Porter v. Porter, 9470

• Decision Date: 08 January 1979
• Docket Number: No. 9470,9470
• Parties: Audrey E. PORTER, Plaintiff and Appellant, v. Thomas D. PORTER, Defendant and Appellee. Civ.
• Court: North Dakota Supreme Court

Page 235

274 N.W.2d 235

Audrey E. PORTER, Plaintiff and Appellant, v. Thomas D. PORTER, Defendant and Appellee.

Civ. No. 9470.

Supreme Court of North Dakota.

Jan. 8, 1979.

Kessler & Anderson, Grand Forks, for plaintiff and appellant; argued by Damon E. Anderson, Grand Forks.

Pearson & Christensen, Grand Forks, for defendant and appellee; argued by Douglas A. Christensen, Grand Forks.

SAND, Justice.

Audrey Porter (Audrey), plaintiff, appealed from a Judgment of the First Judicial District Court, Grand Forks, awarding custody of the parties' three minor children to the defendant, Thomas D. Porter (David), and granting the plaintiff $150 per month alimony for an 18-month period. Audrey also appealed from the district court's denial of her motion for a new trial, her motion to alter and amend judgment, and her motion for attorney's fees and costs on appeal.

Audrey and David were married on 26 October 1971. On 9 February 1977, Audrey filed a complaint alleging irreconcilable differences as grounds for a divorce from David. In addition to a divorce, she also sought custody of the parties' three children, support payments for the children, an equitable division of the parties' property, and attorney's fees and court costs. David's answer requested that in the event the divorce be granted he be given custody of the three children and not be required to pay alimony.

David is a captain in the United States Air Force and at the time the divorce complaint was filed, the couple resided on the Grand Forks Air Force Base. Although Audrey was not employed prior to filing for a divorce, she was engaged in a home-selling plan known as "Copper Craft" for a period of five years and did some volunteer work at an organization called "Family Services."

In accordance with an interim order of 14 February 1977, Audrey was allowed to remain in the parties' rented home and was given temporary custody of the three children. She and the three children moved from the home on the Air Force Base to an apartment in Grand Forks in May of 1977, where they remained until the date of trial. Also, in May of 1977 Audrey secured employment as a waitress/hostess working an evening shift averaging between four and five hours per night. During the hours Audrey worked at this job, the children were cared for in the home of a babysitter.

Following a five-day trial, the district court awarded custody of the three Porter children to David although the court found that either party would be a "fit and proper person to have custody." The district court stated as reasons for its award that because of the employment situation of the two parties, David was in a better position to provide for the support and maintenance of the children and would also be able to spend evenings with them, while Audrey would be unable to do either.

Audrey contended on appeal that the findings of the district court in support of these reasons were clearly erroneous and that the judgment should be reversed.

On 11 November 1977, Audrey moved the trial court to alter and amend judgment and on a subsequent date also moved for a new trial. Both motions were denied and Audrey filed a notice of appeal from the judgment and order denying these motions. Audrey also filed an application for an order directing David to pay costs and attorney fees incurred by her incident to this appeal, after which David filed cross-application for costs and attorney's fees on appeal. The district court denied both motions.

The issues on appeal in this case are:

(1) Are the findings of the trial court awarding the custody of the children to David and limiting alimony payments to Audrey clearly erroneous;

(2) Was the trial court's denial of Audrey's motion for a new trial and her motion to alter and amend judgment an abuse of discretion; and

(3) Was the trial court's denial of Audrey's application for attorney's fees and costs on appeal an abuse of discretion?

We first determine if the findings of the district court in support of the custody award of the parties' children to David and limiting alimony payments to Audrey are clearly erroneous.

The scope of review on this type action is summarized in Haugeberg v. Haugeberg, 258 N.W.2d 657, 659 (N.D.1977). We quote:

"The law in this area is quite clear and has been stated many times in the past by this court. The trial court's determination on matters of child support, alimony, and division of property are treated as findings of fact. Kostelecky v. Kostelecky, 251 N.W.2d 400 (N.D.1977); Larson v. Larson, 234 N.W.2d 861 (N.D.1975). Our scope of review on appeal of these findings is limited by Rule 52(a), N.D.R.Civ.P., and thus we will not set aside those findings unless they are clearly erroneous. A finding of fact is clearly erroneous when, although there is some evidence to support it, the reviewing court on the entire evidence is left with the definite and firm conviction that a mistake has been made. Kostelecky v. Kostelecky, supra; Rambel v. Rambel, 248 N.W.2d 856 (N.D.1977); In re Estate of Elmer, 210 N.W.2d 815 (N.D.1973)."

