Matson v. Matson

• Decision Date: 28 February 1975
• Docket Number: No. 9031,9031
• Citation: 226 N.W.2d 659
• Parties: Nancy Lea MATSON, Plaintiff-Appellant, v. Donald Ellsworth MATSON, Defendant-Appellee. Civ.
• Court: North Dakota Supreme Court

Page 659

226 N.W.2d 659

Nancy Lea MATSON, Plaintiff-Appellant, v. Donald Ellsworth MATSON, Defendant-Appellee.

Civ. No. 9031.

Supreme Court of North Dakota.

Feb. 28, 1975.

Syllabus by the Court

1. A finding of fact relating to the welfare and best interest of children in a custody dispute is within the purview of the 'clearly erroneous' rule (Rule 52(a), N.D.R.Civ.P.).

2. For reasons stated in the opinion it is held that the trial court's findings are not clearly erroneous.

3. For reasons stated in the opinion it is held that the findings of fact support the conclusions of law and the order for judgment and, accordingly, the judgment.

4. When an action is tried by a court without a jury, all evidence which is not clearly inadmissible should ordinarily be admitted, and unless all of the competent

evidence is insufficient to support the judgment or unless it affirmatively appears that the incompetent evidence induced the court to make an essential finding which would not otherwise have been made, the judgment will not be reversed.

Daniel J. Chapman, Bismarck, for plaintiff-appellant on appeal.

Patrick S. O'Neil, Mandan, for defendant-appellee.

PEDERSON, Judge.

CASE SUMMARY

This is an appeal by the plaintiff, Nancy Lea Matson, from a judgment of the district court of Morton County granting Nancy a divorce from the defendant, Donald Ellsworth Matson. The judgment awarded the care, custody and control of Michael Duane Matson and Mathew John Matson, the minor sons of the parties, to Donald. It is from this portion of the judgment awarding custody of the children that Nancy appeals.

Judgment affirmed.

FACTS

The Matsons were married at Webster, South Dakota, on July 15, 1966, and made their home in Fargo until 1970 when they moved to the Bismarck-Mandan area. The Matsons have two sons, Michael Duane, born February 22, 1969, and Mathew John, born March 1, 1971. Donald was transferred to Bismarck by Northwestern Bell Telephone, for which he was still working at the time of the divorce.

The Matsons have a long history of marital problems. It is alleged that these problems became more intense when Donald reached the age of 21 and began to spend time in bars. The marriage was plagued by both personal and financial problems. The problems continued to increase and, in January of 1973, the Matsons separated with Donald moving out of the family home. On January 22, 1973, Nancy brought an action for divorce on the ground of irreconcilable differences. On February 23, 1973, the district court granted an order awarding custody of the minor children and temporary alimony and support of $150 per month to Nancy. In addition, Donald was to maintain the payments and rents due on the family mobile home. Although Donald had provided some financial support during January and February, he did not make any payments in March and did not make full payments in April. During this time Nancy was receiving welfare assistance. Subsequent to a hearing held on May 7, 1973, Donald was found to be in contempt of court for not fulfilling his court-ordered duties. Donald began making his payments on May 11, 1973, and continued to do so until July 6, 1973.

On July 11, 1973, the police went to the Matson home and found Michael home alone. Although the record is not completely clear on this point, it appears that Nancy may have been charged with child neglect as a result of this incident; however, there is no record of a disposition of such charge, if it was made. Later the same evening Nancy telephoned Donald to tell him that if he could do a better job of caring for the children he could come and get them. Donald then took custody of the children until August 16, 1973. During this period the children stayed with Donald's sister at Canby, Minnesota, for two weeks while Donald and his girl friend vacationed at Yellowstone Park.

Also during this period of time, creditors forced Nancy to move out of the mobile home.

After regaining custody, early in October of 1973 Nancy was hospitalized and left the children with friends. Upon realizing that Mathew was not being properly cared for, Nancy asked the Morton County Social Service supervisor for assistance. He then asked Donald to take the children but promised Nancy that they would be returned to her when she was able to care for Prior to Nancy's hospitalization, the district court had ordered that the Morton County Social Service supervisor make a home study with respect to the care, custody and control of the Matson children. This study was not made until after Nancy was released from the hospital. The home study was conducted by Michael J. Beckler, the Social Service supervisor for Morton County. After meeting with Nancy seven times and with Donald five times, Mr. Beckler suggested that the custody of the children should be, at least temporarily, awarded to Donald. Mr. Beckler's decision was based primarily on the premise that Donald could provide the most stable home atmosphere for the children. At the request of the Social Service supervisor, the Matsons were also interviewed by Dr. Myron W. Burger, a clinical psychologist. Dr. Burger also concluded that Donald was best able to care for the children.

them. As of the time of trial the children had remained in Donald's custody.

