Schiff v. Schiff, 990335.

• Decision Date: 25 May 2000
• Docket Number: No. 990335.,990335.
• Citation: 2000 ND 113,611 N.W.2d 191
• Parties: Karen D. SCHIFF, Plaintiff and Appellant, v. Gary D. SCHIFF, Defendant and Appellee.
• Court: North Dakota Supreme Court

611 N.W.2d 191

2000 ND 113

Karen D. SCHIFF, Plaintiff and Appellant, v. Gary D. SCHIFF, Defendant and Appellee.

No. 990335.

Supreme Court of North Dakota.

May 25, 2000.

Patti Jo Jensen, Galstad, Jensen & McCann, PA, East Grand Forks, MN, for plaintiff and appellant.

Mary E. Seaworth, Howe & Seaworth, Grand Forks, N.D., for defendant and appellee.

KAPSNER, Justice.

[¶ 1] Karen D. Schiff appeals from a divorce judgment, challenging the terms of visitation and the child support and spousal support awards. We affirm the trial court's decision on visitation and spousal support, but reverse the decision on child support and remand for a redetermination of that award.

I

[¶ 2] Karen Schiff and Gary D. Schiff were married in Moorhead, Minnesota on September 3, 1984, when she was 25 years old and he was 32 years old. The couple moved to Fort Lauderdale, Florida, where Karen worked as a court reporter and Gary worked as a stockbroker. On March 11, 1990, the couple's first son was born. Shortly after the birth, Gary purchased a Subway franchise in the Fort Lauderdale area. During this time period, Gary was addicted to prescription drugs, mainly Percocet, a pain medication. In 1992, he entered a drug rehabilitation treatment program and, according to Gary, he has not abused drugs since then.

[¶ 3] Gary became acquainted with the owner of Subway, and after Gary sold his Subway franchise, he accepted a position with Subway International as the regional manager for Australia. In late 1992, the family moved to Brisbane, Australia. Karen did not work outside the home while they lived in Australia, and on July 26, 1993, the couple's second son was born. After about two and one-half years in Australia, Gary was given an opportunity to become Subway International's regional manager for the Pacific Asian market. Gary would be required to move to one of the Asian countries he was overseeing, but Karen did not want to move to Asia because of the amount of travel involved with Gary's job. When Gary began his new position in 1995, Karen and the children left Australia and moved to Phoenix, Arizona, where her parents lived.

[¶ 4] While Karen and the children lived in Phoenix, Gary would travel from Asia to visit them about once every six weeks. Because Gary continually traveled overseas for his job, he did not set up a home base in an Asian country and considered Phoenix his home. Karen and the children lived in Phoenix from August 1995 until June 1996, when she and the boys moved to Grand Forks. Karen had grown up in North Dakota and had numerous relatives and friends in the area. Karen found employment as a medical transcriptionist and commenced this divorce action in August 1996.

[¶ 5] In March 1997, the trial court issued a temporary order granting Karen custody of the children and Gary "reasonable visitation as agreed upon between the parties," and ordering Gary to pay $1,936 per month child support and $800 per month "temporary spousal maintenance" pending trial of the divorce action. Visitation quickly became troublesome, on occasion necessitating the intervention of both parties' counsel as well as the trial court. Karen alleged Gary was again abusing drugs and attempted to limit visitation to times she could supervise the visits. She opposed any attempt by Gary to exercise visitation away from the Grand Forks area.

[¶ 6] The divorce trial took place in September 1998. At that time, Karen was employed as a clerical worker for a local court reporter and was beginning to do some court reporting work, securing a percentage split of income from each job. Karen and the boys were living in a rented townhouse in Grand Forks. Gary was still employed with Subway International as the regional manager for the Pacific Asian market. When not traveling on business or for visitation purposes, Gary lives in an apartment complex in Manila, Philippines. Gary agreed Karen should have physical custody of the boys, but sought reasonable visitation including extended summer visitation during which he could bring the boys to stay with him in Asia.

[¶ 7] The trial court orally rendered its decision in July 1999, and judgment was entered in October 1999. The court awarded physical custody of the children to Karen and awarded Gary unsupervised "reasonable and liberal visitation." Those visitation rights included six weeks during the summer, commencing in 2000, during which Gary would be allowed to take the boys along with him to Asia where he works. The court ordered that Gary pay $1,231 per month in child support. The court awarded Karen $800 per month in rehabilitative spousal support "for refresher training as a court reporter or other occupation of Karen's choice commencing November 1, 1999 and ending October 30, 2000 at which time the jurisdiction of the court as to spousal support shall end." Karen appealed.

