Severson v. Hansen

• Decision Date: 28 February 1995
• Docket Number: No. 940163,940163
• Citation: 529 N.W.2d 167
• Parties: Randy SEVERSON, Plaintiff and Appellee, v. Carla HANSEN, Defendant and Appellant. Civ.
• Court: North Dakota Supreme Court

Page 167

529 N.W.2d 167

Randy SEVERSON, Plaintiff and Appellee, v. Carla HANSEN, Defendant and Appellant.

Civ. No. 940163.

Supreme Court of North Dakota.

Feb. 28, 1995.

Robert S. Thomas (argued), Thomas Law Firm, Minot, for plaintiff and appellee.

Richard L. Hager (argued), Kenner Sturdevant, P.C., Minot, for defendant and appellant.

MESCHKE, Justice.

Carla Hansen appeals from a decree placing custody of the child, Maci Marie Severson, with her father, Randy Severson. We affirm.

Severson and Hansen have never been married, but they lived together for more than a year and have one child, Maci, born on September 10, 1991. After their relationship ended, Severson sued Hansen for custody of Maci. With the approval of both parents, the trial court appointed a psychologist, Dr. Dion Darveaux, to do a custody investigation, evaluation, and report. After conducting psychological tests, interviews, and observations of both parents, and visiting their homes, Dr. Darveaux recommended that Severson receive primary custody of Maci and that Hansen receive liberal visitation.

After this adverse report, Hansen retained another psychologist, Dr. Stephan Podrygula, to review Dr. Darveaux's custody report. Dr. Podrygula essentially disagreed with Dr. Darveaux's report. After hearing extensive testimony, the trial court adopted Dr. Darveaux's recommendation and placed primary custody of Maci with Severson, and decreed liberal visitation for Hansen. ¹ Hansen appealed.

Hansen asserts that, in placing custody with Severson, the trial court abdicated its responsibility to determine Maci's best interests and clearly erred in giving weight and credibility to Dr. Darveaux's "flawed" recommendation.

A trial court's determination of child custody is a finding of fact and will not be set aside on appeal under NDRCivP 52(a) unless it is clearly erroneous. Weber v. Weber, 512 N.W.2d 723 (N.D.1994). As we explained in Swanston v. Swanston, 502 N.W.2d 506 (N.D.1993), a finding of fact is clearly erroneous if it is induced by an erroneous view of the law, if there is no evidence to support it, or if, although there is some evidence to support it, the reviewing court, on the entire evidence, is left with a definite and firm conviction that a mistake has been made.

In an initial child-custody determination, a trial court must decide custody on the best interests and welfare of the child. Wolf v. Wolf, 474 N.W.2d 257 (N.D.1991). In determining the best interests of the child, the trial court has substantial discretion, but it must consider and evaluate the factors listed in NDCC 14-09-06.2. Id. Although the trial court is not required to make a separate finding on each statutory factor, the court's findings should be stated with sufficient specificity so that we can understand the factual basis for its decision. Id.

This record demonstrates that both parents have a loving relationship with Maci and that both are capable of meeting her needs. Dr. Darveaux's report recognized that Severson's employment status would allow him to spend an almost unlimited amount of time with Maci while Hansen's employment would not. Dr. Darveaux's report said that Maci needs a combination of resources from both parents and that her best interests would be served by being with at least one of her parents as much as possible. Dr. Darveaux thus concluded that it would be in Maci's best interests for the non-custodial parent to have generous visitation privileges. Relying on his evaluation of the parents' psychological makeup, Dr. Darveaux concluded that Severson would be the more amenable parent for scheduling generous visitation with the other parent that would best meet Maci's interests. Based on these factors, Dr. Darveaux recommended that Severson have primary custody of Maci with generous visitation for Hansen.

In placing Maci in Severson's primary custody, the trial court followed Dr. Darveaux's recommendation. In relying on an expert, such as a psychologist, to determine the best interests of a child, we are sensitive to the requirement that a trial court should not abandon its ultimate responsibility to make the decision. See Berg v. Berg, 490 N.W.2d 487, 492 (N.D.1992) (VandeWalle, Justice, concurring). However, Hansen's argument that Dr. Darveaux's recommendation was "flawed" because it contained "both glaring bias and unsubstantiated conclusions" goes to the weight given to that evidence by the trial court. Weber; Berg. Here, the court found that Dr. Darveaux's recommendation was "further sustained by the Court's observation of the parties as they testified and responded at the hearing." The credibility of witnesses, including experts, and the weight to be given their testimony are factual determinations for the trial court, and under NDRCivP 52(a), we give due regard to the trial court's opportunity to assess the credibility and demeanor of the witnesses.

The trial court found that Severson has considerable time to spend with Maci and also observed that if Severson's employment status changed, the custody arrangement could be modified. "A 'career mother' is not disqualified for custody of her children any more than a working father, but where each parent works outside of the home and where each has the ability and desire to care for their children, the trial court must necessarily weigh the circumstances on a fine and delicate scale." Landsberger v. Landsberger, 364 N.W.2d 918, 920 (N.D.1985). Here, the trial court's findings reflect that its custody determination turned on Severson's greater ability to spend time with Maci, as well as his greater flexibility on Maci visiting Hansen. Although the trial court's findings on the relevant factors affecting the best interests and welfare of the child could have been better stated, they are sufficient for us to understand the factual basis for the custody decision.

In situations like this, when two capable parents disagree about how to fulfill their parental responsibilities, courts must choose for them and, often, between them. Berg; Landsberger. The trial court did not find that Hansen was a bad parent; rather, the court found that placement of primary custody with Severson was in Maci's best interests. In making that choice, the trial court was vested with wide latitude to determine Maci's best interests, and we will not reverse merely because the evidence might also support other findings, or we might have made different findings if we had tried the case. Walch v. Jacobson, 361 N.W.2d 617 (N.D.1985). We are not left with a definite and firm conviction that the trial court made a mistake in placing custody of Maci with Severson. We therefore hold that the trial court's custody determination is not clearly erroneous.

We affirm the decree.

VANDE WALLE, C.J., and NEUMANN and SANDSTROM, JJ., concur.

LEVINE, Justice, concurring in the result.

Because I agree that it is the trial court's function, not mine, to weigh the evidence, I concur in the result. I write separately to expose the issue of gender bias and to suggest that much needs to be done to educate and familiarize all judges and lawyers (and psychologists too, as this case suggests) on the subject, so that when gender bias is present it can be recognized and diffused.

Dr. Darveaux applied two very different standards in evaluating Randy and Carla's MMPI test results and interviews. For Randy's, the psychologist reasonably took into account the stress and fear inherent in a child custody dispute. So, Randy's "defensive manner" to...