Vetter v. Vetter

• Decision Date: 28 June 1978
• Docket Number: No. 9426,9426
• Citation: 267 N.W.2d 790
• Parties: Colleen Mary VETTER, now Colleen Mary Goedhart, Plaintiff-Appellant, v. Lawrence Charles VETTER, Jr., Defendant-Appellee. Civ.
• Court: North Dakota Supreme Court

Page 790

267 N.W.2d 790

Colleen Mary VETTER, now Colleen Mary Goedhart Plaintiff-Appellant, v. Lawrence Charles VETTER, Jr., Defendant-Appellee.

Civ. No. 9426.

Supreme Court of North Dakota.

June 28, 1978.

John T. Schneider, of Schneider & Hilden, Fargo, for plaintiff-appellant.

Ella Van Berkom, Minot, for defendant-appellee.

PAULSON, Justice.

This is an appeal from the supplemental judgment of the district court of McHenry County entered on January 30, 1976, modifying the original judgment which placed the custody of the minor child, Patrick Joseph Vetter (hereinafter Patrick), in his natural father, Lawrence Charles Vetter, Jr. (hereinafter Lawrence), and which judgment removed custody of Patrick from his natural mother, Colleen Mary Vetter, now Colleen Mary Goedhart (hereinafter Colleen). Lawrence and Colleen were married on April 11, 1970. Patrick was born on April 7, 1971. On December 1, 1975, Lawrence and Colleen entered into a property and custody agreement which placed the custody of Patrick with Colleen, with visitation rights granted to Lawrence. Colleen secured a divorce from Lawrence on the ground of irreconcilable differences on January 30, 1976. The property and custody agreement was incorporated in the decree of divorce.

On August 10, 1977, Lawrence moved to amend the judgment and decree of divorce in order to regain custody of Patrick. The motion was heard before the Honorable Ray R. Friederich on August 22, and on August 26, 1977. After the hearing the district court ordered that the custody of Patrick be vested in Lawrence with visitation rights in Colleen.

Since the divorce, Colleen has continued to reside in the former home of the parties. Colleen's two children, Jessica, age 13, and Sarah, age 11, of a previous marriage which terminated in divorce, resided with her in the Vetter home. His two half-sisters were residing in the parties' home at the time that Patrick was born. Both Jessica and Sarah are supported by their natural father.

During the month of March 1976, Paul Goedhart began living with Colleen and has continued to reside in the Vetter home since that time. Colleen and Paul were married on April 30, 1977. Colleen has been and is employed as a cosmetologist on a regular four-day week basis. She is 32 years of age and in good health. Paul has a camera repair and service business located in the Vetter home.

Lawrence remarried on January 29, 1977, and is employed by the Community Development Office for the City of Minot. His wife, Deborah, is a teacher by profession and is employed by the Makoti School District.

Colleen asserts on this appeal that the district court erred in changing the custody of Patrick to her former husband, Lawrence. She raises the following issues:

(1) Whether the district court issued adequate findings of fact, pursuant to Rule 52(a), N.D.R.Civ.P., as a basis for its conclusions of law and judgment; and

(2) Whether the district court's finding of fact that the circumstances warranted a change of custody in the best interests of the child was clearly erroneous.

A party seeking modification of a divorce decree awarding custody of a minor child must show a change of circumstances or new facts which were unknown to the moving party at the time the decree was entered. Bryant v. Bryant, 102 N.W.2d 800 (N.D.1960). The district court's decision whether to modify the original custody award must be based on what is in the best interests of the child. Jordana v. Corley, 220 N.W.2d 515 (N.D.1974). The factors that the district court should consider when making that decision were enumerated in Goff v. Goff, 211 N.W.2d 850, 853 (N.D.1973), as follows:

"The factors for consideration in determining whether there should be a change of custody are the attitudes of the parents toward the child since the divorce, the age of the child, any change of circumstances, the conduct of the custodial party, the morals of the parents, their financial conditions, and any other matters which bear upon the welfare of the child. Hedman v. Hedman, supra 62 N.W.2d 223 (N.D.1954). However, the paramount considerations in determining to whom the custody of a child shall be awarded after the divorce of its parents are the welfare and best interests of the child. The interests of the parents are important only to the extent of how their interests bear on the question of what is best for the child."

