Cаtherine M. BARSTAD, Plaintiff and Appellant, v. James R. BARSTAD, Defendant and Appellee.
Civ. No. 920278.
Supreme Court of North Dakota.
April 27, 1993.
497 N.W.2d 584
I was skeptical of the analysis when it was introduced by an excerpt from Couch on Insurance 2d that when there is a public policy against covering punitive damages, there should be no coverage for punitive damages, “absent specific language in the policy extending coverage for punitive damages.” I was afraid we were going to follow Couch, not our state and case law. Even Couch does not say that courts should first construe the insurance contract in a way that makes it violate public policy, and Couch does not suggest that courts should supply the “specific language in the policy” that extends coverage for punitive damages. Yet, that is what the majority does. First, it creates the ambiguity; second, it construes that ambiguity against the insurer so as to provide cоverage for punitive damages; third, it recognizes that covering punitive damages conflicts with public policy; and as the grand finale, the majority fashions a solution for the problems of its own making: it converts a liability insurance policy, that was purchased to and intended to provide indemnity, into a surety bond, not contracted for, and presumably not paid for.
The plain language in the сontract, the public policy of our State, clearly expressed in our statutes, the case law cited by the majority as well as Haser v. Maryland Casualty Co., 78 N.D. 893, 53 N.W.2d 508 (1952), preclude the result here. A rose by any other name is still a rose. Payment of punitive damages by Continental is still against public policy.
I respectfully dissent. I would affirm the trial court.
Maureen Holman of Serkland, Lundberg, Erickson, Marcil & McLean, Ltd., Fargo, for defendant and appellee.
LEVINE, Justice.
Catherine Barstad (Cathy) appeals from an amended judgment changing custody of her son, Ryan, to Ryan‘s father, James Barstаd (Jim). We reverse and remand.
At the time of Jim and Cathy‘s marriage in October 1982, Cathy‘s son, Ryan, was three years old. Jim adopted Ryan soon after their marriage. The couple‘s second son, Bradley, was born in March 1983. Jim and Cathy were divorced in November 1988. Cathy received custody of the two boys and Jim received supervised visitation because of the manifestations of his behavioral disorder of еxhibitionism, a condition which was deemed treatable but not curable. At the time of the divorce, Jim had a record of four convictions for indecent exposure between 1981 and 1987, and for the years 1973 to 1985, three convictions of disorderly conduct, one conviction of lying-in-wait and one conviction of making an obscene or harassing telephone call. After the divorce, an additional incident occurred in 1988.
After receiving treatment, Jim petitioned for unsupervised visitation in February
In February 1992, Cathy told Jim of her engagement to Chаrles Koval and asked for Jim‘s consent to her moving with the children to Charles’ residence in Crookston, Minnesota. At first, Jim consented to the move, but he later withdrew that consent and moved to gain the boys’ custody. According to Jim, he sought custody for a variety of reasons, the foremost of which were the boys’ statements, obtained in response to Jim‘s interrogation, that they preferred to live with him in Fargo. He also believed they would benefit from their continued involvement in the Fargo sports community and that he could help improve Ryan‘s poor academic performance. Jim was uneasy, as well, about how the boys would adapt to living with Charles’ three children.1
Cathy subsequently filed a motion to change the boys’ residence to Crookston, Minnesota. She claimed the move was in the boys’ best interests, that her fiance, Charles, would have a positive influence on them, and that the short distance between Crookston and Fargo would not affect Jim‘s visitation rights. After a change in Cathy and Charles’ plans, Cathy amended her motion to state her proposed residence as Shelly, Minnesota, a small community approximately 38 miles from Fargo.
With both motions filed and a hearing schеduled, Jim, Cathy, Ryan and Bradley, at Jim‘s request, underwent custody evaluations from psychologist Neil Clark. Dr. Clark prefaced his “Custody Evaluation Summary” with the following remarks:
“With regards to background (psychosocial history) Ms. Barstad presents a normal background, and Mr. Barstad has had several relevant problems: physical abuse as a child, inpatient and outpatient psychiatric treatments, and nine law enforcement convictions. None of his historical problems showed a direct impact on either of the children. They have not been victimized nor abused. Generally, in custody related issues a period of two-three years since the last occurrence is considered a remission of the situation. That period of time has been established for Mr. Barstad. This examiner would point оut, however, that there have been previous periods of remission, followed by reoccurrence.”
