Reinecke v. Griffeth, 940384

Decision Date27 June 1995
Docket NumberNo. 940384,940384
Citation533 N.W.2d 695
PartiesKathleen A. REINECKE, f.k.a. Kathleen A. Griffeth, Plaintiff and Appellee, v. Scott A. GRIFFETH, Defendant and Appellant. Civ.
CourtNorth Dakota Supreme Court

Scott A. Griffeth, pro se, defendant and appellant.

Leslie D. Johnson, of Johnson Law Office, Fargo, for plaintiff and appellee.

LEVINE, Justice.

Scott A. Griffeth appeals from an amended judgment modifying his visitation rights and child support obligation. We affirm, but remand for consideration of Kathleen Reinecke's entitlement to attorney's fees on appeal.

Griffeth and Reinecke were divorced in June 1992. They have two children, Randall, 12, and Leah, 10. The parties' divorce judgment was the product of a negotiated stipulation. The judgment awarded joint legal and physical custody of the children to the parties, but stated "[t]he primary residence of the children shall be with the Plaintiff, Kathleen." Griffeth received "liberal and reasonable visitation ... to include a minimum of every other weekend and two evenings per week and alternative holidays." He was to pay Reinecke $300 per month in child support.

On March 25, 1994, Griffeth moved to modify the judgment to add six weeks of summer visitation with the children. Reinecke resisted, moving for a specific schedule for weekend and holiday visitation and a reduction in visitation to one weekday evening per week. Reinecke alleged visitation had "been a major source of conflict" between the parties. She also moved to modify Griffeth's child support obligation to comply with the North Dakota child support guidelines.

The parties orally argued their motions on May 5, 1994. The trial court then issued its memorandum decision and order on the issue of visitation, establishing a structured visitation schedule. An amended judgment was entered, providing pick-up and drop-off times for weekend visitation, specifying the holidays the children would spend with Griffeth, and reducing Griffeth's weekly visitation to one weekday evening per week during the school year. The judgment also provided Griffeth with four weeks of summer visitation and left in place his two weekday evenings per week visitation during the summer months. The trial court delayed resolving the child support obligation because insufficient evidence of Griffeth's income had been provided. The trial court ordered Griffeth to provide Reinecke with additional financial documents, including his business ledger, bank statements and his 1993 tax return.

On October 5, 1994, the trial court issued its order setting Griffeth's child support obligation at $550 per month, retroactive to June 1, 1994, based upon its calculation of Griffeth's current net monthly income of at least $1,700, and taking into consideration other assets which Griffeth possessed. A second amended judgment was entered, and Griffeth appealed.

On appeal, Griffeth challenges the trial court's reduction of his visitation during the school term to one weekday evening per week, the increase in his child support obligation to $550 per month, and the trial court's reliance on certain financial documents to calculate his monthly income for purposes of setting child support.

Visitation

A trial court's determination on visitation is a finding of fact which we will affirm unless clearly erroneous. NDRCivP 52(a); Dschaak v. Dschaak, 479 N.W.2d 484, 487 (N.D.1992). A finding is clearly erroneous if it is induced by an erroneous view of the law, if no evidence exists to support it, or if, on the entire evidence, we are left with a definite and firm conviction that a mistake has been made. Dalin v. Dalin, 512 N.W.2d 685, 687 (N.D.1994).

Griffeth contends the trial court erred in modifying his weekly visitation rights, because there has been no significant change in circumstances since the previous visitation order necessitating a modification. The party moving to modify a visitation order bears the burden of establishing that a significant change of circumstances has occurred since the prior visitation order, and that it is in the best interests of the children to modify the order. Muraskin v. Muraskin, 336 N.W.2d 332 (N.D.1983). The primary purpose of visitation is to promote the best interests of the children, not the wishes or desires of the parent. Dschaak, 479 N.W.2d at 487; Muraskin, 336 N.W.2d at 336. See NDCC Sec. 14-05-22(2). However, visitation with the noncustodial parent is presumed to be in the best interests of the children. Blotske v. Leidholm, 487 N.W.2d 607 (N.D.1992).