A finding by the district court, on a motion for change of custody, that the best interests of the child would be served by awarding custody of that child to one party as opposed to the other is appropriately dealt with on appeal as a finding of fact, and review of that finding is limited to a determination of whether or not it is clearly erroneous under Rule 52(a), N.D.R.Civ.P. Jordan v. Corley, 220 N.W.2d 515 (N.D.1974); Goff v. Goff,211 N.W.2d 850 (N.D.1973); see, also, Ferguson v. Ferguson, 202 N.W.2d 760 (N.D.1972).

Colleen asserts that the findings of fact which were prepared by Lawrence's attorney were not the findings of the trial judge. This argument is unpersuasive. When the trial judge affixes his signature to the findings of fact they become the findings of the court. Colleen also asserts that the findings of fact were inadequately drafted to provide a basis to support the court's conclusions of law and order for judgment. We disagree. The findings of fact and conclusions of law should be stated with sufficient specificity to assist the appellate court by affording it a clear understanding of the trial court's decision. Fine v. Fine, 248 N.W.2d 838 (N.D.1976). We conclude that the district court's findings of fact are sufficient to be in compliance with Rule 52(a), N.D.R.Civ.P., as this court can deduce from the findings of fact those factors upon which the judgment is based. Matson v. Matson, 226 N.W.2d 659 (N.D.1975).

In the instant case the trial court found that the best interests of Patrick would be served by awarding his custody to Lawrence. Colleen asserts that she should be allowed to retain custody of Patrick because there has been no substantial change in circumstances since the original custody award and because the trial court's reasons for change of custody are light and transient. The ultimate issue is whether the trial court's finding of fact, that a change of custody was in the best interests of Patrick, is clearly erroneous. We shall review the record accordingly.

The trial judge was obviously impressed by the home which the evidence showed Lawrence and Deborah could provide for Patrick. In contrast, the trial judge could conclude from the evidence that in Colleen and Paul's home there was a lack of care for Patrick as well as a lack of discipline. The trial judge was also obviously impressed with the opportunities that Lawrence could provide Patrick to learn good work habits within a family atmosphere where Patrick's father was present, not only to discipline and teach but also to set an example. That a loving father's presence in the home of a boy of this age is valuable is an accepted fact of life. Jordana v. Corley, 220 N.W.2d 515, 521 (N.D.1974).

The testimony revealed that Patrick was left alone during several noon hours. At such time Patrick would telephone his father and state that he was lonesome and had nothing to eat. From the evidence introduced at the hearing, one could reasonably conclude that Patrick was frequently left alone to care for himself with little or no adult supervision.

Lawrence testified that he was deeply interested in the education of his son Patrick. Lawrence contacted the first-grade teacher and the principal of Patrick's school who informed him that Patrick was not prepared to enter the first grade without assistance and counseling. Patrick was evaluated by the North Central Mental Health Clinic and its report, which is part of the record, reveals that Patrick required further preparation before entering the first grade at school. Lawrence requested Colleen to see that Patrick received this necessary preparatory education during the summer months, but Colleen refused on the basis that she would be unable to take a summer vacation if Patrick were attending summer school.

The evidence also revealed that Patrick suffered from a dermatitis condition of his scalp. This condition remained unattended until Lawrence sought medical diagnosis and obtained a prescription shampoo which he gave to Colleen and requested that she use it on Patrick.

From the evidence one could reasonably conclude that Patrick was generally unkempt and unclean.

One could reasonably conclude from the evidence that Patrick was moved from his own room into a hallway in order that Colleen's husband, Paul, could operate his camera repair and service business in Patrick's room.

The evidence also revealed that Lawrence and Deborah live in their own home in Minot. Lawrence is employed by the Community Development Office and is highly regarded by the director and his colleagues. Deborah is a teacher by profession, and she testified that she is very interested in Patrick and would be happy to have Patrick in her home.

The trial judge has the responsibility of determining the credibility of witnesses and weighing the evidence. The trial judge in the instant case is the same judge who presided at the divorce proceedings. He is familiar with all of the facts adduced as a result of the domestic problems of these parties and of their respective fitness as parents, and, accordingly, he determined it was in the best interests of Patrick to place him in the custody of his father. Upon a careful examination of the record, we conclude that the trial court's findings of fact were not clearly erroneous. Accordingly, the judgment of the district court awarding custody of Patrick to his father is affirmed.

ERICKSTAD, C. J., and PAULSON, SAND and VOGEL, JJ., concur.

PEDERSON, Justice, dissenting.

The following were the only findings of fact made in this case:

"I.

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