the ruling of the Supreme Court case requiring the balancing of the paramount rights of a biological parent with the best interests of the children. However most of the trial time was consumed in attempting to show the...