Sweeney v. Sweeney, 20010129.

• Decision Date: 20 December 2002
• Docket Number: No. 20010129.,20010129.
• Citation: 2002 ND 206,654 N.W.2d 407
• Parties: Danni Jane SWEENEY, n/k/a Danni Jane Lynch, Plaintiff, Appellant and Cross-Appellee, v. David James SWEENEY, Defendant, Appellee and Cross-Appellant.
• Court: North Dakota Supreme Court

654 N.W.2d 407

2002 ND 206

Danni Jane SWEENEY, n/k/a Danni Jane Lynch, Plaintiff, Appellant and Cross-Appellee, v. David James SWEENEY, Defendant, Appellee and Cross-Appellant.

No. 20010129.

Supreme Court of North Dakota.

December 20, 2002.

Charles L. Neff, Neff, Eiken & Neff, P.C., Williston, ND, for defendant and cross-appellant.

Irvin B. Nodland, Irvin B. Nodland, P.C., Bismarck, ND, for plaintiff and cross-appellee.

NEUMANN, Justice.

[¶ 1] David Sweeney cross-appealed from an amended divorce judgment,¹ alleging the trial court erred in denying his motion to change custody of the parties' minor child, in denying his request for costs and attorney's fees, and in refusing to suspend his child support obligation. We affirm the trial court's denial of the motion to change custody and refusal to suspend child support, but we reverse and remand on the issue of costs and attorney's fees.

I

[¶ 2] Danni and David Sweeney were married in Minnesota in 1989 and had one child, Charlie. During the marriage Danni and Charlie lived for extended periods with Danni's family in North Dakota. In 1990, Danni filed for divorce in Minnesota and moved permanently with Charlie to North Dakota. The original Minnesota divorce decree entered in 1991 granted custody of Charlie to Danni and specified visitation for David.

[¶ 3] Because of difficulties in exercising visitation under the original decree, the parties participated in mediation and David moved the Minnesota court to enforce his visitation rights. On September 14, 1994, the Minnesota court entered a second amended judgment which contained a detailed visitation schedule and specific protocols for telephone contact between David and Charlie. The second amended judgment was filed as a foreign judgment in this state to allow enforcement in Williston, where Danni and Charlie were living. After negotiations between the parties, some visitations did occur between 1994 and 1996. Danni filed a motion in North Dakota in May 1995 seeking restrictions on Charlie's travel for visitations with David, who had moved to Utah.

[¶ 4] After an October 1996 visit in Utah, Charlie told David in a telephone call that he never wanted to see him again. Charlie has never given a reason for his reluctance to visit David. The parties subsequently filed numerous motions, David seeking to enforce his visitation rights under the second amended judgment and Danni seeking extensive restrictions on visitation.

[¶ 5] In 1997 a guardian ad litem was appointed for Charlie to facilitate and supervise visitation, and to advise whether unsupervised visits were appropriate. After meeting with Charlie and supervising a few visits, the guardian ad litem moved to withdraw, citing interference and noncooperation by Danni and her family and friends.

[¶ 6] In March 1998, David filed a motion for a change of custody or, in the alternative, to strictly enforce his visitation rights. David also moved for costs and attorney's fees under N.D.C.C. § 14-09-24 for Danni's continued obstruction of visitation. Danni responded by seeking a continuance and alleging for the first time in these proceedings that David had physically and sexually abused her during the marriage. In response to these allegations, and subsequent allegations by Danni that David may have abused Charlie, the court appointed a psychologist to make recommendations on custody and visitation after evaluating David, Danni, and Charlie. Danni was uncooperative with the court-appointed psychologist, and she eventually moved to terminate his appointment and to prevent further psychological evaluations of Charlie. Because of these conflicts, the court ordered the psychologist to prepare his report based upon the information he had collected to that point.

[¶ 7] The court held evidentiary hearings in September 1998 and August 2000. Danni sought restrictions on David's visitation with Charlie. David sought a change of custody, sought costs and attorney's fees based upon Danni's willful and persistent interference with visitation and her unsubstantiated allegations of abuse, and sought suspension of his child support obligation to recoup his costs and attorney's fees.

