Wetch v. Wetch

• Citation: 539 N.W.2d 309
• Decision Date: 31 October 1995
• Docket Number: No. 950047,950047
• Parties: Cheryl WETCH, Plaintiff and Appellant, v. Kirk A. WETCH, Defendant and Appellee. Civ.
• Court: United States State Supreme Court of North Dakota

Page 309

539 N.W.2d 309

Cheryl WETCH, Plaintiff and Appellant, v. Kirk A. WETCH, Defendant and Appellee.

Civ. No. 950047.

Supreme Court of North Dakota.

Oct. 31, 1995.

William S. Kirschner of Kirschner Law Office, Fargo, for plaintiff and appellant. Appearance by Cheryl Wetch.

Monty G. Mertz of Mertz Law Office, Fargo, for defendant and appellee.

SANDSTROM, Justice.

Cheryl Wetch appealed in this divorce case from a Second Amended Judgment, dated October 21, 1994, changing custody of the parties' two minor daughters from Cheryl Wetch to their father, Kirk Wetch. Because the trial court erred in refusing to consider custody-related evidence predating an April 5, 1994, Amended Judgment and Decree, we reverse and remand to redetermine custody.

I

Cheryl and Kirk Wetch were married in 1987. Their daughter Cassandra was born in 1989, and their daughter Kaley Anne was born in 1991. The parties were divorced on March 12, 1993, and by stipulated agreement Cheryl Wetch received custody of Cassandra and Kaley Anne, and Kirk Wetch received liberal visitation rights. About one year later, a dispute arose when Cheryl Wetch wanted to move with the children to Tennessee. Kirk Wetch objected to the move and sought physical custody of the girls. The matter was resolved by stipulated agreement, and an amended judgment was entered on April 5, 1994, permitting Cheryl Wetch to retain custody of the children but restricting her to reside within 60 miles of Fargo-Moorhead.

During the summer of 1994, Cheryl Wetch, without permission of Kirk Wetch or the trial court, moved with the children to Tennessee. Kirk Wetch filed a motion for change of custody. In deciding the motion, the trial court specifically stated it would not consider any evidence of the parties' activities or conduct prior to the April 5, 1994 amended judgment. After conducting an evidentiary hearing on September 7 and 8, 1994, the court granted the motion, awarding Kirk Wetch physical custody of the girls. Cheryl Wetch appealed.

The district court had jurisdiction under Art. VI, Sec. 8, N.D. Const., and N.D.C.C. Secs. 27-05-06(2) and 14-05-22(1). We have jurisdiction under Art. VI, Sec. 6, N.D. Const., and N.D.C.C. Sec. 28-27-01. The appeal was timely under Rule 4(a), N.D.R.App.P.

II

The dispositive issue Cheryl Wetch raises on appeal is whether the trial court erred in refusing to consider custody evidence relating to conduct and events occurring before the April 5, 1994 judgment. When a trial court makes an original award of custody between parents in a divorce proceeding, it must determine the single issue of what is in the child's best interests. Delzer v. Winn, 491 N.W.2d 741, 743 (N.D.1992). When the court considers a request to modify an original custody award, however, it must determine two issues: (1) whether there has been a significant change of circumstances since entry of the original divorce decree and custody award; and, if so, (2) whether the changed circumstances require in the best interests of the child custody be modified. Anderson v. Anderson, 448 N.W.2d 181, 182 (N.D.1989).

During oral argument, Cheryl Wetch conceded her change of residence to Tennessee constituted a significant change of circumstances. She claims the change of circumstances, however, does not justify a change of custody, because prior to the divorce Kirk Wetch perpetrated domestic violence toward Cheryl Wetch and the girls, raising a presumption against Kirk Wetch getting custody. See N.D.C.C. Sec. 14-09-06.2(j). ¹ Kirk Wetch responds res judicata precludes the trial court from considering parties' pre-divorce conduct. Alternatively, Kirk Wetch asserts the trial court should have considered evidence of Cheryl's pre-divorce misconduct, including physical abuse of Kirk Wetch and neglect of the children.

