Thorlaksen v. Thorlaksen, 890245

Citation453 N.W.2d 770
Decision Date27 March 1990
Docket NumberNo. 890245,890245
PartiesGregory S. THORLAKSEN, Plaintiff and Appellant, v. Robin C. THORLAKSEN, n/k/a Robin C. Lang, Defendant and Appellee. Civ.
CourtUnited States State Supreme Court of North Dakota

Rustad & Schmitz, P.C., Williston, for defendant and appellee; argued by Cathy Howe Schmitz.

MESCHKE, Justice.

Gregory Thorlaksen appealed from a decree placing their three children in the primary custody of his former spouse, now Robin Lang, and ordering him to pay her child support of $600 per month except "for any month in which he has the children for three (3) weeks or more." We reverse a finding that Greg was in contempt for nonpayment of support and we otherwise affirm.

Greg and Robin married young. Their daughters, Amanda and Sarah, were born in 1979 and 1981, and their son, Eric, was born in 1984. In 1987, Robin moved into Tioga from the family's nearby rural home and they agreed to a divorce. In August 1987, the stipulated divorce decree agreed on "joint care, custody and control of the minor children" for Greg to have primary custody during each school week and for Robin to have custody on weekends and during most summer weeks. Greg agreed to pay support to Robin of $100 per month per child during June, July and August of each year.

In September 1987, Robin sought relief from the decree. The trial court vacated the judgment because Robin had not been represented by counsel in the divorce settlement.

                After home studies, a pre-trial conference, partial trial, psychological evaluations, and completion of the trial in April 1989, custody and support were redetermined.  During these prolonged proceedings, Robin married Jerald Lang, they had a child of their own in September 1988, and they moved to Des Lacs, North Dakota.  The trial court ruled that "the parents shall have joint custody with the primary possession of the children with Robin during the school year and with ... Greg, during the summer months."   The trial court also decreed that Greg pay child support to Robin of $200 per month per child, totalling $600 each month commencing May 1, 1989
                

In July 1989, Greg asked the trial court to reconsider. After a hearing, the trial court modified Greg's support obligation by suspending it for each month in which he had the children for three weeks or more, including August 1989. The trial court "divide[d] the children for tax exemption purposes for the 1989 tax year and thereafter," giving Greg two and Robin one, and restricted Robin from changing the children's residence outside of North Dakota. The trial court also ruled that it was "without power or authority" to relieve Greg from paying support past due and that Greg was in contempt for not paying child support for May, June, and July. All other changes sought by Greg were denied.

Greg appealed, claiming that the placement of custody and the computation of support were clearly erroneous. Greg also claimed that the trial court erroneously found him in contempt for not paying child support for May, June, and July of 1989 "while the children were with him."

CUSTODY

Greg argued that the trial court made several errors in placing custody "which should be reversed and custody restored to Greg." Robin responded that the errors did not affect any substantial rights and that the trial court "correctly followed statutory guidelines as well as expert testimony" in placing primary custody of the children with Robin. We agree with Robin.

In the trial court's memorandum ruling, the trial court summarized matters to be decided:

It was agreed at the pretrial conference of the 13th of June, 1988, that the main issue remaining in dispute was the issue of custody, child support, and visitation as the parties had agreed in April by stipulation the Court should enter an absolute decree of divorce, each from the other, in the action immediately and that the further resolution of the issues ... would await further appropriate proceedings.

Greg attacked this reference to an April stipulation for an absolute divorce as clearly erroneous, apparently believing that Robin's remarriage, before all aspects of the divorce were final, put her in a bad light as a bigamist. While there was only a proposed and not a completed stipulation about the decree of divorce in April, the record shows that Robin was remarried in May 1988 and that, at a June 1988 pretrial conference, it was agreed that the only remaining issues were custody, support and visitation. Although the trial court did inaccurately state a detail about the stipulation, the issues were thus narrowed and the divorce itself was not disputed.

