Van Dyke v. Van Dyke

Citation538 N.W.2d 197
Decision Date22 September 1995
Docket NumberNo. 950027,950027
PartiesRick VAN DYKE, Plaintiff and Appellee, v. Lynne VAN DYKE, Defendant and Appellant. Civ.
CourtUnited States State Supreme Court of North Dakota

Robert A. Feder (argued), Wold Johnson, P.C., Fargo, for plaintiff and appellee.

Elizabeth Jane Sundby (argued), Fargo, for defendant and appellant.

NEUMANN, Justice.

Lynne Van Dyke appeals from a change of custody order and contempt citation. We affirm in part, reverse in part, and remand for further proceedings.

Lynne and Rick were married in May of 1987. They are the parents of a son, Nicholas, born in August of 1987. They were divorced in January of 1990, and Lynne was awarded sole custody while Rick was granted a liberal visitation schedule. Almost immediately the tension between the parties disrupted the visitations.

This case is an example of what occurs when divorcing parents refuse to cooperate in fostering their child's relationship with the ex-spouse. The tragedy is that in the end it is Nicholas who bears the scars of his parents' bitterness.

Cooperation in the wake of Lynne's and Rick's divorce has been limited. Lynne has repeatedly interfered with or denied Rick's visitation. The latest interference, Lynne's unannounced move to Iowa, forms the immediate basis for the change of custody which eventually was granted. Rick's motion, while triggered by this latest incident, is also based on and supported by a number of prior events.

Lynne worked at the Kinney's Shoe Store in Fargo. In August 1994, she was offered a job managing a store in Iowa and was given one day to decide whether to accept. She did accept on August 9, 1994. She moved from Fargo to Iowa on August 17, 1994, and very shortly thereafter moved Nicholas to live with her. Rick discovered Nicholas was no longer living in Fargo on August 23, 1994. On August 31, 1994, Rick moved for contempt proceedings and for a change of custody, and on September 15, 1994, he moved for permission to remove Nicholas from Iowa and return him to Fargo under NDCC section 14-09-07 (1991). Rick was unable to exercise his visitation rights while Nicholas was in Iowa.

Prior to this incident, there had been frequent court appearances by the parties. Lynne was held in contempt in 1989 for willfully and wrongfully withholding visitation from Rick. In 1990 there was another contempt motion filed by Rick, again for failure to comply with visitation. The disposition of this motion is unclear from our record. In November of 1991 Rick moved for change of custody, and a hearing was scheduled. Lynne failed to attend the hearing, and was again held in contempt and ordered to pay Rick's attorney's fees in the amount of $200. In December of 1991 the trial court found there was insufficient evidence to support a change of custody at that time. Finally, Lynne was held in contempt again following her move to Iowa. 1 That determination is one of the subjects of the current appeal.

In addition to her court orders, Lynne has established a history of antagonism regarding Rick's visitation with Nicholas. She and Nicholas have disappeared on days when visitation was to occur. She has made it impossible for Rick to contact her in order to arrange visitations. At one point she and Nicholas moved within Fargo, and Rick had to use the courts to force her to reveal her new address so he could pick up Nicholas for visitations. She refused to reveal her day-care provider to Rick so he could meet Nicholas there for visitation.

Even after Lynne returned to North Dakota for the hearing following her move to Iowa, the court had to order her to let Nicholas visit with Rick. At that point Lynne's move had deprived Rick of his visitation during the time Lynne and Nicholas had been absent from the state. In its change of custody order, the referee found

Defendant testified that she does not wish to interfere with Plaintiff and Nicholas having a "full" relationship, but the court finds it anomalous to the stated end that not only did Defendant leave the jurisdiction with the child and move to Iowa without first obtaining permission or even telling Plaintiff, but that when she was brought back to this jurisdiction to appear in court, she still did not provide an opportunity for Nicholas to be with his father until directed to do so by this court.

The referee made other very specific findings regarding the changes which prompted his decision. The referee found it is Lynne's desire eventually to manage the Kinney's Shoe Store in Fargo. Prior to managing a store of that size, her employer requires she manage a small store such as the store in Iowa, followed by a medium sized store in some other location, all before she could return to Fargo.