II

[¶ 8] Karen argues the trial court erred in granting Gary extended summer visitation each year because it would be contrary to the boys' best interests.

[¶ 9] District courts have the authority to allow a noncustodial parent visitation rights. Ackerman v. Ackerman, 1999 ND 135, ¶ 13, 596 N.W.2d 332. The primary purpose of visitation is to promote the best interests of the children, not the wishes or desires of the parents. Moilan v. Moilan, 1999 ND 103, ¶ 29, 598 N.W.2d 81. Visitation with the noncustodial parent is presumed to be in the child's best interests and is not merely a privilege of the noncustodial parent, but a right of the child. Hendrickson v. Hendrickson, 2000 ND 1, ¶ 21, 603 N.W.2d 896. A noncustodial parent should be deprived of visitation only if "visitation is likely to endanger the child's physical or emotional health." N.D.C.C. § 14-05-22(2); Ackerman at ¶ 13. Denying a noncustodial parent visitation with a child is an onerous restriction, such that physical or emotional harm resulting from the visitation must be demonstrated in detail before it is imposed. Hendrickson at ¶ 21.

[¶ 10] A trial court's decision on visitation is a finding of fact which will not be reversed on appeal unless it is clearly erroneous under N.D.R.Civ.P. 52(a). Zuger v. Zuger, 1997 ND 97, ¶ 36, 563 N.W.2d 804. A finding of fact is clearly erroneous only if it is induced by an erroneous view of the law, if no evidence exists to support it, or if, upon review of the entire evidence, we are left with a definite and firm conviction that a mistake has been made. State ex rel. Melling v. Ness, 1999 ND 73, ¶ 7, 592 N.W.2d 565.

[¶ 11] Karen argues the trial court erred in granting Gary extended summer visitation because of Gary's "drug use and addiction compounded by the ready availability of the medications to which he is addicted overseas," Gary's "inappropriate use of pornographic materials at a point where the boys could view them," Gary's "lack of involvement over the years with the boys," "issues of domestic violence," and "the inherent danger of travel overseas where [Gary] is employed."

A

[¶ 12] Karen argues restricted visitation is appropriate because Gary is addicted to prescription drugs. See generally Lohstreter v. Lohstreter, 1998 ND 7, ¶¶ 9-13, 574 N.W.2d 790

(upholding visitation restrictions where noncustodial parent had continuing problem with alcohol). Gary testified about his abuse of drugs in the years before 1992. He admitted to "a lot of drug use in college" during the mid-1970s. After college he was fired from several jobs because of his drug use. Criminal charges were filed against him for forging a prescription for Quaaludes and he underwent his first drug treatment program in 1977 under order of a Florida court. He voluntarily entered drug treatment programs in 1983 and 1992. Gary testified why he had not been in any drug rehabilitation centers since 1992:

I was at a point in my life where I was running a Subway store and I was taking a lot of pills, basically Percocet, and it got to a point where I was sick and tired of being sick and tired of the whole thing and I guess it was my bottom and that treatment program. worked. I was ready to, you know, to turn it over to a higher power and since then things have been good.

[¶ 13] Karen testified that after completion of Gary's 1992 drug rehabilitation program, she discovered foil packs at their home containing Phenergan and Tylenol with codeine pills. Gary acknowledged that as late as 1997 he occasionally used Valium on long overseas flights to help him sleep and Tylenol with codeine for headaches. At the 1998 divorce trial, however, Gary testified he no longer used any drugs and denied ever being under the influence of drugs when he cared for the children.

[¶ 14] Karen also testified that during their marriage Gary had pornographic material in their home, but Gary testified he kept those materials on a shelf in his closet and never showed them to the boys.

[¶ 15] The trial court found:

[W]hatever Mr. Schiff had done in his premarriage years he appears to have certainly led a life of a successful business man in his later years, not only successful personally but financially, and the Court is reasonably persuaded if his present conduct was like his former conduct he couldn't succeed [like] he does... [T]here must have been a change for the better. And so it appears that throughout the marriage that Gary has attempted to be a productive member of society and has accomplished that goal.

[¶ 16] The trial court essentially found that Gary had changed over the years and his former behavior currently posed no threat to the well being of his children. The trial court's finding on this issue is supported by the record and is not clearly erroneous.

B

[¶ 17] Karen contends the trial court erred in granting Gary extended summer visitation because he was not involved with the boys while they were growing up.

[¶ 18] Gary testified he was present at the older child's birth and held him every day. Gary was proud of his son and described that period as "probably the...