Ramstad v. Biewer, 980199

• Decision Date: 23 February 1999
• Docket Number: No. 980199,980199
• Citation: 589 N.W.2d 905
• Parties: Darrell RAMSTAD, Plaintiff and Appellant, v. Jacqueline BIEWER, Defendant and Appellee. Civil
• Court: North Dakota Supreme Court

Page 905

589 N.W.2d 905

1999 ND 23

Darrell RAMSTAD, Plaintiff and Appellant, v. Jacqueline BIEWER, Defendant and Appellee.

Civil No. 980199

Supreme Court of North Dakota.

Feb. 23, 1999.

Mark R. Fraase (argued) and Douglas W. Nesheim of Wegner, Fraase, Nordeng, Johnson & Ramstad, Fargo, N.D., for plaintiff and appellant.

Michelle L. Camilli (argued) and Timothy J. McLarnan of McLarnan, Hannaher, Vaa & Skatvold, Moorhead, Minn., for defendant and appellee.

NEUMANN, Justice.

¶1. Darrell Ramstad appeals from the district court's order and third amended judgment granting Jacqueline Biewer's motion to amend the divorce judgment allowing her custody of the parties' minor child. We affirm.

I

¶2. Darrell Ramstad and Jacqueline Biewer were divorced in 1984. The parties' relationship did not end with the divorce. In 1990, Biewer gave birth to a child. Ramstad is the father of the child.

¶3. In 1990, the district court entered judgment based on a stipulated agreement between Ramstad and Biewer. The judgment gave the parties joint legal custody of the child, with Ramstad receiving physical custody.

¶4. In 1997, Ramstad and Biewer both moved to amend the 1990 judgment. Ramstad moved the district court to require Biewer to pay child support and pay half of any uninsured medical expenses. Biewer moved the district court for a change of custody awarding her physical custody of the child.

¶5. In September 1997, the district court entered an amended judgment directing Biewer to pay $282 per month in child support and to share any uninsured medical expenses equally with Ramstad.

¶6. In February 1998, the district court entered a second amended judgment granting Biewer's motion for change of custody. The second amended judgment gave Biewer physical custody of the child, authorized the child to live in Minnesota, and gave reasonable visitation rights to Ramstad. The district court found:

3. Plaintiff was awarded custody by the Judgment of the Court on August 14, 1990. There has been a substantial change in circumstances since the time of the original custody order.

4. The plaintiff is an alcoholic who has been in treatment at least two times. At the time of the original custody order, plaintiff was sober. Plaintiff admitted in his testimony that he is currently drinking. This is a change in circumstance. [The child] is living in a home with an alcoholic parent who is drinking. She has no one there to intervene if plaintiff's drinking gets out of control. This environment could be detrimental to [the child] physically and mentally.

5. Plaintiff was convicted for Driving Under the Influence in June, 1996. He was again convicted for Driving Under the Influence in February, 1997. He did not seek treatment after either of these convictions, and stated no intention or desire to stip [sic] drinking. His two DUI convictions within eight months show that he does not have his drinking under control. This demonstrates that the change in circumstances has been significant.

6. In February, 1997, the plaintiff beat [the child] with a wire brush. The beating left severe bruises on [the child's] bottom, as testified to by several witnesses, and as shown by a photograph of [the child's] bottom after the beating. This event may not rise to the level of criminal child abuse, but it is relevant to the issue of custody.

¶7. The district court also found Ramstad's home to be an unstable environment, found Biewer provided most of the child's material needs, found Ramstad does not cook for the child and relies on others to provide meals, and found Ramstad had committed one incident of domestic violence against Biewer in the child's presence. The district court weighed the factors under N.D.C.C. § 14-09-06.2 and found it in the best interests of the child to be in the physical custody of Biewer.

¶8. Shortly after entry of the second amended judgment, Ramstad moved to amend the findings of fact, the conclusions of law, and the judgment, or alternatively moved for a new trial. Ramstad argued the district court failed to apply the proper legal test for a change of custody and failed to consider evidence, or alternatively argued there was insufficient evidence to support the findings and conclusions. Biewer also brought a motion asking the court to amend its findings of fact and conclusions of law.

¶9. In May 1998, the district court issued a memorandum opinion and order denying Ramstad's motion and granting Biewer's counter-motion to amend. The district court amended two findings of fact:

7. In March and April of 1997, [the child] was doing so poorly in first grade that her teacher, Deborah Garrett, recommended that [the child] repeat the grade. [The child] also regularly complained to Ms. Garrett about headaches.