[¶ 8] The trial court issued its findings of fact, conclusions of law, and order for judgment on March 28, 2001. The court found that Danni had "engaged in a continued course of conduct which minimized, limited, and obstructed David's relationship with Charlie," including "failing to allow David reasonable access to the child; failure to follow the visitation orders of the Minnesota court; and failing to implement visitation orders of this Court." The court further found there was no credible evidence that David had committed abuse of Danni or Charlie. The court determined that Danni should retain custody, but the court specifically noted this was Danni's "final opportunity" to recognize and facilitate David's visitation rights. The court further stated that, if Danni failed to comply with the ordered visitation, the court would, after a limited hearing, change custody. The court denied David's motions for attorney's fees and his motion to suspend child support to recoup his costs and attorney's fees. The court did order Danni to pay one-half of the bills of the guardian ad litem and court-appointed psychologist, and ordered her to pay approximately one-fourth of David's travel expenses for attempting to enforce his visitation rights in North Dakota. An amended judgment was entered on April 4, 2001. Danni appealed and David cross-appealed.

II

[¶ 9] David argues the trial court's decision denying his motion for a change of custody is clearly erroneous.

[¶ 10] In resolving a motion to change custody, the trial court must determine (1) whether there has been a significant change in circumstances since the original custody decree, and, if so, (2) whether a change of custody is necessary to serve the best interest of the child. N.D.C.C. § 14-09-06.6(6); BeauLac v. BeauLac, 2002 ND 126, ¶ 12, 649 N.W.2d 210; Kelly v. Kelly, 2002 ND 37, ¶ 15, 640 N.W.2d 38. The party seeking modification bears the burden of showing a change of custody is required. N.D.C.C. § 14-09-06.6(8); BeauLac, at ¶ 12; Selzler v. Selzler, 2001 ND 138, ¶ 21, 631 N.W.2d 564. A trial court's decision whether to change custody is a finding of fact subject to the clearly erroneous standard of review on appeal. Hilgers v. Hilgers, 2002 ND 173, ¶ 22, 653 N.W.2d 79; Kelly, at ¶ 13. A finding of fact is clearly erroneous if there is no evidence to support it, if the finding is induced by an erroneous view of the law, or if the reviewing court is left with a definite and firm conviction a mistake has been made. Hilgers, at ¶ 22; Kelly, at ¶ 13. In close cases involving custody of children between two fit parents, it is especially appropriate to give due regard to the trial court's opportunity to determine the credibility of the witnesses. BeauLac, at ¶ 12.

[¶ 11] When a request for a change of custody is predicated upon the custodial parent's frustration of the noncustodial parent's visitation rights, the court must act with restraint and caution. Anderson v. Resler, 2000 ND 183, ¶ 9, 618 N.W.2d 480. We have explained the delicate balance between the competing rights, privileges, and interests in such cases:

Visitation between a child and her noncustodial parent is presumed to be in the best interests of the child. Visitation is not only a privilege of the noncustodial parent, but also a right of the child. Only when visitation "is likely to endanger the child's physical or emotional health," may it be withheld.

Having recognized and acknowledged the importance of the noncustodial parent's visitation privilege, we have also emphasized that frustration of visitation does not alone constitute a sufficient change in circumstances to warrant a change in custody. Before visitation problems justify changing custody, there must be a finding that the visitation problems had worked against the child's best interests. In this case, while the district court found that [the mother's] efforts to frustrate visitation, in effect, deprived [the child] of contact with loving family members, that deprivation is better remedied at first by resort to a more rigid visitation schedule, rather than a change of custody.

Anderson, at ¶ 9 (quoting Blotske v. Leidholm, 487 N.W.2d 607, 610 (N.D.1992)). We have also recognized that, although other methods should be used initially to remedy frustration of visitation, after exhausting other remedies a change in custody may be the only effective method to correct the damage caused by a particularly stubborn and defiant custodial parent. Anderson, at ¶ 10; Hendrickson v. Hendrickson, 2000 ND 1, ¶ 18, 603 N.W.2d 896; Hendrickson v. Hendrickson, 1999 ND 37, ¶ 13, 590 N.W.2d 220.

[¶ 12] We concluded in Anderson, 2000 ND 183, ¶ 11, 618 N.W.2d 480 (citations omitted):

In a change of custody proceeding, the best interests of the child must be measured against the backdrop of the stability of the child's relationship with the custodial parent. The important factor in weighing stability is the stability of the child's relationship with the custodial parent. However, notwithstanding a happy normal child with strong bonds of attachment to the custodial parent, egregious violations of specific court ordered visitation, evidence of an intransigent attitude against visitation rights and alienating behavior can weigh against the child's best interests.

See also Lovin v. Lovin, 1997 ND 55, ¶ 17, 561 N.W.2d 612

.

[¶ 13] In addressing custody and visitation, the trial court made the following findings of fact:

X.

The bulk of the expert testimony agrees that it is in the child's best interest to reestablish a functional parent-child relationship between Charlie and his father.

From a complete review of the extensive record made in this action, the Court finds that it is in the paramount best interests of Charlie that the

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