Audrey asserted that a number of the findings made by the trial court are not supported by the evidence and are thus clearly erroneous. Before we examine Audrey's contentions we point out that when substantial evidence adduced at the trial supports a finding of fact, it will not be found clearly erroneous and correspondingly the mere fact that evidence was presented contrary to a particular finding does not make it clearly erroneous. DeForest v. DeForest, 228 N.W.2d 919 (N.D.1975). The trial court is vested with a great amount of discretion in matters of custody and what is in the best interests of the children as well as the amount and duration of alimony payments. This court must give great weight to the findings made and the inferences drawn from the evidence by the trial court, giving due regard to the opportunity of the trial court to judge the credibility of the witnesses. Matson v. Matson, 226 N.W.2d 659 (N.D.1975).

Audrey first challenges a finding by the trial court that she

" . . . indicated a resolve to continue in her present employment as a night waitress/hostess at the Ramada Inn and continue with her 'Copper Craft' activities and does not at this time intend to go back to college and obtain a degree or to change her present employment or seek employment which would result in a higher income . . .."

Audrey contended that contrary to the trial court's finding, testimony clearly demonstrates she did not intend to continue her employment with either the Ramada Inn or the Copper Craft home-selling plan. Audrey testified she had discontinued her association with the Copper Craft home-selling plan and that she intended to leave her job as a waitress/hostess. She also testified she had secured part-time employment cleaning apartments for a local realty company and was in the process of starting to sell clothing through another home selling plan called "Beeline."

We agree the trial court erred in referring to "Copper Craft" as the home-selling plan with which Audrey intended to continue. The reference should have been to the "Beeline" selling program. The fact remains, however, that Audrey indicated her intention to continue at home-selling programs. The trial court's reference to "Copper Craft" rather than "Beeline," although error, was not reversible error under Rule 61, North Dakota Rules of Civil Procedure. Under Rule 61, NDRCivP, an error committed by the trial court must affect the substantial rights of a party to be grounds for reversal. Because the two home-selling programs appeared to be substantially similar in terms of the amount of time they would demand and the amount of income they could be expected to produce to assist in support of Audrey and her children, Audrey has failed to demonstrate that the court's erroneous reference to "Copper Craft" rather than "Beeline" in its findings substantially affected her rights as to justify a reversal of the judgment in this case.

Audrey's testimony on both direct and cross-examination showed the amount of income she could expect to earn from either cleaning apartments or selling clothing for the Beeline program was speculative, at best. Although Audrey stated she intended to leave her job as a waitress/hostess because the night shift she was currently working did not allow her to spend evenings with the children and the day shift ran into the afternoon, such that no one would be at home with the children when they returned from school, she also testified the job of cleaning apartments was on a trial basis and, that, If necessary, she would quit selling for Beeline and return to work as a waitress/hostess.

In view of Audrey's testimony that the job of cleaning apartments was part-time and on a trial basis and that she had suffered a revenue loss four of the five years she had worked on the home-selling plan of Copper Craft, the indication is that neither of her employment positions were financially secure. Although Audrey's employment with Beeline might be more profitable than her association with Copper Craft and her cleaning position might prove to be secure, the trial court was not required to accept such speculation and was justified in believing otherwise. Because Audrey stated she would return to her position as a waitress/hostess, if necessary, and because the income from her prospective employment appeared speculative, the finding of the trial court "that Audrey Porter has indicated a resolve to continue in her present employment as a night waitress/hostess at the Ramada Inn" was not clearly erroneous.

Audrey also contended the trial court's findings relative to her plans of furthering her education were clearly erroneous. Because the findings concerning Audrey's educational intentions are so closely related to the amount and duration of the alimony payments which were also challenged, we will discuss the two together.

The district court...