19. There have been significant changes in circumstances since the prior custody decree including the Plaintiff's two convictions for DUI or APC, the Defendant's [sic] continued use of alcohol, ¹ the Plaintiff's beating of [the child] with a wire brush, and the incident of domestic violence by the Plaintiff against the Defendant. These changes have so adversely affected [the child] that she was doing poorly in school, regularly complained to her teacher of headaches, and asked to talk with the guidance counselor at school after telling Ms. Garrett about witnessing her father shove her mother up against the wall. In the opinion of this Court, [the child] has been so adversely affected by these significant changes that a modification in custody is necessary to foster her best interests.

The district court also amended the conclusions of law to provide:

Defendant has established, and the Court has found, that there has been a substantial change in circumstances since the original custody Order in 1990. These changes have so adversely affected [the child] that a change in custody is necessary to foster [the child's] best interests.

The district court entered a third amended judgment in conformance with this order. Ramstad appeals.

II

¶10. A district court's decision to modify custody is a finding of fact subject to the clearly erroneous standard of review. Gietzen v. Gietzen, 1998 ND 70, p 8, 575 N.W.2d 924; Rule 52(a), N.D.R.Civ.P. A finding of fact is clearly erroneous only when it is induced by an erroneous view of the law, there is no evidence to support the decision, or if, although there is some evidence to support the decision, on the entire evidence, we are left with a firm and definite conviction a mistake has been made. Dinius v. Dinius, 1997 ND 115, p 12, 564 N.W.2d 300.

¶11. In an original proceeding to decide custody of a minor child, the district court need only decide the best interests and welfare of the child. Id. at p 11, 564 N.W.2d 300. However, to modify child custody, the district court must apply a two-step analysis. Gietzen, 1998 ND 70, p 8, 575 N.W.2d 924. The first step involves determining whether there has been a significant change of circumstances since the divorce and original custody determination. Id. at p 11, 575 N.W.2d 924. In the second step, the district court must determine whether the change in circumstances compels or requires, in the best interests of the child, a change of custody. Id. at p 8, 575 N.W.2d 924; Dinius, 1997 ND 115, p 11, 564 N.W.2d 300; Barstad v. Barstad, 499 N.W.2d 584, 587 (N.D.1993).

¶12. Ramstad argues the district court applied the wrong law in awarding the custody change. He asserts the court initially treated the parties' motions to amend as an original custody determination by applying the statutory factors under N.D.C.C. § 14-09-06.2 to determine the child's best interests. If the court's decision had been based on such an incorrect view of the law, it would have been clearly erroneous. However, Ramstad moved the court to amend its findings, conclusions, and judgment, or in the alternative, for a new trial, and Biewer filed a counter-motion. The court issued a new memorandum opinion and order amending both its findings of fact and the conclusions of law of the second amended judgment, as shown above. In doing so, the court applied the proper legal test. See, e.g., Ludwig v. Burchill, 514 N.W.2d 674, 677 (N.D.1994) (noting that errors in the memorandum opinion were corrected in the second amended judgment). The district court was given a chance to correct itself under Rules 52 and 59, N.D.R.Civ.P., and it did so. Therefore, the district court applied the correct legal test.

¶13. Ramstad argues the district court did not apply the two-step test with the stability of the custodial parent as the primary consideration. We disagree.

¶14. As we have noted, the important factor in any change of custody proceeding is the stability of the child's relationship with the custodial parent. Blotske v. Leidholm, 487 N.W.2d 607, 609 (N.D.1992). Our caselaw reflects this preference by requiring a change in circumstances which compels or requires a change in custody. Id.

¶15. When a district court fails to apply the two-step test, the preference for stability is not recognized. In Blotske, we reversed the granting of a change of custody, noting the trial court:

[U]nderestimated the impact of uprooting [the child] from her established custodial relationship and focused instead on the potential advantages of the non-custodial parent's home. The trial court, in effect, has misapplied the factor of continuity. It is the continuity of the custodial parent-child relationship that is critical, not the continuity of the [non-custodial] stepparent-child relationship.

Id. at 611 (citation omitted). Likewise, in Orke v. Olson, we reversed a change of custody determination because the district court focused on the stability of the non-custodial parent's home and the benefits the child would receive. Orke v. Olson, 411 N.W.2d 97, 100-01 (N.D.1987).

¶16. Here, the district court properly considered the stability of the child with the custodial parent. The findings focus on the child and...