Mayo v. Mayo

Decision Date07 December 2000
Docket NumberNo. 20000032.,20000032.
Citation619 N.W.2d 631,2000 ND 204
PartiesPamela MAYO, now known as Pamela Banjac, Plaintiff and Appellant, v. William M. MAYO, Defendant and Appellee.
CourtNorth Dakota Supreme Court

Mark A. Meyer of Meyer Law Firm, Wahpeton, ND, for plaintiff and appellant.

Robert J. Schultz of Conmy, Feste, Hubbard, Corwin & Brust, Ltd., Fargo, ND, for defendant and appellee. Appearance by Scott M. Knudsvig, third-year law student.

NEUMANN, Justice.

[¶ 1] Pamela Mayo, now known as Pamela Banjac, appeals from a trial court amended judgment changing custody of the parties' three minor children from her to William M. Mayo. We hold the trial court's finding that there has been a substantial change of circumstances which requires, in the best interests of the children, a change of custody, is not clearly erroneous. We affirm.

I

[¶ 2] Pamela Banjac and William Mayo divorced in 1995. Banjac was awarded primary custody of their three children. Mayo was awarded reasonable visitation, which he exercised on a regular basis after the divorce. On March 4, 1999, Mayo moved for a change of custody.

[¶ 3] Before the evidentiary hearing, the parties agreed Dr. R.P. Ascano would perform a parental capacity psychological evaluation and would serve as a neutral expert witness regarding the custody modification issue. Dr. Ascano met with Banjac, Mayo, and each of the children.

[¶ 4] In his June 10, 1999, report, Dr. Ascano noted Banjac was suffering from fibromyalgia and migraine headaches, among other problems, and had symptoms of depression due to her chronic pain. He stated she lacked an adequate understanding of the children's developmental needs, but she was able to recognize and encourage the children's positive growth. Dr. Ascano reported the parties' oldest child and Banjac both told him Banjac had to lie down at least once a month while the oldest child would care for the two younger children. Dr. Ascano reported the oldest child said, "[S]ince their divorce, I've been watching [the youngest child], I'm kind of, technically, his second mom." Dr. Ascano conveyed a significant concern that Banjac's physical and psychological problems have resulted in the oldest child becoming destructively parentified, which refers to a child assuming adult responsibilities and acting as a care provider for younger siblings.

[¶ 5] In his report, Dr. Ascano addressed the statutory best interest factors and concluded both parents are equally bonded to the children and both parents have average parenting abilities. While the youngest child shows a greater affinity for his father, the two older children show no significant preference for either parent.

[¶ 6] Ultimately, Dr. Ascano offered the trial court alternative recommendations, depending upon whether the court granted Mayo's motion to change custody. Dr. Ascano recommended that if the court changed custody to Mayo, Mayo should undergo individual therapy to help him manage conflicts and stress and should participate in family parenting therapy. Alternatively, if the court decided physical custody should remain with Banjac, a guardian ad litem should be appointed to evaluate Banjac's ability to parent considering her chronic pain, and the children should become involved in step-family therapy followed by blended-family therapy to facilitate the adjustment of all the family members into one unit.

[¶ 7] At the June 28, 1999, evidentiary hearing, Dr. Ascano testified regarding his concern that the oldest child was beginning to show symptoms of parentification. He explained that parentification can result in children losing their childhood and having difficulty forming bonds with others in adulthood, as well as other psychological problems. He also testified the oldest child faced a substantial likelihood of significant psychological harm if Banjac remained the custodial parent. If custody were changed to Mayo, Dr. Ascano opined, the oldest child would not be subject to parentification and would not have to live with the anticipatory anxiety of caring for her siblings. Alternatively, Dr. Ascano testified that if Banjac retained custody, the parentification could be eliminated through counseling and by arranging for an available person to provide the children's care when Banjac was incapacitated. This would prevent the oldest child from taking on parenting duties when Banjac was incapacitated. However, Dr. Ascano cautioned that, unless a backup person is available at all times, any therapy designed to halt the parentification process would be completely ineffective. He testified the simplest way to alleviate the parentification problem would be to change custody because of the difficulty of ensuring a backup person would be available at all times. He concluded the custodial stability factor was outweighed by the problems the oldest child was facing. In his opinion, the change of custody determination was not a close call. Banjac had greater liability because of her health problems, and Mayo acknowledged his need to decrease the number of hours he works.

