Reede v. Steen

• Decision Date: 02 October 1990
• Docket Number: No. 900078,900078
• Citation: 461 N.W.2d 438
• Parties: Darian REEDE, Plaintiff and Appellee, v. Shirley STEEN, formerly known as Shirley Reede, Defendant and Appellant. Civ.
• Court: North Dakota Supreme Court

Page 438

461 N.W.2d 438

Darian REEDE, Plaintiff and Appellee, v. Shirley STEEN, formerly known as Shirley Reede, Defendant and Appellant.

Civ. No. 900078.

Supreme Court of North Dakota.

Oct. 2, 1990.

Freed, Dynes, Reichert & Buresh, PC, Dickinson, for defendant and appellant; argued by Eugene F. Buresh.

Howe, Hardy, Galloway & Maus Hettinger Office, Hettinger, for plaintiff and appellee; argued by Jeff Rotering.

ERICKSTAD, Chief Justice.

Shirley Steen, formerly Shirley Reede, appealed from the judgment of the District Court for Adams County modifying an original custody award by allowing Darian Reede custody of the parties minor child Katherine Reede. We affirm.

On February 28, 1983, Shirley and Darian were divorced at Rapid City, Pennington County, South Dakota. Relying upon an agreement entered into by the parties, the District Court for Pennington County granted to Shirley the care, custody, and control of Katherine.

On June 26, 1989, Darian commenced an action in the District Court for Adams County seeking a change in the original custody award. After determining that there had been a significant change in circumstances and that the best interests of Katherine would be served by a change in custody, the district court transferred custody to Darian. This appeal followed.

Following their divorce in 1983 Darian moved to Hettinger, North Dakota, while Shirley remained in Rapid City, South Dakota. Subsequent to the divorce, Shirley enrolled in the South Dakota National Guard and began studies at the Rapid City School of Mines and Technology. Katherine spent approximately 80 days with Darian in Hettinger during 1983, and approximately 100-120 days with Darian in Hettinger during 1984.

During 1985, Shirley continued to fulfill her commitments to both her studies and the South Dakota National Guard. As a result, Katherine was enrolled in kindergarten in Hettinger and spent approximately 214 days in the care of Darian during that year.

From January to late May 1986, Katherine completed kindergarten in Hettinger while living with Darian, thereafter she returned to Rapid City to live with Shirley. Katherine remained with Shirley in Rapid City only until late July, when she once again returned to Hettinger to live with Darian and subsequently enrolled in first grade. Katherine resided with Darian in Hettinger throughout the remainder of 1986, spending approximately 297 days in his care during that year.

Katherine completed first grade in Hettinger with Darian and returned to Rapid City in May of 1987. Katherine remained with Shirley in Rapid City for the rest of 1987 with the exception of a few visits with Darian in Hettinger. Katherine was enrolled in second grade in Rapid City. During 1987, Katherine spent approximately 146 days with Darian in Hettinger.

Katherine began 1988 in Rapid City with Shirley, where she completed second grade. Katherine spent the summer of 1988 with Darian, but returned to Rapid City to begin third grade in the fall of 1988. Katherine resided in Rapid City throughout the remainder of that school term, spending approximately 125 days with Darian during 1988.

Katherine completed third grade in Hettinger in 1989, spending the time from December 18, 1988, until late June of 1989 in Darian's care. In January of 1989, Shirley moved to Santa Rosa, California. Subsequent to June 28, 1989, Katherine was under Shirley's care in Santa Rosa until the time of trial on January 29, 1990.

Before returning Katherine to Shirley on June 28, 1989, Darian commenced an action in the District Court for Adams County seeking a modification of the custody of Katherine. The district court determined that a significant change of circumstances had occurred and the interests of Katherine would best be served through a modification of the custody agreement, awarding custody of Katherine to Darian. Shirley appealed the district court's judgment, asserting that the trial court's determination that the best interests of Katherine would be served by a change in custody was clearly erroneous.

This Court has repeatedly set forth a two-step analysis to be applied when a party seeks the modification of a custody award. E.g., Heinen v. Heinen, 452 N.W.2d 331 (N.D.1990); Mertz v. Mertz, 439 N.W.2d 94 (N.D.1989); Miller v. Miller, 305 N.W.2d 666 (N.D.1981). First, the trial court must determine whether or not there has been a significant change in circumstances subsequent to the original divorce decree and custody award. Heinen, 452 N.W.2d at 333; Anderson v. Anderson, 448 N.W.2d 181, 182 (N.D.1989). Second, the trial court must determine whether or not the changes which have occurred are such that it would be in the best interests of the child to modify the original custody award. Heinen, 452 N.W.2d at 333; Anderson, 448 N.W.2d at 182. The party seeking the modification of the custody award has the burden of showing the existence of a change of circumstances which requires a change in custody. Heinen, 452 N.W.2d at 333; Pitsenbarger v. Pitsenbarger, 382 N.W.2d 662, 664 (N.D.1986).