At the request of Nancy's counsel, Miss Becky Alm, a youth counselor for the Juvenile Court, interviewed Nancy and Donald. Miss Alm interviewed each of the Matsons for less than one hour and recommended that either party could adequately care for the children.

None of the home studies or interviews resulted in recommendations specifically worded in the language that the best interests of the children would be served by the suggested custody disposition.

Nancy has a history of emotional problems. At the age of fifteen, she took an overdose of Excedrin because she could not cope with her unstable environment and home life. At about this same time she first sought psychiatric help. In the summer of 1971, while she was going to school in Wahpeton, Nancy was given antidepressants for her nervous condition. In May of 1972, Nancy suffered a nervous breakdown and was hospitalized for almost one month. After this, the Matsons received marriage counseling at the Area Social Service Center. Nancy was again hospitalized in October of 1973.

Nancy's employment record reveals instability and inability to maintain adequate employment. Since moving to Mandan in 1970, Nancy has held several jobs. Until June of 1971 she worked as a secretary and switchboard operator at United Tribes. During the fall of 1971, she went to a nurse's training program at he Wahpeton School of Science. Upon her return from school, Nancy worked for a period of time at the Bergstrom Supply in Bismarck. Nancy has also worked as a cocktail waitress in Bismarck and Mandan. For a period of time in 1973, Nancy was employed at the Quain and Ramstad Clinic in Bismarck.

Although Donald has had financial problems throughout the course of the marriage, it appears that many of these problems were the result of expenditures by both of the Matsons. Nancy contends that Donald has a drinking problem but he has maintained continuous employment with Northwestern Bell Telephone for several years.

During the course of their marriage, the Matsons have both cultivated extra-marital relationships. The Matsons even went so far as to come to an agreement that such activity would be condoned. After Donald moved out of the family home, several men were known to have spent the night with Nancy. One of these men lived with Nancy during the summer of 1973. While it is not entirely clear in the record, it is apparent that Donald has also spent time with several other women.

ISSUES

I. The primary issue before us is a determination of whether, in light of these facts, the finding of the district court awarding custody of the minor children to Donald was clearly erroneous.

II. Counsel for Nancy raises, through specifications of error, a question relating to admissibility of evidence.

DECISION

The scope of our review in this case is limited by Rule 52(a) of the North Dakota Rules of Civil Procedure, which provides in pertinent part:

'In all actions tried upon the facts without a jury or with an advisory jury, the court shall find the facts specially and state separately its conclusions of law thereon and direct the entry of the appropriate judgment; * * * Findings of fact shall not be set aside unless clearly erroneous, and due regard shall be given to the opportunity of the trial court to judge of the credibility of the witnesses.' (Emphasis added.)

I.

In applying Rule 52(a), N.D.R.Civ.P., to the instant case, we must first determine if the finding complained of is a finding of fact and subject to the clearly erroneous test. In Ferguson v. Ferguson, 202 N.W.2d 760, 761 (N.D.1972), at syllabus 3, this court held:

'Findings that a party to a divorce action has committed adultery, That the best interests of the children of the parties to a divorce action would be served by awarding custody of the children to one party as opposed to the other, and that a particular division of property between the parties to a divorce action is equitable, are appropriately dealt with on appeal as findings of fact. Consequently, a review of these findings is limited to a determination of whether or not they are 'clearly erroneous' within the purview of Rule 52(a), N.D.R.Civ.P.' (Emphasis added.)

Although this approach has been subjected to criticism, this court has recently reaffirmed the Ferguson rationale in Silseth v. Levang, 214 N.W.2d 361 (N.D.1974), and again in Jordana v. Corley, 220 N.W.2d 515 (N.D.1974). A finding of fact relating to custody of minor children is within the purview of the 'clearly erroneous' rule (Rule 52(a), N.D.R.Civ.P.).

This court has repeatedly held that the welfare and best interests of minor children is the paramount consideration in determining the custody of...