Apparently treating his custody evaluations for this modification proceeding no differently than he would for an original divorce proceeding, Dr. Clark concluded that Cathy and Jim were “suitable and competent parents” and that neither posed “any dangers to the children.” In recommending Ryan‘s placement with Jim, Dr. Clark explained:
“Ryan‘s current personality adjustment is superior. He currently feels more closely attached to his father. He states a clear preference for living with his father. He wants to maintain his involvements in the Fargo community (friends, sports, schools). When asked if Ms. Barstad were to remain in Fargo, would his preference for living with his father change, he replied, ‘no‘. Ryan reported more mutual activities with his father.”
Dr. Clark thus recommended, based on “the preference of the child, the extent of community roots, continuity of schools/sports/friends, the developmental age of the child, the mixed affect (conflicts) of the siblings, and the prospects of readjusting to a new blended family, new school, [and] new friends,” that Jim receive custody of Ryan and Cathy retain custody of Bradley.
Cathy had the boys examined by another psychologist, Dr. Berch R. Offutt. Dr. Offutt made no recommendation regarding custodial placement and did not comment on Dr. Clark‘s custody evaluation. However, Dr. Offutt observed that Ryan, who was twelve years old at the time, was “under significant stress regarding his present family situation” and was “attempting to
A hearing on the parties’ motions was conducted in June 1992. At the close of the proceeding, the court orally granted Cathy‘s motion to move, suggested that she would receive custody of Bradley, but retained the issue of Ryan‘s custody under advisement. Cathy married Charles on July 11, 1992. On August 10, 1992, the court issued its memorandum opinion, finding that there had been a significant change of circumstances and that it was “in the interests of the minor children” that Jim take custody of Ryan, that Cathy retain custоdy of Bradley, and that visitation be modified. The court‘s findings and conclusions of law were incorporated into its third amended judgment. Cathy has appealed from that judgment, challenging the change of Ryan‘s custody.
A trial court‘s decision to modify custody is a finding of fact subject to the clearly erroneous standard of review. Blotske v. Leidholm, 487 N.W.2d 607 (N.D. 1992). A finding of fact is clearly erroneous if it is induced by an erroneous view of thе law, if there is no evidence to support it, or if, 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. Id.; see
A request to modify custody requires the determination of 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 compel or require, in the best interests of the child, a change of custody. Delzer v. Winn, 491 N.W.2d 741 (N.D. 1992).
The court‘s memorandum opinion was issued on August 10, 1992, only shortly after this court‘s opinion in Blotske, on July 28, 1992, and several months before we decided Delzer v. Winn on November 5, 1992. Blotske and Delzer capsulize the proposition that in a change of custody proceeding, the child‘s stability with the custodial parent is a primary considerаtion, and the statutory factors of
So the question becomes whether the trial court‘s assessment in this case comports with the rule of Blotske and Delzer. We believe it does not; therefore, we reverse the order transferring Ryan‘s custody to Jim.
The trial court, in effect, identified three significantly changed circumstances: Cathy‘s marriаge and move to Shelly, Minnesota; the move‘s effect on the present visitation scheduling; and Ryan‘s “reasonable and knowledgeable preference to reside with Jim.”
As to the first significant change, Cathy‘s move and remarriage, we have said that a “move to another state does not, by itself, compel a change of custody. If the trial court approves the move, even after the fact, the move does not dictate a change of custody.” Gould v. Miller, 488 N.W.2d 42, 44 (N.D. 1992). Nor does remarriage dictate a change of custody. Id. We thus look to the other factors the trial court found were significant and required a change of custody.
We come to the effect of Ryan‘s preference to live with his father. The trial court found that twelve-year-old Ryan exercised a “reasonable and knowledgeable” preference to live with his father in Fargo. As a consequence of this preference, Ryan was separated from his younger brother. While we have condoned divided custody, we have done so cautiously, always recognizing that it is a solution called for by special circumstances. E.g., Gravning v. Gravning, 389 N.W.2d 621 (N.D. 1986). The court did not itself interview Ryan. Instead, it depended on Jim‘s testimony and that of the experts to whom Ryan voiced his preferenсe, although the trial judge apparently disregarded Dr. Offutt‘s warning to give no weight to that preference.
The preference of a child who is capable of intelligently choosing between his parents for custody is a relevant factor in determining the best interest of the child.
Although age is not the exclusive indicator of a child‘s maturity and capacity to make an intelligent choice, generally, a child‘s preference is entitled to more weight as he or she grows older. See Mertz, supra. And indeed, it would be foolhardy to ignore the input of an older teenager‘s firmly held preference in the resolution of his or her custody. But, a child‘s preference, in a custody modification proceeding, to remain where his friends are and where his familiar school and community are, while “understandable,” should not dictate custody when that child is twelve years old. See, e.g., Thomas, supra at 435; Novak, supra. Indeed, that sort of preference is all but predictable. Thomas, supra. A twelve-year-old‘s desire to remain involved in homеtown sports activities is a “goal[] and ambition[],” Mertz, supra at 97 n. 2, that cannot trump the superior benefits to his best interests that we have recognized to inhere in the finality of litigation and the stability
We conclude that the decision to change custody was induced by an erroneous view of the law and, therefore, was clearly erroneous. Reversed and remanded.