Greg clamorously criticized Robin's morals at the trial but the trial court found her fit. The trial court did not believe Greg's witnesses who suggested Robin's conduct was immoral and the trial court found that "I don't think [Robin] knowingly committed bigamy or adultery, if at all." We, too, reject Greg's continuing effort to disparage Robin. Her marriage to Jerald does not adversely affect her fitness for custody of her children.

In deciding custody, the trial court used an "addendum" to a home studies report. The trial court quoted the addendum as saying that "the girls were becoming more anxious about the permanent custody and were trying in their own way to get to their mother by complaining about their father and his restrictive visitation, which, in effect, was creating an increased stress." For those reasons, the trial court said that it "does not feel that the desirability Greg complained that it was error for the trial court to use an addendum which was not in evidence. Greg cited Hultberg v. Hultberg, 259 N.W.2d 41 (N.D.1977), which held that the use of a report from a court-appointed expert was error when it was not in evidence and when the parties had no opportunity to cross-examine the expert.

of maintaining the continuity [in Greg's home] is important."

NDCC 14-09-06.3 authorizes a trial court to order a public agency to investigate and report arrangements for custody. 1 At the request of Robin's attorney, the trial court ordered the Williams County Juvenile Supervisor "to arrange for an investigation and report concerning custodial arrangements on these children," with costs divided equally between Greg and Robin. The home studies were done by Louise Torkelson, a licensed social worker with Williams County Social Services. She reported both homes were satisfactory. Her report was not put in evidence but Louise Torkelson was called as a witness by Robin at the first part of the trial in August 1988. Torkelson testified that Robin's home was satisfactory and she was cross-examined by Greg's attorney.

Later, in October 1988, Torkelson filed the addendum after a visit with the two girls in their school. The record does not explain why this additional investigation and report was done. Although the trial was completed after that, in April 1989, the addendum was not put in evidence nor was Torkelson called for more testimony.

Ordinarily a trial court must decide from the evidentiary record of testimony and exhibits. NDRCivP 43; Hultberg v. Hultberg; Wood v. Krenz, 392 N.W.2d 395 (N.D.1986). A trial court may call a witness on its own motion or at the suggestion of a party, and all parties are entitled to cross-examine a witness thus called. NDREv 614(a). A trial court may appoint an expert witness, who may be called to testify by the court or any party. NDREv 706. Constitutionally, a statute could make a report of an official investigation admissible without calling the person who made it as a witness, if opportunity for cross-examination is preserved. 2 J. Wigmore, Evidence Sec. 563, n. 5 (Chadbourn rev. 1979). But it is unclear whether NDCC 14-09-06.3 was intended to make a home studies report evidentiary without formal effort. The statute does say that "[a] party may call the investigator ... for cross-examination...." Id. For a trial court to use a home studies report, it should be made a part of the evidentiary record. Nevertheless, a parent desiring to challenge a statutory report on custodial arrangements should take some action to contradict it. Greg had opportunities to do so but didn't.

Like the original home studies report, this addendum was apparently submitted to both parents by the court after it was filed. Greg had an opportunity to call Torkelson for cross-examination when the trial was thereafter completed. In addition, at the hearing on his motion for reconsideration The trial court said that "it's only normal, natural, and right that [the girls] want to be near their mother at their age" and that the boy "[a]t that age ... needs its mother's care more than its dad's." Emphasizing that parents have equal rights to care, custody, education, and control of their minor children, NDCC 14-09-06, Greg insisted that these statements showed that the trial court used an improper gender bias in deciding custody.

after the trial court's decision, Greg had another opportunity to challenge the addendum or to object to the trial court's use of it in the decision. Greg did not use those opportunities. Under these circumstances, we conclude that the trial court's use of the addendum in this case was not inconsistent with substantial justice. NDRCivP 61. We deem the error harmless.

We agree that if the trial court assumed that small children always need their mother more than their father, an improper factor was used. However, Robin argued that the trial court's comments should not be looked upon as an improper expression of gender bias, but rather as "harmless editorializing that only approves of the children's clear choice" or as summarizing that these children's stated preference for their mother was reasonable. We conclude that the trial court did not use an improper gender bias to decide custody.

By the point in its memorandum opinion where the...

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