Odegard v. Odegard

• Decision Date: 26 October 1977
• Docket Number: No. 9349,9349
• Parties: Dale A. ODEGARD, Plaintiff and Appellee, v. Vickie Ann ODEGARD, Defendant and Appellant. Civ.
• Court: North Dakota Supreme Court

Page 484

259 N.W.2d 484

Dale A. ODEGARD, Plaintiff and Appellee, v. Vickie Ann ODEGARD, Defendant and Appellant.

Civ. No. 9349.

Supreme Court of North Dakota.

Oct. 26, 1977.

Kathryn L. Dietz, Wahpeton, for plaintiff and appellee; argued by Gary D. Miller, senior law student, Grand Forks.

P. W. Lanier, Jr., of Lanier, Knox & Olson, Fargo, for defendant and appellant.

VOGEL, Justice.

The defendant, Vickie Odegard, appeals from a judgment of the district court of Sargent County granting a divorce to both the plaintiff, Dale Odegard, and the defendant, on the ground of irreconcilable differences. On appeal, the only issue is whether or not the trial court's grant of custody of the son of the parties, Justin, to the husband and the husband's parents is clearly erroneous.

The parties were married in 1971, the son was born in 1973, and the family lived together until late July of 1976, when the mother took the child to Fargo, where she searched for a job and an apartment. When the search proved more difficult than anticipated, she left the child with the father, who had moved in with his parents, and returned to Fargo to continue her search. There is a disagreement as to who had physical custody of Justin at various times thereafter. Apparently he was moved back and forth. On one occasion he seemed ill, and the paternal grandparents refused to let the mother take him back to Fargo.

The father instituted divorce proceedings and, pursuant to an order to show cause, custody was placed with his parents, with whom Justin had been living since approximately December 14, 1976.

At both the hearing on the order to show cause and at the trial, there was testimony regarding the living conditions in the home of the parties. During the course of the marriage, each party often spent evenings away from home, he usually in bars or bowling alleys and she driving around with girlfriends. As a result, Justin usually spent his evenings in the company of babysitters. Several of the babysitters testified that the house often was a mess, the baby's room and bed in disorder, and that they were allowed to drink beer and have guests as an incentive to babysit.

During the time the parties lived together, the father's participation in caring for the child was insubstantial.

His father and mother, aged 64 and 58, live in a five-bedroom home, only three bedrooms of which were in use due to repairs being made in the others. Three of the plaintiff's brothers also live in the house. The grandparents testified that they are in good health and that it was "okay" to have Justin in their home. Since Justin has been living with them, he has participated to some extent in feeding the chickens and other farm chores and in some activities with his father.

It is fair to say that the conduct of both parents has improved since the court intervention began.

In his memorandum opinion the trial judge found that the best interest of the child would be served by granting custody jointly to the father and the grandparents, rather than to the mother. ¹ He pointed to her absence from home for many evenings without explanation or good cause, her inducements to teenage babysitters with promises of beer and a place to meet friends, her failure to keep Justin's bedroom and the home clean, and said that her general lifestyle indicated that she was not ready to settle down and assume responsibility as a parent. Although the court did not go into detail as to the father, it seems apparent that the court also concluded that granting custody to the father alone would not be in the best interest of the child.

The mother asserts that the findings are clearly erroneous, that it is unfair to take custody of the child from her merely because she was a poor housekeeper, and that it was improper to give the custody to "strangers," the grandparents. She also asserts that the grandparents are too old to raise a pre-school child, and that the "tender years" doctrine is being ignored.

Ever since Ferguson v. Ferguson, 202 N.W.2d 760 (N.D.1972), this court has treated the finding that the best interest of the child requires custody in one parent or the other as a finding of fact which we will not reverse unless clearly erroneous. Rule 52(a), N.D.R.Civ.P.; Silseth v. Levang, 214 N.W.2d 361 (N.D.1974). We have also held frequently that custody, once granted, should not be changed for light or transient reasons, since children should not be bandied about, subject as they are to psychological damage in case of frequent changes of custody. See, generally, Filler v. Filler, 219 N.W.2d 96 (N.D.1974), majority and concurring opinions; Silseth v. Levang, supra.

We have recognized that temporary-custody orders have a tendency to become permanent-custody orders, partly because of the reluctance of the courts to make changes in custody for the reason stated. Kostelecky v. Kostelecky, 251 N.W.2d 400 (N.D.1977).

The present case resembles in many ways Silseth v. Levang, supra. In that case, as in this one, neither parent was found to be unfit and custody of a child of tender years was involved. The award was ultimately given to the father, who lived with his parents. That case differed from the present one in that both parties had remarried, and a statute was in existence giving preference to the mother where the child in question was of "tender years." Sec. 30-10-06, N.D.C.C.

That statute has now been repealed. The repeal was included in Chapter 257, Session Laws of 1973, North Dakota's version of the Uniform Probate Code, which contains no language equivalent to the former Section 30-10-06. See Article V, Uniform Probate Code, Chapters 30.1-26 and 30.1-27, N.D.C.C.

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