The referee also found Rick is the one who has taken responsibility to foster his son's involvement in extracurricular activities. It is Rick who takes Nicholas to doctors for examinations and treatments. It is also Rick who takes Nicholas for haircuts and the like. They spend much recreational time together, and Rick adjusts his work schedule to accommodate his son's activities.

Lynne, on the other hand, withdrew her son from extracurricular activities because her employment wouldn't allow her the time. The court apparently concluded her past history, coupled with her increased work schedule and the fact that the move to Iowa removes her son from his support network of extended family and father, resulted in a significant change in circumstances requiring a change in custody. The court also considered that the move was over 600 miles from Fargo.

The trial court, in the instant case, changed the custodial arrangement from one of sole custody remaining with Lynne to a joint custodial arrangement between the parents. Rick will exercise custody during the school year and Lynne's custody will occur during the summer.

Lynne challenges the court's findings, arguing no significant change of circumstances has occurred which requires the change of custody.

A trial court's decision to modify custody is a finding of fact subject to the clearly erroneous standard of review. Barstad v. Barstad, 499 N.W.2d 584, 587 (N.D.1993). For the original placement of a child following a divorce, the trial court need only determine the best interests and welfare of the child. Gould v. Miller, 488 N.W.2d 42, 43 (N.D.1992). Upon a motion to modify that placement, however, the trial court must make a two-step analysis. Id. First, the court must determine whether there has been a significant change in circumstances since the original placement. Id. If there has, then the court must also determine whether that change compels a custodial change in the child's best interest. Id. The burden of establishing both lies squarely on the movant. Id.

Lynne argues the trial court concluded her move to Iowa was the only significant change in circumstances since the original custodial placement. Lynne's characterization of the trial court's findings is inaccurate. While the trial court relied on the move as one change in circumstances, it did not rely solely upon Lynne's move to support its findings. While it is possible the move alone might support such a finding, see Gould, 488 N.W.2d at 44, the referee's other findings and the extensive nature of the parties' record clearly support the finding that there has been a significant change of circumstances since the original custody determination. We conclude the trial court was not clearly erroneous in finding a significant change in circumstances had occurred since its original custody determination.

Lynne also argues the changes since the original custody determination do not compel a custodial change. Again we are guided by NDRCivP 52(a) and the clearly erroneous standard of review in determining this issue. Barstad, 499 N.W.2d at 587. While we might have concluded differently, our review does not allow us to supplant our judgment for that of the trial court.

The trial court made extensive findings. First, it recognized that permanence and continuity weigh heavily in favor of Lynne. However, the trial court found Rick participated in many of the caretaking duties with Nicholas, and was dedicated to his relationship with his son. In addition, Nicholas has done very well in the community and he is doing quite well in school. Both his maternal and paternal grandparents are in the area. The court also found the relationship between Nicholas and Rick's son from a previous marriage was very close, and that Nicholas would benefit from their interaction. Rick has been the only one to encourage and enroll Nicholas in extracurricular activities, and has sacrificed the time required to ensure Nicholas' participation.

On the other hand, the court specifically found Lynne did not take the initiative for enrolling Nicholas in activities, taking him to the doctor, haircuts, and the like. This pattern would likely be exacerbated by her increased work schedule, and further complicated by the removal of Nicholas from his extended family and from his father, who have taken up the slack in the past.

The court also considered Lynne's persistent frustration of Rick's visitation as a factor. While we agree parental frustration of visitation should not be the sole factor for a change in custody, it nevertheless may be considered. Gravning v. Gravning, 389 N.W.2d 621, 623 (N.D.1986). It has been urged, and we agree, that prior to resorting to a change in custody other methods should be tried to remedy a parent's misbehavior. See Gravning, 389 N.W.2d at 626 (J. Levine dissent) (suggesting the normal means of enforcing visitation is by contempt proceedings or modification proceedings). In the instant case this was repeatedly tried. When frustration of visitation becomes this problematic, it is proper to consider it as a factor to help determine whether a change in custody is required.

The trial court's findings are supported by the record. We cannot say the finding that a significant...

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  • Hammeren v. Hammeren
    • United States
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    ...with likely switch to day shift in deciding change of circumstances did not warrant change of custody from father); Van Dyke v. Van Dyke, 538 N.W.2d 197, 200–01 (N.D.1995) (considering mother's increased work schedule in change of custody from sole custody in mother to joint custody). There......
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