Olson v. Olson, 10751

• Decision Date: 28 January 1985
• Docket Number: No. 10751,10751
• Citation: 361 N.W.2d 249
• Parties: Myrna R. OLSON, Plaintiff and Appellant, v. Richard W. OLSON, Defendant and Appellee. Civ.
• Court: North Dakota Supreme Court

Page 249

361 N.W.2d 249

Myrna R. OLSON, Plaintiff and Appellant, v. Richard W. OLSON, Defendant and Appellee.

Civ. No. 10751.

Supreme Court of North Dakota.

Jan. 28, 1985.

Mack, Moosbrugger, Ohlsen & Dvorak, Grand Forks, for plaintiff and appellant; argued by Shirley A. Dvorak, Grand Forks.

Bruce E. Bohlman, Grand Forks, for defendant and appellee.

ERICKSTAD, Chief Justice.

Myrna R. Olson has appealed from the Amended Judgment entered by the District Court of Cass County on May 31, 1984, whereby the court modified the custody arrangement provided in an original divorce decree. We affirm.

Myrna, a professor at the University of North Dakota, and Richard, an attorney, have a 7-year-old son, Nathan. The custody arrangement under the original decree was based upon a custody settlement agreement between Myrna and Richard.

The original decree contained lengthy, detailed provisions relating to custody, visitation, and other related matters. It provided that Richard and Myrna would have joint legal and physical custody of Nathan who was to reside with Richard on Tuesdays and Wednesdays and with Myrna on Sundays, Mondays, and Thursdays; the weekends were split into two blocks of time during which Nathan's custody alternated between Myrna and Richard. The decree also provided that if either parent moved from Grand Forks Nathan would remain in the physical custody of the parent who continued to reside in Grand Forks.

Less than one year after entry of the original decree, Richard and Myrna recognized that the joint custody arrangement was not working well. Each sought sole legal and physical custody of Nathan, and Myrna also requested that the district court amend the decree to allow her to remove Nathan from North Dakota so that she could accept employment elsewhere.

A hearing was held, and the trial court subsequently amended the custody portion of the original decree. The amended judgment provided that Richard and Myrna were to continue their joint legal custody over Nathan with shared responsibility in making major decisions affecting Nathan. However, the trial court made Myrna the "principal physical custodian of Nathan, subject to the liberal and reasonable rights of [Richard] to have Nathan in his physical custody for sufficient times as will preserve and promote the parent-child relationship between Nathan and his father." Richard and Myrna apparently agree that the district court, by naming Myrna Nathan's principal physical custodian, intended that she have primary physical custody of Nathan and that she be primarily responsible for establishing reasonable visitations between Richard and Nathan.

The amended judgment retained the provision that if either parent moves from Grand Forks the parent continuing to reside in Grand Forks will have physical custody of Nathan.

In substance, Myrna has raised the following three issues on appeal:

1. Whether or not it would be in Nathan's best interest to terminate Richard and Myrna's joint legal custody over Nathan and to give Myrna sole legal and physical custody over Nathan with structured visitations for Richard;

2. Whether or not there is a presumption that the custodial parent's decision to move to another state is in the child's best interest; and

3. Whether or not the district court erred in refusing to amend the original decree to allow Myrna to move, with Nathan, from Grand Forks.

The trial court's determination regarding child custody is a finding of fact which will not be set aside on appeal unless it is clearly erroneous. Rule 52(a), N.D.R.Civ.P.; Larson v. Larson, 294 N.W.2d 616 (N.D.1980). When a trial court is requested to modify a custody award, it must determine whether or not there has been a significant change of circumstances which, in the best interests of the child, requires a change in custody. Miller v. Miller, 305 N.W.2d 666 (N.D.1981).

In this case, the trial court found that both Richard and Myrna had a "significant nurturing relationship" with Nathan that was important to each of them and that each was a "fit and proper parent to have custody of Nathan." Having made those findings and being cognizant of the agreement between Richard and Myrna that the failure of the original custody arrangement constituted a significant change of circumstances, the trial court determined that Richard and Myrna should continue to have joint legal custody over Nathan with responsibility to participate in all major decisions affecting him but that Myrna should be Nathan's principal physical custodian. Having carefully reviewed the entire record before us, we conclude that the trial court's determination was not clearly erroneous.

The trial court's modification of the original divorce decree constituted an obvious attempt to provide a workable custody arrangement which would allow Richard and Myrna to share important decisions affecting Nathan and to enjoy a substantial personal relationship with Nathan. We are compelled to add, however, that unless Richard and Myrna are determined to cooperate, with Nathan's best...