Weber v. Weber

• Decision Date: 11 March 1994
• Docket Number: No. 930088,930088
• Citation: 512 N.W.2d 723
• Parties: Richard T. WEBER, Plaintiff and Appellee, v. Colleen A. WEBER, Defendant and Appellant. Civ.
• Court: North Dakota Supreme Court

Page 723

512 N.W.2d 723

Richard T. WEBER, Plaintiff and Appellee, v. Colleen A. WEBER, Defendant and Appellant.

Civ. No. 930088.

Supreme Court of North Dakota.

March 11, 1994.

Thomas D. Fiebiger (argued), Anderson & Bailly, Fargo, for defendant and appellant.

Naomi H.L. Paasch (argued), Strehlow, Bryan and Paasch, Casselton, for plaintiff and appellee.

NEUMANN, Justice.

Colleen A. Weber appeals from a divorce judgment awarding custody of the parties' minor child to Richard T. Weber. We affirm.

Colleen and Richard were married on April 19, 1986, and separated in the fall of 1990. A son, Apollo, was born of this marriage on October 11, 1986. Richard initiated divorce proceedings in June of 1991. Ms. Maureen Holman was appointed Guardian Ad Litem (GAL) for Apollo by interim order dated January 29, 1992. All issues were tried to the court on September 25, 28, and 29, 1992.

Both parties retained psychologists to conduct psychological evaluations, and to present testimony at trial. At trial, Dr. Neil Clark testified for Colleen, and Dr. Helen Wilson for Richard. Based on his examination of Colleen, Dr. Clark testified that Colleen was normally adjusted and therefore would be a suitable and competent parent. Dr. Clark did not meet with Richard or Apollo.

Based on a meeting with Richard and Apollo, and the administration of several tests, Dr. Wilson testified that Richard would be an appropriate and good custodial parent for Apollo, that Apollo was bonded with both parents, and that Richard would provide a good custodial home for the child. Although Dr. Wilson testified that she had never met Colleen, when asked on direct examination whether she had an opinion as to whether or not small children should be placed with the same sex parent, she responded:

"There's quite a bit of literature in that area that's coming out. And in terms of ideal situations actually a single mother and daughter are the best possible relationships in single parent homes. The father is important in cases of both girls and boys. Boys do better in general with their fathers than girls given that all of the things are equal. That is, if both parents are equally capable of parenting, if both parents love the child, the boy is still better off with the father. As a matter of fact this is why I insisted on doing some evaluation because I couldn't make that statement without knowing whether in this particular case the boy would be better off with the father. I assume the mother is perfectly able to parent the child."

Dr. Wilson also prepared a 3 1/2 page report that was received into evidence over Colleen's objection on the grounds that it was hearsay, and that counsel had not had the chance to read the report. A portion of the report states:

"[Richard] is an excellent model for sex appropriate development. ... If the assumption could be made that the mother is equally capable of parenting Apollo, the data obtained in the area of child development become relevant in helping to made [sic] a decision in this case. This child is more likely to experience normal healthy development if placed in the primary custody of his father."

On cross-examination, Dr. Wilson was asked if in fact there were some ethical problems with her making a recommendation on custody when she had not met with both parents. Dr. Wilson responded that there was no ethical problem with her method and testimony. ¹

On December 16, 1992, the trial court issued its Findings of Fact, Conclusions of Law, and Order for Judgment, awarding Richard custody of Apollo. The trial court's findings of fact included the findings that:

"17. Dr. Neil Clark, a licensed psychologist, evaluated and tested the Defendant and testified that the Defendant is a suitable and competent parent. Dr. Clark did not meet or evaluate the Plaintiff or Apollo.

"18. Dr. Helen Wilson, a licensed psychologist, evaluated and tested the Plaintiff and Apollo. Dr. Wilson did not meet or evaluate the Defendant. She found Apollo to be a happy content child who is bonded with both parents. Dr. Wilson testified that the Plaintiff would be an appropriate and good parent for Apollo."

Additionally, findings were made addressing each of the best interest factors of NDCC Sec. 14-09-06.2. Judgment of divorce was entered on December 23, 1992. Colleen's notice of appeal was filed on March 17, 1993.

Before the notice of appeal, Colleen's counsel filed a complaint with the North Dakota Board of Psychologist Examiners (Board) against Dr. Wilson. As a result, the Board entered into a stipulation with Dr. Wilson providing for a letter of reprimand for her testimony at the Weber divorce trial. The letter of reprimand was dated May 3, 1993. ² On July 14, 1993, a majority of this court denied Colleen's motion for leave to make a motion to the trial court under Rules 59 and 60(b) of the North Dakota Rules of Civil Procedure.

On appeal, Colleen raises three issues:

"A. WHETHER THE COURT'S FINDING THAT THE BEST INTERESTS OF THE CHILD REQUIRED CUSTODY TO BE AWARDED TO PLAINTIFF WAS CLEARLY ERRONEOUS.

