Willi v. Willi

• Citation: 335 N.W.2d 790
• Decision Date: 24 June 1983
• Docket Number: No. 10358,10358
• Parties: Kevin E. WILLI, Plaintiff and Appellant, v. Sharon D. WILLI, Defendant and Appellee. Civ.
• Court: United States State Supreme Court of North Dakota

Page 790

335 N.W.2d 790

Kevin E. WILLI, Plaintiff and Appellant, v. Sharon D. WILLI, Defendant and Appellee.

Civ. No. 10358.

Supreme Court of North Dakota.

June 24, 1983.

Farhart, Rasmuson, Lian & Maxson, Minot, for plaintiff and appellant; argued by Judith E. Howard, Minot.

McGee, Hankla, Backes & Wheeler, Minot, for defendant and appellee; argued by Russel G. Robinson, Minot.

SAND, Justice.

Kevin Willi (Kevin) appealed from a judgment which, among other things, granted him and the defendant, Sharon Willi (Sharon), an absolute divorce, gave custody of their two children, Tricia and Erica, to Sharon and gave Kevin reasonable visitation rights, including custody of Tricia and Erica for a period of one month per year during any month selected by Kevin by giving a month's notice. Kevin's visitation was on the condition that he furnish a bond in the amount of $5,000.00 in favor of Sharon to guarantee the return of the children after visitation. The judgment also required Kevin to deposit with the Ward County clerk of court the sum of $150.00 per month for child support for each child (Erica and Tricia), to pay Sharon actual attorney's fees in the amount of $2,666.75. On appeal, Kevin contested the custody award of Tricia but not of Erica, the posting of the $5,000.00 bond, and the payment of attorney's fees.

The marriage of Kevin and Sharon on 3 February 1978 at Tucson, Arizona, had its problems from the beginning. Kevin and Sharon had two children, Tricia, born 5 August 1978, and Erica, born 11 February 1980, during their marriage. Prior to this marriage Sharon had had another daughter out of wedlock, Shannon. Kevin was in the Air Force at Minot, North Dakota, as an E-4 Sergeant for four years but has completed his service ¹ and is now living in Michigan.

The primary issue raised on appeal is whether or not the trial court erred in awarding custody of Tricia to Sharon. Kevin essentially contended before the trial court and on appeal that Sharon herself was an abused child and that, as a result, Sharon became and was an abusive parent toward Tricia. On appeal, Kevin did not contest the custody award of Erica to Sharon; however, because of Sharon's alleged abusive conduct toward Tricia, he contended that the trial court erred in awarding Sharon custody of Tricia.

In resolving the custody issue, the best interest and welfare of the child is the overriding and determining factor. Lapp v. Lapp, 293 N.W.2d 121 (N.D.1980); NDCC Sec. 14-09-06.1. The fitness of the parent generally is not the paramount concern in a child custody matter, but it cannot be ignored and becomes a matter of genuine interest whenever the fitness of a parent has a direct bearing on the best interest of the child. See, Larson v. Larson, 294 N.W.2d 616 (N.D.1980); Gross v. Gross, 287 N.W.2d 457 (N.D.1979); Odegard v. Odegard, 259 N.W.2d 484 (N.D.1977).

North Dakota Century Code Sec. 14-09-06.2 sets forth factors to be considered by the court in determining the best interests and welfare of a child and provides as follows:

"For the purpose of custody, the best interests and welfare of the child shall be determined by the court's consideration and evaluation of all factors affecting the best interests and welfare of the child. These factors include all of the following when applicable:

1. The love, affection, and other emotional ties existing between the parents and child.

2. The capacity and disposition of the parents to give the child love, affection, and guidance and to continue the education of the child.

3. The disposition of the parents to provide the child with food, clothing, medical care, or other remedial care recognized and permitted under the laws of this state in lieu of medical care, and other material needs.

4. The length of time the child has lived in a stable, satisfactory environment and the desirability of maintaining continuity.

5. The permanence, as a family unit, of the existing or proposed custodial home.

6. The moral fitness of the parents.

7. The mental and physical health of the parents.

8. The home, school, and community record of the child.

9. The reasonable preference of the child, if the court deems the child to be of sufficient intelligence, understanding and experience to express a preference.

