Wright v. Wright, 880145

• Decision Date: 08 November 1988
• Docket Number: No. 880145,880145
• Parties: Tammy L. WRIGHT, Plaintiff and Appellant, v. Lorin G. WRIGHT, Defendant and Appellee. Civ.
• Court: North Dakota Supreme Court

Page 301

431 N.W.2d 301

Tammy L. WRIGHT, Plaintiff and Appellant, v. Lorin G. WRIGHT, Defendant and Appellee.

Civ. No. 880145.

Supreme Court of North Dakota.

Nov. 8, 1988.

Serkland, Lundberg, Erickson, Marcil & McLean, Ltd., Fargo, for plaintiff and appellant; argued by Maureen Holman.

Anseth & Zander, Williston, for defendant and appellee; argued by Janet Holter Zander.

LEVINE, Justice.

Tammy Wright appeals from an order modifying the judgment for divorce changing the custody of her two minor children to their father, Lorin Wright. We reverse and remand.

Tammy and Lorin Wright were married for five years when they were divorced on May 27, 1987. They entered into a stipulation which was incorporated into the divorce decree and judgment. The judgment granted Tammy the primary physical custody of the two minor children, Elizabeth and Nicole. Lorin was granted liberal visitation. At the time of the divorce, Elizabeth was four years old and Nicole was almost three years old.

On August 7, 1987, Tammy brought a motion to change the residence of the girls from Williston, North Dakota to Missouri in order for Tammy to attend St. Louis University School of Law. In her supporting affidavit, Tammy stated that she had made arrangements for the girls to live with her in suburban St. Louis, near her family. She further indicated as a "reasonable possibility" that she would return to North Dakota following her law school graduation. In the event Lorin submitted a "retaliatory cross-motion for a change of custody," Tammy requested the court to grant an interim order authorizing the change of residence.

As was anticipated by Tammy, Lorin subsequently moved to modify the divorce judgment requesting custody of the children. Lorin's supporting affidavit alleged as changed circumstances, his concern with Tammy's inability to provide for the children's physical and emotional health, her inability to provide for an adequate home in St. Louis, her use of drugs, and Lorin's concern for the children's emotional health if they moved from Williston. Lorin's affidavit disclosed that, although most of these conditions existed at the time of the divorce stipulation, he believed he could keep apprised of the situation by living only a few blocks away from the children. Lorin moved for disclosure of Tammy's driving record, compulsory drug screening tests, psychological evaluations for the children, and a home study.

After an initial hearing on August 21, 1987, the court issued an interim order permitting Tammy to temporarily move to Missouri with the children from October 17, 1987 until December 19, 1987. Lorin was granted physical custody of the girls until October 17, 1987. The court continued the hearing until completion of the court-ordered home studies of each parent's respective home, psychological evaluations of Lorin, Tammy and the two children, a drug screening test of Tammy, and drug/alcohol evaluations of both Tammy and Lorin.

After a hearing on January 8, 1988, the trial court found that the conditions surrounding the children and the parties had materially changed. It concluded that the best interests of the children would be best served by the children remaining in Williston, with physical custody in Lorin.

Tammy appealed, asserting that the trial court's decision to change custody was clearly erroneous. We agree.

A trial court's decision to modify custody is subject to the clearly erroneous standard of review. Pitsenbarger v. Pitsenbarger, 382 N.W.2d 662, 664 (N.D.1986); Rule 52(a) NDRCivP. A finding of fact is clearly erroneous when there is no evidence to support it, or when, although there is some evidence to support it, the reviewing court on the entire evidence, is left with a definite and firm conviction that a mistake has been made. Landsberger v. Landsberger, 364 N.W.2d 918, 920 (N.D.1985). A finding of fact is also clearly erroneous if induced by an erroneous view of the law. Manz v. Bohara, 367 N.W.2d 743, 746 (N.D.1985).

There is a distinction between an original award of custody and a decision to modify custody. Miller v. Miller, 305 N.W.2d 666, 671 (N.D.1981). The original custody award revolves solely around the best interests of the children. Id.; NDCC Sec. 14-09-06.1 (1981). But, a request to modify the custody award requires the determination of not one, but two issues in chronological order: (a) whether there has been a significant change of circumstances since the original divorce decree and custody award; and if so (b) whether those changes are such that the best interests of the child would be served by a change in custody. Orke v. Olson, 411 N.W.2d 97, 99 (N.D.1987); Miller, supra. Thus, the first step is to determine if a significant change of circumstances has occurred. Without a significant change of circumstances, there can be no modification of the custody award. See Pitsenbarger, supra; Koller v. Koller, 377 N.W.2d 130 (N.D.1985).

"Changed circumstances" have been described as new facts which were unknown to the moving party at the time the decree was entered. Bergstrom v. Bergstrom, 296 N.W.2d 490, 493 (N.D.1980). For purposes of finality, a prior decree should not be modified without a showing of a significant need for doing so. Id.

The trial court found that there was a material change of circumstances surrounding the children and the parties. To support this determination, the court made three findings: (1) Tammy moved to St. Louis, Missouri to attend college; (2) the psychological evaluation suggested counseling for Tammy, and indicated that her emotional distress could potentially cause emotional problems for the children; and (3) the children's primary home is in Williston, and it is stable; Lorin plans to remain in Williston, whereas Tammy's future is uncertain.

We believe the court's first finding is clearly erroneous. When a custodial parent requests permission to change the residence of the children, a trial court should determine whether that parent will move regardless of the court's decision to allow the children to move. Only in the event a custodial parent will move without the children does that move constitute a change of circumstances for purposes of deciding a companion motion for change of custody. Tammy moved to St. Louis only after the court granted her permission to temporarily move with the children. The court was apprised of the fact and Tammy testified that if her motion for a change of the children's residence were denied, she and the girls "could not be apart." Further, once the court changed custody of the children to Lorin, Tammy dropped out of law school and...