Miller v. Miller, 9871
Decision Date | 12 May 1981 |
Docket Number | No. 9871,9871 |
Citation | 305 N.W.2d 666 |
Parties | Gary Eugene MILLER, Plaintiff and Appellee, v. Charlene LaVon MILLER, Defendant and Appellant. Civ. |
Court | North Dakota Supreme Court |
Georgia M. Pope, of Pope & Stites, Jamestown, for plaintiff and appellee.
Larry F. Nordick, of Legal Assistance of North Dakota, Fargo, for defendant and appellant.
Charlene Miller appealed from an amended judgment of the district court of Stutsman County entered on August 15, 1980. That amended judgment changed custody of Christa Miller from Charlene to Gary Miller. We reverse.
Charlene and Gary Miller were divorced in Minnesota on November 11, 1976. During the course of their marriage they had three children: Michael, born December 11, 1963; Catherine, born June 28, 1966; and Christa, born April 18, 1970. Gary was awarded custody of Michael, and Charlene was given custody of the two girls. Gary and Michael stayed in Minnesota, while Charlene and the girls moved to Jamestown, North Dakota. Within a short time after the divorce Gary encountered rather serious difficulties in his attempts to exercise his visitation privileges with the girls. As a result, he moved the Minnesota court which had granted the divorce to reduce his child-support obligations. On July 8, 1977, the court found that the source of Gary's visitation problems was Charlene's uncooperativeness and that such conduct by Charlene was cause for reduction in the child-support payments. An order to that effect was entered.
Three days after the Minnesota court granted Gary's motion for reduction of child-support payments, Gary filed an action in the district court of Stutsman County seeking a change in custody regarding Christa and Catherine. With one minor exception, the trial court adopted the identical findings of fact spelled out by the Minnesota court in the reduction-of-child-support action. The trial court denied Gary's request that he be granted custody of Christa and Catherine and instead set forth detailed visitation rights regarding Christa and ordered Charlene to cooperate with Gary's attempts to exercise those rights. 1
On October 1, 1979, Gary again filed a motion with the district court of Stutsman County requesting that he be granted custody of the children. In his affidavit accompanying that motion Gary incorporated by reference the affidavit which he had submitted in support of his 1977 motion for change of custody. Both affidavits centered on specific events which he claimed demonstrated the frustration of his visitation rights and which he alleged served as a reason for the granting of custody change. Charlene's return to Gary's motion, along with her supporting affidavits, generally denied that the events which Gary claimed to have occurred had taken place. Neither Charlene's return nor the affidavits made mention of the events and allegations appearing in the affidavit supporting Gary's 1977 motion for custody change. On November 7, 1979, following a hearing which had been held on October 31, 1979, regarding Gary's motion, the trial court issued the following pertinent findings of fact, conclusions of law, and order:
On July 25, 1980, Charlene filed a document entitled "Defendant's Motion To Review Court Order." In that motion Charlene requested the trial court to "amend the trial custody Order" of November 7, 1979, and to "grant her full custody" of Christa, subject to reasonable visitation rights held by Gary. Following a hearing on August 4, 1980, regarding Charlene's motion, the trial court issued the following pertinent findings of fact and conclusions of law:
To continue reading
Request your trial-
In re Donna W.
...531, 188 S.E.2d 647, cert. denied, 281 N.C. 622, 190 S.E.2d 465 (1972) (error of law on the face of the record); Miller v. Miller, 305 N.W.2d 666, 671 (N.D.1981) (clearly erroneous; definite and firm conviction that mistake has been made); Rice v. Rice, 603 P.2d 1125, 1128 (Okl.1979) (abuse......
-
Donna W., In re
...531, 188 S.E.2d 647, cert. denied, 281 N.C. 622, 190 S.E.2d 465 (1972) (error of law on the face of the record); Miller v. Miller, 305 N.W.2d 666, 671 (N.D.1981) (clearly erroneous; definite and firm conviction that a mistake has been made); Rice v. Rice, 603 P.2d 1125, 1128 (Okl.1979) (abu......
-
Lechler v. Lechler
...Wolt, 2010 ND 26, ¶ 19, 778 N.W.2d 786 (no objections mentioned); Klose v. Klose, 524 N.W.2d 94, 96 (N.D.1994) (same); Miller v. Miller, 305 N.W.2d 666, 670 (N.D.1981) Bergstrom v. Bergstrom, 296 N.W.2d 490, 493 (N.D.1980) (same); Starke v. Starke, 458 N.W.2d 758, 761 (N.D.Ct.App.1990) (sam......
-
Freed v. Freed
...trial court on appeal unless they are clearly erroneous. Rule 52(a), NDRCivP; Davis v. Davis, 448 N.W.2d 619 (N.D.1989); Miller v. Miller, 305 N.W.2d 666 (N.D.1981). A trial court's findings of fact are presumptively correct, Branson v. Branson, 411 N.W.2d 395 (N.D.1987), and are clearly er......