10. Any other factors considered by the court to be relevant to a particular child custody dispute.

"In any proceeding under this chapter, the court, at any stage of the proceedings after final judgment, may make orders about what security is to be given for the care, custody, and support of the unmarried minor children of the marriage as from the circumstances of the parties and the nature of the case is equitable."

Kevin testified and produced evidence supporting his contention that Sharon was not a suitable parent for Tricia because she was abusive to Tricia and that, therefore, he should have custody of Tricia. In rebuttal, Sharon denied the accusation regarding her parenting and testified that she was a good parent to Tricia.

As to the findings of fact by the trial court, Rule 52(a), NDRCivP, applies. The trial court's memorandum opinion, ² in part, stated that:

"The Court is called upon to decide a serious issue from the testimony of two parties, neither of whom it finds to be totally credible. We have convenient lapses of memory on the defendant's (Sharon) part; the plaintiff (Kevin) on the other hand has supernatural recall. The defendant is absolutely ignorant of a grave occurrence that could hardly be forgotten by anyone of the defendant's intelligence; the plaintiff recalls perfectly occurrences that never transpired."

This clearly discloses that the trial court attached no credibility to the "diametrically opposed testimony" of the parties. This, in part, may have prompted the quasi ex parte proceedings ³ conducted by the court in taking the testimony of Timothy Frazier, a witness from Denver and an acquaintance of Sharon, after the close of the trial, and the letter of inquiry the trial judge made to the police department in Tucson, Arizona, relating to an alleged incident that occurred prior to the marriage of Kevin and Sharon.

The trial court found, in its memorandum opinion, that "love, affection, and other emotional ties exist between both parents and their children," and that "both parties have the capacity and disposition to give the children love, affection, and guidance and to continue the education of the children."

The trial court also found that:

"The moral fitness of the parents by today's standards seems acceptable, however again the father's character is flawed when one considers that his checking account was closed because of numerous N.S.F. checks; he took one of the children away without notice to the other parent, irrespective of his pretended honorable reasons; he failed to support his children and wife; this causes the Court to feel that the defendant [Sharon] has the tip in her favor of the scales on this score."

On 2 March 1981 Sharon left Minot with the three girls and went to Denver. Kevin testified that he did not know where Sharon went, but he thought she went to her parents' home in Denver, which he later verified by calling them. The record does not disclose if Kevin gave his consent to Sharon to take the three girls with her to Denver, nor was a court order or legal document authorizing Sharon to take the children to Denver referred to or produced. We must, therefore, assume that Sharon did not take the children to Denver pursuant to or in accordance with a court order. ⁴

In May of 1981 Kevin went to Denver and saw Sharon and brought Tricia back to Minot with him. On 13 July 1981 Kevin served a divorce summons and complaint upon Sharon. ⁵ On 28 July 1981 Kevin obtained a temporary custody order for custody of Tricia. The trial began the latter part of May 1982.

The trial court found as a fact that Kevin took Tricia from Denver to Minot without informing Sharon and has retained custody every since. However, no finding or consideration was given to the authority Sharon had to take the children from Minot to Denver. Furthermore, Kevin obtained an interim order granting him custody of Tricia subsequent to bringing her back from Denver.

The memorandum opinion also noted that Kevin's character was flawed because he wrote numerous NSF checks and failed to support his children and wife. However, in this respect the credit union [Minot Air Force Base] records disclose that either Kevin or Sharon could write checks on the account and that Sharon depleted the account to $10.00 in about seven days during the last days of February and on 2 March 1981. The amount withdrawn was $1,356.96. This may account for the reason why Kevin did not make any child support or spousal support payments.

The court placed considerable importance on an investigation conducted by the Colorado Health Department which was instigated by Kevin because he misinterpreted medical bills. The court noted that the report concluded that the interaction between the mother and daughters (Erica and Shannon) was healthy and that there was no reason to believe that Sharon was abusive or neglectful. Significantly, however, Tricia was not present during this period of time and, consequently, it had little or no bearing on Kevin's main contention that Sharon verbally abused Tricia.

Although the trial court noted that "most of the emphasis in the hearing was placed on the relationship of Sharon vis-a-vis Tricia" the trial court did not make any findings relative to that relationship and the interaction between Tricia and Sharon. The trial court made general findings and conclusions concerning the relationships between both Kevin and Sharon and the two children, Erica and Tricia; however, no specific findings of fact on the disputed testimony regarding the relationship between Sharon...