Moran v. Moran

• Court: North Dakota Supreme Court
• Writing for the Court: ILVEDSON; STRUTZ
• Citation: Moran v. Moran, 200 N.W.2d 263 (N.D. 1972)
• Decision Date: 09 June 1972
• Docket Number: No. 8804,8804
• Parties: Diane MORAN, Plaintiff and Respondent, v. Kenneth M. MORAN, Defendant and Appellant. Civ.

Page 263

200 N.W.2d 263

Diane MORAN, Plaintiff and Respondent, v. Kenneth M. MORAN, Defendant and Appellant.

Civ. No. 8804.

Supreme Court of North Dakota.

June 9, 1972.

As Modified Sept. 6, 1972.

Syllabus by the Court

1. In a divorce case it is generally the best policy to keep minor children within the jurisdiction of the court, but the welfare of the children should receive the paramount consideration and such policy should yield to the best interests of the children.

2. In awarding custody of a minor, if the child is of sufficient age to form an intelligent preference, the court may consider the child's preference in the determination of his custody.

3. Trial courts are vested with a great deal of discretion in the matter of awarding custody of a child, and their decisions ordinarily will be reversed only where there is an abuse of that discretion.

4. In determining the custody of children in a divorce action, the welfare and best interests of the children is the paramount consideration.

5. When a divorce is granted, the trial court has continuing jurisdiction with reference to custody, care, and education of minor children.

6. Issue or contention not raised or considered in lower court cannot be raised for the first time on appeal from judgment.

7. The Supreme Court on appeal cannot consider evidence not contained in the settled statement of the case.

8. Erroneous admission of evidence does not require reversal of judgment, unless error is prejudicial.

9. Specification of error not supported by written argument in brief is deemed abandoned.

Warren King, Minneapolis, Minn., and Kenneth M. Moran, Jamestown, for appellant.

Robert Vogel, Mandan, for respondent.

ILVEDSON, District Judge.

The plaintiff brought this action for divorce against her husband in September 1970 on the ground of extreme cruelty. The defendant denied the allegations of the complaint and asked that such action be dismissed. The Honorable Adam Gefreh, district judge, presided at the trial of the action in April 1971.

The plaintiff and the defendant were married in February 1955. Three children were born as the issue of this marriage. Their names and birth dates are: Kenneth, Jr., June 29, 1960; Timothy, July 10, 1961; and Danielle, October 15, 1962. At the time of the trial they were ten, nine, and eight years of age, respectively.

The court granted a divorce to the plaintiff, but determined that each parent was a fit and proper person to have the care, custody, and control of the children. The court provided for the custody of the children as follows:

'The plaintiff shall have the custody of the children during the school year, and the defendant shall have custody of the children during the summer vacation period, for one week during the fall migratory water fowl hunting season, and from the time school lets out for Easter vacation until school resumes after Easter Sunday. The custody at Christmas vacations shall be divided as follows: In alternate years, commencing with the Christmas vacation of 1971, the defendant shall have custody of the children during the Christmas vacation period, while in the other alternate years the plaintiff shall have custody of the children during the week in which Christmas Eve and Christmas Day fall, and the defendant shall have their custody during the remainder of the Christmas vacation.

'IT IS FURTHER ORDERED, ADJUDGED and DECREED, that each party shall allow the other reasonable visitation rights, and the party making the visitation shall give 24 hours notice of his or her intention to exercise such right, except in case of emergency. The summer vacation period, as that term is used herein, means the months of June, July and August.'

After the trial court had made its determination of custody, the parties entered into a stipulation covering property rights, alimony, and support of the children. The court adopted this stipulation and it was made a part of the judgment.

The defendant as appellant filed a demand for a trial de novo, which is set forth in his notice of appeal and is a part of the statement of the case. In addition, he filed several specifications of error. In his brief on appeal the defendant states that the specifications of error were filed only in the event the Supreme Court would not grant a trial de novo. The concern of the defendant in this regard stems from the repeal of the Newman Act by the 1971 North Dakota Legislature. The Newman Act provided for trial de novo in actions tried to the court without a jury. This repeal took effect July 1, 1971. We recently held, in Automobile Club Insurance Co. v. Hoffert, 195 N.W.2d 542, (N.D.1972), that where the appellant demanded a trial de novo and served and filed his notice of appeal and undertaking prior to July 1, 1971, such demand for trial de novo was timely made. In the case before us the notice of appeal and demand for trial de novo were served and filed prior to the effective date of repeal of the Newman Act.

