Miller v. Miller, 9871

Decision Date12 May 1981
Docket NumberNo. 9871,9871
Citation305 N.W.2d 666
PartiesGary Eugene MILLER, Plaintiff and Appellee, v. Charlene LaVon MILLER, Defendant and Appellant. Civ.
CourtNorth 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.

VANDE WALLE, Justice.

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:

"FINDINGS OF FACT

"3.

"That custody of Michael Douglas Miller was awarded to the Plaintiff and custody of Catherine LaVon Miller and Christa Louise Miller was awarded to the Defendant all subject to respective, reasonable right of visitation by each parent. Reasonable visitation rights were determined to be; 'That each party shall be allowed visitation of the respective minor children, one Saturday per month, one Sunday per month, on a following weekend, and on one full weekend per month. Each party shall be allowed right of visitation of the children on alternate holidays, and for a period of six weeks during the summer shall be allowed to have the children at their respective residence for the purpose of visitation.'

"4.

"That the Defendant has made no effort to exercise her visitation rights with Michael Douglas Miller since the decree was entered in 1976.

"5.

"That the Plaintiff has attempted to exercise his rights of visitation with Catherine and Christa. That his visitation rights have been substantially interfered with by the misconduct of the Defendant in that she has effectively prevented visitation with his minor daughters on numerous occasions many of which incidents are documented in previous proceedings in this court and the court in Minnesota. The most recent incident occurred in June of 1979, as it was established by the testimony that the Plaintiff wrote a letter to the Defendant in May of 1979 in an attempt to arrange visitation for his two month summer visitation with Christa. The Plaintiff in his letter set forth that he would arrive in Jamestown, North Dakota on June 23, 1979, for purposes of picking up his child, Christa. It was established by the testimony that the Defendant left Jamestown for the State of Colorado some several days prior to the 23rd of June with both minor children in her custody after having received the Plaintiff's letter request for visitation. It was further established that the Defendant did not notify the Plaintiff that she was leaving Jamestown and if she did attempt to notify him he received no such notification. The Defendant did not inform the Plaintiff of her whereabouts or that of the children. The Plaintiff learned of the Defendant's location only through the instigation of a reciprocal action for support by the Defendant against the Plaintiff.

"6.

"That the Plaintiff is now and has been current in his child support obligations with respect to his minor children.

"CONCLUSIONS OF LAW

"That the conduct of the Defendant has been such that the Plaintiff has been wrongfully and wholly deprived of his rights of visitation with the two minor children of the parties herein in the custody of the Defendant.

"ORDER

"IT IS NOW HEREBY ORDERED that the Plaintiff be awarded trial custody of the parties' minor child, Christa Louise Miller, for a period of one year to commence on November 1, 1979, subject to the following visitation rights in Defendant: That the Defendant shall be entitled to have Christa Louise Miller with her for six weeks during the summer months commencing June 15th to August 15th. That if Christa Louise Miller is desirous of spending the 1979 Christmas holidays with the Defendant, that she should be allowed to do so. In any event, the Christmas holidays will be alternated between the parties on a yearly basis. This court will review the trial custody of Christa Louise Miller upon motion of the Defendant at the end of the summer visitation 1980. In all other respects said judgment and decree shall remain entered."

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:

"FINDINGS OF FACT

"5.

"That the original custody order entered November 11, 1976, was modified by this Court's Order dated November 7, 1979, in that Plaintiff was awarded temporary custody of the parties' minor child, Christa Louise Miller, for a period of one year to commence November 1, 1979, subject to the following visitation rights in Defendant: that the Defendant shall be entitled to have Christa Louise Miller with her for six weeks during the summer months commencing June 15 to August 15. That if Christa Louise Miller is desirous of spending the 1979 Christmas holidays with the Defendant, that she be allowed to do so. In any event, the Christmas holidays will be alternated between the parties on a yearly basis. This Court will review the temporary custody of Christa Louise Miller upon motion of the Defendant at the end of the summer visitation 1980.

"6.

"That in preparation for hearing on the instant motion, home studies were conducted in both Mower County, Minnesota, and Stutsman County, North Dakota, copies of which reports were furnished to counsel for both parties and the Court having given due consideration to said reports in arriving at its decision.

"7.

"That the minor, Christa Louise Miller, was interviewed in Chambers by the Court and found to have reached the age of discretion and that said child expressed a preference to remain with her mother, Charlene LaVon Miller. The Court considered and weighed said preference before arriving at its decision.

"CONCLUSIONS OF LAW

"1.

"That the last year spent with the Plaintiff and his family in Austin, Minnesota, was beneficial to Christa and that it would be in her best interest to give full and permanent custody to Plaintiff, subject to reasonable visitation in the Defendant as follows:

"Plaintiff is hereby awarded the control and custody of Michael Douglas Miller and Christa (Louise) Miller, and Defendant is awarded custody and control of Catherine LaVon Miller, each subject to reasonable rights of visitation respectively. The two week Christmas vacation shall be divided between the parties with the parties alternating the week containing the Holy days of Christmas and Christmas Day each year. The parties shall also be entitled to a six week visitation with their non-custodial children during the summer months commencing June 15 to August 15.

"2.

"With respect to the parties' eldest daughter, Catherine LaVon Miller, visitation with Plaintiff shall not commence until satisfactory reports have been received by the Court with respect to her mental attitude concerning such visitations.

"3.

"Further, the parties shall have visitations with their children as deemed reasonable on prior notice whenever Plaintiff is in Jamestown, North Dakota, and whenever the Defendant is in Austin, Minnesota.

"4.

"In all other...

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