Wenzel v. Wenzel, 900347
| Decision Date | 07 May 1991 |
| Docket Number | No. 900347,900347 |
| Citation | 469 N.W.2d 156 |
| Parties | Vicki WENZEL, Plaintiff and Appellant, v. Robert WENZEL, Defendant and Appellee. Civ. |
| Court | North Dakota Supreme Court |
Michael R. Lochow, Fargo, for plaintiff and appellant.
Joanne H. Ottmar of Ottmar & Ottmar, Jamestown, for defendant and appellee.
Vicki Wenzel appealed from a second amended judgment entered in the district court for Stutsman County. The second amended judgment changed the custody of the parties' minor child from Vicki Wenzel to Robert Wenzel and provided that Vicki was to pay child support to Robert in the amount of $300 per month. We affirm.
Vicki and Robert were divorced January 23, 1985. In the original divorce decree Vicki was granted custody of the couple's only child, Kory, born October 15, 1977. Robert was required to pay child support in the amount of $200 per month during the months he was working. The original judgment was subsequently amended to modify the amount of child support Robert was required to pay.
In August of 1989, Robert brought a motion to again amend the judgment to change custody of Kory from Vicki to Robert. The trial court issued a temporary order which granted Robert custody of Kory and required Vicki to pay child support in the amount of $150 per month. The duration of the temporary order was six months, during which time court-ordered studies of the homes of both parties and a psychological evaluation of the child were conducted.
In January of 1990, Vicki moved the trial court to reconsider the temporary order. A hearing was held and, by a memorandum decision issued March 30, 1990, the trial court continued the custody arrangements specified in the temporary order and set Vicki's child support obligation at $300 per month. The divorce judgment was amended July 23, 1990, consistent with the memorandum decision.
Vicki has raised three issues on appeal. The first issue is whether there has been a substantial change in circumstances which, in the best interests of the child, would warrant a change of custody. The second issue is whether the trial court's prior judicial involvement in Vicki's domestic disturbances affected its ability to objectively consider the motion for change of custody. The final issue is whether the trial court erred in establishing Vicki's child support obligation under the second amended judgment.
On appeal, we will not set aside the decision of the trier of fact unless it is clearly erroneous under Rule 52(a), NDRCivP. Mertz v. Mertz, 439 N.W.2d 94 (N.D.1989). We have held that a finding of fact is clearly erroneous if we are left with a definite and firm conviction that a mistake has been made or if the finding was induced by an erroneous view of the law. Mertz, supra.
A decision on a motion for the modification of a custody award requires the determination of two issues. The first issue is whether there has been a significant change in circumstances. Mertz, supra; Wright v. Wright, 463 N.W.2d 654 (N.D.1990). If the court finds there has been a significant change of circumstances, the second issue the court must decide is whether that change is such that the best interests of the child would warrant a change in custody. Wright, supra. The party seeking modification has the burden of showing a change of circumstances which, in the best interests of the child, would warrant a modification. Wright, supra.
In the temporary order issued in this case, the trial court set forth its findings of fact and conclusions of law wherein it determined that there had been a substantial change of circumstances since the entry of the original divorce decree. The changed circumstances included Kory's expression of a preference to live with Robert and, more importantly, Vicki's relationship with her boyfriend, Charles Strankowski, and Kory's fear of Strankowski.
Vicki and Strankowski have dated one another, periodically, since the divorce. Vicki and Strankowski cohabited for a time, during which he severely beat her. Although Kory did not see the beating, he was in the home at the time and heard the entire incident. As a result of this incident, Kory is fearful of Strankowski. Vicki ended the relationship following the beating, but she was again dating Strankowski at the time the temporary order was issued and was engaged to him at the time she moved the trial court to reconsider the temporary order. The serious relationship which has developed between Vicki and a man her child understandably fears is a significant change of circumstance and the trial court was not clearly erroneous in so finding.
The second step in the analysis is to determine whether the change in circumstances is such that the best interests of the child warrant a change in custody. Given the existence of recent domestic violence exhibited by the man who may become Kory's stepfather, and Kory's very real and understandable fear of that man, the trial court did not err in finding that it was in the child's best interests to live with Robert.
Vicki contends that the trial That protection order was issued by Judge Paulson against Strankowski shortly after he had severely beaten Vicki. Vicki argues that under Rule 59(b), NDRCivP, she should be granted a new hearing due to the trial court's prejudice against Strankowski.
The purpose of a motion for a new trial is to give the trial court an opportunity to correct errors without subjecting the parties and the appellate courts to the time and expense involved in an appeal. Waldner v. Peterson, 447 N.W.2d 217 (Minn.App.1989). Vicki never made a motion for a new trial, 1 however, nor did she move for relief from the judgment, pursuant to Rule 60(b)(vi), NDRCivP. Vicki made no demand for a change of judge, pursuant to NDCC Sec. 29-15-21, until this case was already on appeal to this court.
Vicki has thus failed to raise in ...
To continue reading
Request your trial
-
Sack v. Sack
...of the Ruff-Fischer guidelines. We have repeatedly refused to address issues raised for the first time on appeal. E.g., Wenzel v. Wenzel, 469 N.W.2d 156, 158 (N.D.1991) ("We have repeatedly held that issues not raised in the trial court cannot be raised for the first time on appeal."). Furt......
-
Zundel v. Zundel
...bias in the trial court precludes our review on appeal." Molitor v. Molitor , 2006 ND 163, ¶ 12, 718 N.W.2d 13 (citing Wenzel v. Wenzel , 469 N.W.2d 156, 158 (N.D. 1991) ). Further, "[a]dverse rulings alone are not evidence of judicial bias or partiality." Lucas v. Riverside Park Condos. Un......
-
Cermak v. Cermak
..."We have repeatedly held that issues not raised in the trial court cannot be raised for the first time on appeal." Wenzel v. Wenzel, 469 N.W.2d 156, 158 (N.D.1991). Thus, refuse to consider the issue for the first time here. 6 ¶16 Accordingly, we hold a recipient spouse's unmarried cohabita......
-
Wisnewski v. Wisnewski
...district court. "The failure to raise the issue of judicial bias in the trial court precludes our review on appeal." Wenzel v. Wenzel , 469 N.W.2d 156, 158 (N.D. 1991). To Alicia Wisnewski's argument that the court's findings and rulings show bias, "[a]dverse rulings alone are not evidence ......