MESCHKE and SANDSTROM, JJ., concur.
VANDE WALLE, Chief Justice, dissenting.
I might not have reached the same decision as the trial court in this instance, but I am reluctant to reverse the trial court in a matter in which there is not clearly a “right” or a “wrong” solution. In addition, I write separately to note my concern with the majority‘s analysis which appears to imply that because Cathy‘s move and remarriage may not alone be sufficient to compel a change of custody, they are no longer to be considered. Standing alone they may not be sufficient, but they surely remain a part of the mix of circumstances to be considered with the other existing circumstances in reaching a decision.
Cases involving factual precedents are of limited value. Blotske v. Leidholm, 487 N.W.2d 607 (N.D. 1992) and Delzer v. Winn, 491 N.W.2d 741 (N.D. 1992), are significant but not controlling. They serve only to point out the obvious, i.e., the same factors do not necessarily deserve nor receive the same weight in each case. The factor which may be controlling in one instance may not be as significant in another instance. Blotske involved a change of custody by the trial court because of the interference by the custodial parent with the visitation rights of the noncustodial parent. We reversed. Two of the justices concurred in the result because “visitation problems are ‘better remedied at first by resort to a more rigid visitation schedule, rather than a change of custody.‘” 487 N.W.2d at 612 (Vande Walle and Johnson, JJ., concurring specially). Chief Justice Ralph Erickstad concurred in the result noting his concern that the majority opinion “has over emphasized the importance we have previously accorded the continuity of the custodial parent child relationship.” 487 N.W.2d at 613 (Erickstad, C.J., concurring in the result).
Delzer produced the opposite result from this court, i.e., we reversed a court order changing custody because the positive changes in the noncustodial parents life did warrant a change of custody interrupting the continuity and stability of the present custodial arrangement. Two Justiсes signed the majority, one Justice concurred specially, and two Justices dissented.
If these cases are illustrative of anything, it is that this court should not attempt to substitute its judgment for that of the trial court, even if we disagree with the result, where the trial court has reached a reasoned decision that does not rely on impermissible factors. I recognize that such an approach may make the trial court‘s decision nearly nonreviewable. Perhaps that is the way it should be where we have no opportunity to view the parties and there is no clearly “right” or “wrong” solution.
Finally, insofar as the preference of the child is concerned, I adhere to my position that judges should not “trivialize the preference of a 13-year-old child” to remain with a parent in a city where he has lived all of his natural life, and where he is close to extended family. Novak v. Novak, 441 N.W.2d 656 at 659 (N.D. 1989) [Vande Walle, J., concurring specially]. Despite my concern in that case, I concurred in the result affirming the trial court‘s decision, recognizing that “the preference is not controlling.” Id. We should also recognize
NEUMANN, Justice, dissenting.
I respectfully dissent.
I agree with everything this Court said in Blotske v. Leidholm, 487 N.W.2d 607 (N.D. 1992), and Delzer v. Winn, 491 N.W.2d 741 (N.D. 1992), regarding the importance of maintaining a stable relationship between a child and the custodial parent, and I agree that there should be a presumption in favor of maintaining such a relationship. Id. at 747-49 (special concurrence by J. Levine).
But, in this case, the custodial parent has elected to move to a new town with a new school system, and to acquire a new spouse, all at once. It is difficult to imagine what more could be done to destabilize the lives of hеr children. While I do not suggest that custodial parents cannot move or remarry, I certainly think that the presumption favoring stability can be largely offset when such destabilizing life choices are made.
Were these the only facts presented to the trial court, I probably would not dissent. At most, the destabilizing effect of the move and the remarriage can only cancel the presumption in favor of stability, and, as Justice Levine wrote in her concurrence in Delzer, “we ought to resolve close cases in favor of continuing the custody with the custodial parent in order to protect the desired continuity....” Id. at 747. But here we have the additional factor of expert testimony recommending the custodial change. While I still might not have reached the same conclusion as the trial court, that, I am told by my new colleagues, is not the standard of review in this Court. Applying the appropriate standard, once the presumption favoring stability is cancelled by Catherine‘s destabilizing choices, and the expert testimony is considered, I cannot say that I am left with a definite and firm conviction that a mistake has been made. I would affirm.