[¶ 8] On July 12, 1999, the trial court granted Mayo's motion in part and transferred physical custody of the children to Mayo on an interlocutory basis. The court allowed Banjac until July 16, 1999, to retain an adult caretaker for the children for the times she was incapacitated. The court also ordered both the caretaker and Banjac's husband, Dr. Borris Banjac, to submit to testing by Dr. Ascano. The court provided that if Banjac could demonstrate a plan, approved by Dr. Ascano, could be implemented to eliminate the parentification of the oldest child, she would retain custody.

[¶ 9] Banjac moved the court to allow her to present new evidence from a forensic psychologist retained at her expense to give the court a second opinion on the parentification issue. The court granted Banjac's motion. The August 16, 1999, hearing was canceled and rescheduled for December 16, 1999. The court continued the interlocutory order granting Mayo physical custody.

[¶ 10] Banjac retained Dr. Thomas E. Will. In an October 27, 1999, report, Dr. Will concluded that the oldest child was not parentified. In Dr. Will's opinion, if parentification did exist, he could not say with any degree of certainty which parent caused it. According to Dr. Will, under the circumstances, the appropriate remedy is therapy not changing custody.

[¶ 11] After receiving Dr. Will's report, Mayo retained his own psychologist, Dr. Stephen A. Timm. In his November 23, 1999, report, Dr. Timm stated ten of the thirteen statutory factors used in the best interest of the child analysis favored Mayo, while none favored Banjac. Dr. Timm agreed with Dr. Ascano that parentification of the oldest child had begun. Dr. Timm concluded the weight of the evidence strongly favored granting permanent physical custody to Mayo.

[¶ 12] At the December 16, 1999, hearing, Banjac, Mayo, Dr. Timm, Dr. Will, and Dr. Ascano each testified. The trial court concluded Mayo had rebutted the best interest factor of the children's custodial stability and had shown Banjac's inability to provide the care necessary for the children was a significant change of circumstances. The trial court also found changing custody to Mayo was necessary because of the risk of significant psychological damage to the children if Banjac retained custody. The trial court issued an order granting Mayo's motion to change custody. An amended judgment was issued accordingly.

[¶ 13] Banjac appeals, arguing the trial court clearly erred in granting Mayo's motion to change custody and abused its discretion by eliciting testimony.

II

[¶ 14] Banjac argues the trial court erred in granting Mayo's motion for change of custody.

Under N.D.C.C. § 14-09-06.6(6):

The court may modify a prior custody order after the two-year period following the date of entry of an order establishing custody if the court finds:

a. On the basis of facts that have arisen since the prior order or which were unknown to the court at the time of the prior order, a material change has occurred in the circumstances of the child or the parties; and

b. The modification is necessary to serve the best interest of the child.

The party seeking modification of a custody order bears the burden of showing a change is required. N.D.C.C. § 14-09-06.6(8). A trial court's findings on a motion to modify custody will not be set aside unless they are clearly erroneous. Anderson v. Resler, 618 N.W.2d 480, 2000 ND 183, ¶ 8. A finding of fact is clearly erroneous if it is induced by an erroneous view of the law, there is no evidence to support it, or the reviewing court is left with a definite and firm conviction a mistake has been made. Id. at ¶ 8.

[¶ 15] The court found there had been a material change in circumstances since the judgment establishing custody, and modification of custody was necessary to serve the children's best interests.

A

[¶ 16] A material change in circumstances occurs when new facts are presented that were unknown to the moving party at the time the decree was entered. In the Interest of N.C.C., 2000 ND 129, ¶ 18, 612 N.W.2d 561. Here, the trial court found:

William has shown, by a preponderance of the evidence, that there has been a significant change in circumstances since the divorce which adversely impacts the children. Specifically, because of the health/medical problems of Pamela occurring after the divorce, Pamela has been unable to consistently provide the minimum care necessary for the children such that [the oldest child] has begun the process of becoming parentified and [the second oldest child] will also likely become parentified. This parentification of [the oldest child] is causing and will cause in the future significant and substantial impairment of [the oldest child's] emotional health and development now and in the future. The same fate will likely befall [the second oldest child]. Pamela's
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