On trial de novo this court is obliged try anew questions of fact in the entire case. Rohde v. Rohde, 154 N.W.2d 385 (N.D.1967). We have examined the evidence and find that the plaintiff was entitled to a divorce on the ground of extreme cruelty. We further determine that there was an equitable distribution of property and that the alimony and support payments provided for in the judgment are fair and adequate.

The only real issue argued on this appeal by the defendant is his claim that he should have been granted custody of his two sons. He acknowledges that it would be for the best interest of the daughter to remain with her mother. The defendant contends that the evidence is insufficient to support the judgment of the trial court in regard to the custody of the children and that the court abused its discretion in this matter. We will now review the evidence presented at the trial of this case.

It should be pointed out that before the trial commenced, counsel agreed that the plaintiff would limit her testimony pertaining to grounds for divorce. As the trial progressed, however, both sides presented testimony derogatory to the other to show that one or the other was more fit to have custody of the children.

Two women who faithfully performed household duties or baby-sitting services at the Moran home for many years testified on behalf of the plaintiff. Their testimony is highly complimentary to the plaintiff as to her deep concern for the welfare of the children. After the parties to this action had separated the defendant had spoken to each of these women about the possibility of one of them working for the defendant as a full-time housekeeper if the court should grant him custody, but both declined.

An important witness for the plaintiff was Mrs. Briedenbach. Mr. and Mrs. Breidenbach formerly lived in North Dakota but they moved to California several years ago where he is engaged in the practice of law. The Morans and the Breidenbachs were very close friends. The Morans made several visits to the Breidenbachs in California, as guests in their home, and the Breidenbachs made return visits to North Dakota. After the separation of the Morans, the defendant visited the Breidenbachs in September 1970, staying at their home for a week. In addition to visits, the Morans and the Breidenbachs telephoned each other often. The defendant continued these conversations by telephone long after the separation. Mrs. Breidenbach had nothing but praise for the plaintiff as a mother to the children. Her testimony was critical of the defendant, of his drinking to excess and of his conduct toward the plaintiff when drinking. She expressed the opinion, however, that both of the Morans had genuine love for the children. It is evident that the defendant was disappointed that Mrs. Breidenbach testified on behalf of his wife. In January 1970 he told Mrs. Breidenbach be did not think the marriage would last and added, 'But one thing I've got to say is that she is an excellent mother.'

The only witnesses presented by Mr. Moran in regard to the suitability of either as fit parents for the custody of the children were his parents and an uncle.

His mother told of the defendant's interest in his children and stated that he had spent much time with them. She acknowledged that defendant did have a drinking problem prior to the commencement of the divorce action. She stated that the plaintiff had been a good mother to the children. The defendant's father testified to the very fine relationship between his son and the children. These grandparents offered to care for the children full time until a suitable housekeeper could be found, in the event the trial court granted custody to the defendant. The mother of the defendant stated that they spend their summers at their home at a Minnesota lake. She usually goes to New England in the fall and to Florida in the winter. At the time of the trial she was contemplating a trip to Australia in the late summer of 1971. She stated that she was willing to relinquish these vacation plans and trips to care for the children.

Mr. McElroy, uncle of the defendant, told of the devotion of the defendant to the children. He acknowledged that the plaintiff had done a 'modestly' good job of running the house and caring for the children.

The plaintiff testified as to her future plans if a divorce were granted. She desired to return to college to secure a master's degree in art history and then continue on toward a doctorate so that she would be able to earn her own living. She desired to teach art history at the college level. At the time of the trial she was considering four colleges which had the authority to grant these degrees in art history: University of Massachusetts at Amherst, Massachusetts; University of Iowa at Iowa City, Iowa; University of North Carolina at Chapel Hill, North Carolina; and the University of Virginia at Charlottesville, Virginia. She had been awarded a Danforth fellowship...