The trial court has broad discretion on evidentiary matters. State v. Martinsons, 462 N.W.2d 458, 460 (N.D.1990). On appeal, we will not overturn a trial court's decision admitting or excluding evidence on relevancy grounds unless the trial court has abused its discretion. State v. Gefroh, 495 N.W.2d 651, 653-654 (N.D.1993); Blotske v. Leidholm, 487 N.W.2d at 610. A trial court also has substantial discretion in custody matters, providing the court evaluates all factors affecting the children's best interests and welfare as enumerated under N.D.C.C. Sec. 14-09-06.2. Weber v. Weber, 512 N.W.2d 723, 727 (N.D.1994); see also Blotske v. Leidholm, 487 N.W.2d at 610.

Kirk Wetch asserts the doctrine of res judicata precluded the trial court from considering custody-related evidence predating the April 5, 1994 amended judgment. Res judicata, or claim preclusion, prohibits the relitigation of claims or issues that were raised or could have been raised in a prior action between the same parties or their privies, and which were resolved by final judgment in a court of competent jurisdiction. Minex Resources, Inc. v. Morland, 518 N.W.2d 682, 687 (N.D.1994). Under res judicata principles, it is inappropriate to rehash issues which were tried or could have been tried by the court in prior proceedings. See Hofsommer v. Hofsommer Excavating, Inc. 488 N.W.2d 380, 383 (N.D.1992). The doctrine, however, should be applied as fairness and justice require but should not be applied so rigidly as to defeat the ends of justice or to work an injustice. Borsheim v. O & J Properties, 481 N.W.2d 590, 597 (N.D.1992). The doctrine should not be strictly applied to preclude the trial court from hearing for the first time relevant custody-related evidence bearing on considerations of what is in a child's best interests. Randolph v. Dean, 27 Ill.App.3d 913, 327 N.E.2d 473, 474-475 (1975). See also Eklund v. Eklund, 538 N.W.2d 182, 185 (N.D.1995) (The doctrine of material change of circumstances "has given a limited finality effect to a child support order, while leaving the order 'open to subsequent revision' for the best interests of the children.") Under proper circumstances custody issues, although decided in the original divorce action, may be reexamined and a court order modified in the continuing jurisdiction of the trial court. Fichter v. Kadrmas, 507 N.W.2d 72, 74 (N.D.1993).

We have not previously decided whether it is error in a change of custody proceeding for a trial court to refuse to consider evidence of relevant custody factors occurring prior to entry of the original custody decree. There is, however, substantial persuasive authority from other courts that when the original custody decree is entered upon default or based upon a stipulation of the parties, a trial court errs by refusing to consider pre-divorce conduct on the change-of-custody issue. Handley v. Taylor, 638 So.2d 8 (Ala.Civ.App.1994); Wilson v. Wilson, 408 So.2d 114, 116 (Ala.Civ.App.1981), cert. denied, Ex Parte Wilson, 408 So.2d 117 (1982); Randolph v. Dean, 27 Ill.App.3d 913, 327 N.E.2d 473, 475 (1975); see also Farr v. Newton, 239 Neb. 179, 474 N.W.2d 683, 686 (1991); Timmons v. Timmons, 94 Wash.2d 594, 617 P.2d 1032, 1035-36 (1980); Warren v. Warren, 191 N.W.2d 659, 661 (Iowa 1971); Wendland v. Wendland, 29 Wis.2d 145, 138 N.W.2d 185, 192 (1965); Stratton v. Stratton, 87 Idaho 118, 391 P.2d 340, 342 (1964); Stewart v. Stewart, 86 Idaho 108, 383 P.2d 617, 619-620 (1963). In Wilson, at 116, the Alabama Court of Civil Appeals reversed the trial court's denial of the ex-husband's petition for change of custody and remanded for a new trial on the...