"B. WHETHER THE COURT'S CUSTODY DECISION WAS CLEARLY ERRONEOUS AND CONSTITUTED HARMFUL ERROR BY CONSIDERING AND RELYING UPON THE IMPROPER CUSTODY RECOMMENDATION OF DR. WILSON, WHO WAS FORMALLY REPRIMANDED BY THE STATE BOARD OF PSYCHOLOGIST EXAMINERS FOR SAID TESTIMONY.

"C. WHETHER THE TRIAL COURT'S ADMITTING DR. WILSON'S REPORT INTO EVIDENCE OVER DEFENDANT'S OBJECTION AND WITHOUT PROVIDING DEFENDANT AN OPPORTUNITY TO READ THE REPORT BEFORE CROSS EXAMINING DR. WILSON CONSTITUTED PREJUDICIAL ERROR."

We address each of these issues in order.

A.

Trial court determinations of child custody are findings of fact. N.D.R.Civ.P. Rule 52(a); e.g., Dschaak v. Dschaak, 479 N.W.2d 484 (N.D.1992). Therefore, we will not disturb this trial court's determination of custody unless we find it to be clearly erroneous. N.D.R.Civ.P. Rule 52(a); e.g., State ex rel. Younger v. Bryant, 465 N.W.2d 155 (N.D.1991). Colleen, as the party asserting error, has the burden of demonstrating that the trial court's child custody determination is erroneous. Bryant, 465 N.W.2d at 158. Determinations are erroneous when upon review of the entire evidence, we are left with a definite and firm conviction that a mistake has been made. E.g., id.

Colleen argues that the trial court's findings regarding custody of Apollo are clearly erroneous. In addition to the contention that the trial court erroneously relied on the allegedly flawed recommendation of the GAL when determining the best interests of the parties' child, Colleen contends that the evidence does not support the court's finding that the best interests of Apollo required custody be awarded to Richard. We disagree.

The GAL's 31 page report was entered into evidence without objection by either party. Included in the report was a summary of the interviews conducted, and an assessment of each of the factors enumerated in NDCC Sec. 14-09-06.2. Colleen's argument that the report was "flawed and erroneous" goes to the weight of the evidence and not its admissibility. See Haus v. Haus, 479 N.W.2d 474, 476 (N.D.1992) (appellant attacked weight to be given testimony of witnesses). In bench trials, the credibility of witnesses and the weight to be given their testimony are both exclusively functions of the trial court. Schmidt v. Schmidt, 325 N.W.2d 230, 233 (N.D.1982); N.D.R.Civ.P. Rule 52(a); see also Johnson v. Johnson, 480 N.W.2d 433, 437-38 (N.D.1992) (recognizing trial court's ability to ascertain the demeanor and credibility of expert witness).

The amount of weight and credibility the trial court ultimately decided to give Dr. Wilson's expert testimony is also a factual question, and the clearly erroneous standard of Rule 52(a) applies. Stillwell v. Cincinnati Inc., 336 N.W.2d 618, 621 (N.D.1983); N.D.R.Civ.P. Rule 52(a). Trial courts are vested with substantial discretion in matters of custody and determinations of the best interests of children, so long as they consider and evaluate all factors that affect children's best interests and welfare as enumerated in Sec. 14-09-06.2. Haus, 479 N.W.2d at 476. We are not persuaded that a mistake has been made, and therefore determine that the trial court's findings of fact are not clearly erroneous.

We recognize and appreciate the difficult decision this trial court made when faced with the job of choosing between two fit parents. Both parties have attempted to provide Apollo with a good home. The trial court, as evidenced by the record, did not conclude that Colleen was not a good parent; rather, the court found that the award of custody to Richard was in Apollo's best interest. See NDCC Sec. 14-09-06.2. Children are fortunate when trial courts have the luxury of choosing between two fit parents for their care and custody. We refuse to retry this case by substituting our judgment for that of the trial court. Haus, 479 N.W.2d at 476. There is sufficient evidence in the record to support the trial court's custody determination. See N.D.R.Civ.P. Rule 52(a).

B.

Colleen argues that the trial court erred in considering the recommendation of Richard's expert, Dr. Helen Wilson. She contends that the trial court should not have relied on the report and testimony of Dr. Wilson because, approximately eight months after trial, Dr. Wilson was reprimanded by the Board for violation of sections 2.01(b), 2.05, 7.02, and 7.03 of its code of ethics in relation to her testimony in the Weber divorce trial.

We agree with Colleen that, in the absence of a complete study of all of the parties, there is logical frailty in applying a general premise to a specific case. See 1 McCormick on Evidence Sec. 206 pp. 923-29 (4th ed. 1992) (expert testimony of profile evidence). However, although the disciplinary action against Dr. Wilson by the Board is part of the record on appeal, it was not a part of the record before the trial court. We will not fault the trial court's findings for failing...