The application of the "clearly erroneous" standard of review to child custody cases is well-settled. Bader v. Bader, 448 N.W.2d 187, 188 (N.D.1989); Lapp v. Lapp, 293 N.W.2d 121, 124 (N.D.1980). In Lapp we stated that "[a] trial court's determinations on matters of child custody, child support, alimony, and the division of property are treated as findings of fact. The findings of the trial court will not be set aside on appeal unless they are clearly erroneous." [Citations omitted.] Lapp, 293 N.W.2d at 124-25. This rule has remained unchanged since our initial application of it to family law situations in Ferguson v. Ferguson, 202 N.W.2d 760, 763 (N.D.1972), and our initial application of it to child custody in Silseth v. Levang, 214 N.W.2d 361 (N.D.1974). In Mertz, we defined the clearly erroneous standard by stating the following:

"The decision of the trier of fact will not be set aside unless it is clearly erroneous under Rule 52(a), N.D.R.Civ.P. A finding of fact is clearly erroneous if the reviewing court is left with a definite and firm conviction that a mistake has been made, or if the finding was induced by an erroneous view of the law." [Citations omitted.]

Mertz, 439 N.W.2d at 96; Accord Larson v. Larson, 234 N.W.2d 861, 865 (N.D.1975); In re Estate of Elmer, 210 N.W.2d 815, 820 (N.D.1973) (citing United States v. United States Gypsum Co., 333 U.S. 364, 68 S.Ct. 525, 92 L.Ed. 746 (1948)). We must also keep in mind that "[t]he mere fact that the appellate court might have viewed the facts differently, if we had been the initial trier of the case, does not entitle us to reverse the lower court." Larson, 234 N.W.2d at 865 (quoting Elmer, 210 N.W.2d at 820).

Shirley does not seem to seriously contest the trial court's finding that there has been a significant change in circumstances. That being so, we shall devote most of our attention in this case to her contention that the trial court's finding that a modification of the custodial arrangement would be in the best interests of the minor child is clearly erroneous.

In determining whether or not the best interests of the child would be served, the trial court is to consider the factors outlined in section 14-09-06.2 of the North Dakota Century Code. ¹ Lapp, 293 N.W.2d at 125. It is not necessary for the trial court to make an express written finding as to each of the enumerated factors in the statute. Id. at 128; Mertz, 439 N.W.2d at 96. The trial court concluded that factors (a), (b), (c), (f), (g), (h), (i), (j), and (k) weighed equally. In considering factor (d), the length of time the child has lived in a stable, satisfactory environment and the desirability of maintaining continuity, the court found in favor of Darian. The court supported this conclusion with evidence which indicated that Katherine had often been left alone while residing with Shirley. In considering factor (e), the permanence, as a family unit, of the existing or proposed custodial home, the court also found in favor of Darian. Finally, under consideration of other relevant factors as allowed under factor (l ), the court found the following:

"With regard to this factor, the Defendant has denied reasonable phone access to the minor child, the Defendant listens in on conversations between the minor child and the Plaintiff, the Defendant has denied written communication between the Plaintiff and the minor child, the current husband of the Defendant has been verbally abusive to the Plaintiff and his wife, and the Defendant has not kept the Plaintiff informed of the status of the minor child. All of these factors are detrimental to the best interests of the minor child."

Shirley asserts that the trial court erred in weighing factor (d) in Darian's favor by finding that Katherine was often left alone and forced to find her own way to and from school. Shirley argues and so testified that she had made arrangements for transportation with her landlord, Sheryl Slagle, who had a child similar in age to Katherine. Contradictory evidence was provided by Susan Plambeck, a neighbor of Shirley's who shared the transportation duties with Sheryl Slagle. Susan Plambeck said that no such transportation arrangements had been made and that Katherine was often left alone before and after school. It is for the trial court to determine whether or not an arrangement for Katherine's transportation to and from school and care after school had been made, as the trial court is in the best position to determine the credibility of the witnesses by hearing and observing them. Ebertz v. Ebertz, 338 N.W.2d 651, 654 (N.D.1983); Lapp v. Lapp, 336 N.W.2d 350, 353 (N.D.1983) (citing Lapp, 293 N.W.2d at 129). In discussing our review when governed by the "clearly erroneous" standard we have stated:

"We give due regard to the trial court's opportunity to judge the credibility of the witnesses and simply because we may have viewed the...