The trial court did not make findings of fact as to what the significant change in circumstances was in this case. However, we have relied on implied findings of fact when the record has enabled us to understand "the factual determination made by the trial court and the basis for its conclusions of law and judgment entered thereon." All Seasons Water Users v. Northern Improvement Co., 399 N.W.2d 278, 281 (N.D.1987). See Tiokasin v. Haas, 370 N.W.2d 559, 564 (N.D.1985) (relying on transcript of oral hearing as source of implied findings); Burich v. Burich, 314 N.W.2d 82 (N.D.1981) (reviewing evidence in record for source of trial court's implicit finding that mother's relocation was in best interests of children). See also Guthmiller v. Guthmiller, 448 N.W.2d 643, 646 (N.D.1989) (implied finding of material change in circumstances justifying reduction of obligor's child support obligation); Quirk v. Swanson, 368 N.W.2d 557 (N.D.1985) (implied finding on party's fitness and entitlement to visitation). The record convinces us there is an implicit finding that a significant change of circumstances occurred since the previous order.

Reinecke testified at the hearing and by affidavit that the two weekday-evening visitation during the school term interfered with the children's ability to complete their schoolwork, and contributed to behavior problems at home and poor performance in school. She also testified that the parties' son has been diagnosed with Attention Deficit Disorder since the parties' divorce and, consequently, needs more time to complete his schoolwork than he needed previously. The evidence before the trial court suggested the visitation on two evenings each week during the school year interfered with the children's ability to perform in school and disrupted their normal routine. These disruptions contributed to behavior problems in the children and conflicts between the parents. Cf. Muraskin, 336 N.W.2d at 336 [reversing trial court's modification of visitation because children were doing "above average" under prior order]. Based upon our review of the record, we cannot say the trial court's decision to modify Griffeth's visitation privileges was clearly erroneous. See Woolridge v. Schmid, 495 N.W.2d 52 (N.D.1993).

Griffeth next argues that the trial court's visitation order is clearly erroneous because it reduced his weekly visitation with the children during the school term without proof that the prior visitation schedule was harmful to the children. Griffeth relies on NDCC Sec. 14-05-22(2), which says:

"After making an award of custody, the court shall, upon request of the noncustodial parent, grant such rights of visitation as will enable the child and the noncustodial parent to maintain a parent- child relationship that will be beneficial to the child, unless the court finds, after a hearing, that visitation is likely to endanger the child's physical or emotional health."

Griffeth misreads the statute. Section 14-05-22(2) does not apply to a modification proceeding where the order modifying visitation does not revoke or restrict visitation. Cf. Healy v. Healy, 397 N.W.2d 71 (N.D.1986) [statute requires preponderance of evidence showing endangerment to justify modification which restricts visitation].

Reinecke requested the trial court create a structured visitation schedule to alleviate conflicts between the parties in arranging visitation. When parties cannot cooperate in arranging visitation, we have recommended a structured visitation schedule. See Blotske, 487 N.W.2d at 610. Griffeth maintains the trial court substantially reduced his visitation rights by eliminating one evening per week during the school term, rendering "39 days lost and forever unrecoverable" from the visitation schedule. However, in addition to reducing Griffeth's weekly visitation, the trial court granted Griffeth an extended summer visitation of four weeks and left in place his two weekday-evening visits per week when the children are not in school. The actual difference in Griffeth's yearly visitation time under the amended judgment is negligible, and we do not view it as a "restriction." See Persons v. Persons, 396 N.W.2d 744 (N.D.1986). During the four-week summer visitation, Griffeth will have exclusive physical custody of the children, in contrast to the loss of only two hours of evening visitation per week during the school term. We are not convinced the trial court's reshaping of the visitation order is clearly erroneous. See Gardebring v. Rizzo, 269 N.W.2d 104 (N.D.1978). Conflict over visitation can pose harm to the emotional welfare of the children caught in the middle. See Alvarez v. Carlson, 524 N.W.2d 584, 591 (N.D.1994). The trial court's modified visitation schedule provides a creative solution to what had become a source of contention between the parties.

Child Support

Griffeth challenges the trial court's modification of his child support obligation on two separate grounds. First, he argues the trial court's modification of his child support obligation was clearly erroneous because there was no evidence of a material change in circumstances. However, the original judgment setting Griffeth's child support obligation was entered June 16, 1992. The motion to modify support was brought nearly two years after the original judgment setting the child support obligation. Section 14-09-08.4(3), NDCC, 1 excuses a party from showing a...

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