Wright v. Wright

• Decision Date: 29 November 1990
• Docket Number: No. 900196,900196
• Parties: Tammy WRIGHT, Plaintiff and Appellee, v. Lorin G. WRIGHT, Defendant and Appellant. Civ.
• Court: North Dakota Supreme Court

Page 654

463 N.W.2d 654

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

Civ. No. 900196.

Supreme Court of North Dakota.

Nov. 29, 1990.

Farhart, Lian, Maxson, Howard, Sorensen & Louser, Minot, for plaintiff and appellee; argued by Brenda M. Zent.

Bair, Brown & Kautzmann, Mandan, for defendant and appellant; argued by Dwight C.H. Kautzmann.

GIERKE, Justice.

Lorin Wright appeals from a judgment of the district court denying his request for a change of custody. We reverse and remand for further proceedings.

Tammy and Lorin Wright were divorced in May 1987. The original divorce judgment was based upon a stipulated agreement giving Tammy primary physical custody of the parties' two minor daughters, Elizabeth and Nicole. The parties subsequently litigated their custody rights, culminating in an appeal to this court in Wright v. Wright, 431 N.W.2d 301 (N.D.1988) [Wright I ]. As a result of that litigation, Tammy retained physical control of Elizabeth and Nicole. Many of the facts underlying this custody dispute are set forth in Wright I and will not be repeated here except as necessary to resolve the issues raised on this appeal.

In January 1990, Lorin filed a motion for change of custody, requesting that primary physical custody of Elizabeth and Nicole be awarded to him. Following a hearing, the district court entered a judgment denying the request and Lorin filed this appeal.

In Wright I, supra, 431 N.W.2d at 303, Justice Levine succinctly set forth the appropriate standard for determining a request to modify an original custody award:

"There is a distinction between an original award of custody and a decision to modify custody. ... The original custody award revolves solely around the best interests of the children.... 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.... Thus, the first step is to determine if a significant change of circumstances has occurred." [Citations omitted.]

The burden of showing a change of circumstances which, in the best interests of the child, requires a change of custody is on the party seeking modification. Lapp v. Lapp, 336 N.W.2d 350 (N.D.1983). The term "changed circumstances" has 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). On appeal, this court will not set aside the trial court's determination unless it is clearly erroneous under Rule 52(a), N.D.R.Civ.P. Orke v. Olson, 411 N.W.2d 97 (N.D.1987).

Tammy gave birth to twin girls, Samantha and Jacqueline, in September 1988. During 1989 several reports of child abuse by Tammy toward Elizabeth and Nicole were investigated by social service representatives. The alleged abuse included improper physical discipline, inadequate clothing and feeding of the children, and incidents of leaving the children without appropriate supervision. Janette Krumm, a licensed social worker employed by the Williams County Social Services Board (the Board), investigated the allegations during August 1989 and concluded that there was probable cause for finding physical abuse. In September 1989, Tammy Swallers, a child protection worker employed by the Board, also found probable cause for finding neglect by Tammy in caring for Elizabeth and Nicole.

Tammy herself concedes that during 1989 she "experienced difficulties in her life" including a broken relationship with a boyfriend, depression, and drug usage which ultimately culminated in at least two suicide attempts. Dr. Marco Rancier, a licensed medical doctor practicing psychiatry in Williston, diagnosed Tammy as a substance abuser, including use of cocaine and "other hypnotic medications."

Tammy agreed to receive inpatient treatment for chemical abuse in December 1989. At that time, Swallers filed a petition seeking to place Elizabeth, Nicole, and the twins in shelter care as deprived children. The parties involved, including Lorin, stipulated to temporarily place the twins in foster care and place physical custody of Elizabeth and Nicole with Lorin. The...