*1 H9 BERGSTROM, Plaintiff Appellee, BERGSTROM, Defendant Appellant, child, a minor Litem, Guardian Ad L. Cameron
Clemens, Defendant.
Civ. No. 10094.
Supreme Court North Dakota.
May Bismarck,
Chapman Chapman,
for de-
&
appellant
Bergstrom;
fendant and
argued by
Chapman,
Daniel J.
Bismarck.
*2
1981,
a motion for
Nodland,
July
Astrid made
Lucas & On
Conmy,
Lundberg,
sought a transfer of
Bismarck,
appellee
in which she
Schulz,
plaintiff and
an order
for
year and
during the school
by
Irvin B. Nod-
to Alan
argued
Bergstrom;
Alan
during the
custody of Ida
land,
that she have
Bismarck.
further
months. Astrid
summer vacation
Christensen, Bismarck, for defend-
Carma
take
right
have the
requested that she
child, by
minor
Bergstrom, a
ant
is then
“wherever she
the child to
[Astrid]
Clemens;
litem,
L.
Cameron
guardian ad
is within the
living,
or not that
whether
appeal.
on
argued
not
or briefed
moved that
Astrid also
United States”.
for failure to
contempt
Alan be held
PAULSON, Justice.
September
comply with the order
Slettemoen,
formerly Astrid
Astrid
two-week summer
relating to Astrid’s
a
or-
Bergstrom, appeals from modification
con-
motion also
with Ida. The
vacation
29, 1981,
July
of the District
der dated
the costs and
tained a
for
We affirm.
County.
of Morton
Court
awarded to
fees which had been
episode in the
marks another
This case
5, 1979,
in the December
the trial court
Bergstrom
custody dispute over Ida Marie
July
Frank Heller on
trial. Astrid married
parents
Bergstrom
Alan
between her
16, 1981.
court’s most recent
Our
Slettemoen.
motion, Alan
response to Astrid’s
i.e., Berg
parties,
involving these
opinion
permanent
him
granting
order
sought an
(N.D.
Bergstrom, 296
strom
Ida,
visitation
with reasonable
custody of
occurred
1980),
the facts as
states
States,
continental United
restricted to the
through December of 1979.
trial court
hearing,
a
to Astrid. After
490, we
dated
a modification order
issued
reversed a
of the District Court
Alan
custody of Ida to
granting
dur-
awarded total
County
of Morton
which had
during the
year and to Astrid
ing the school
which had
custody of Ida to Astrid and
“re-
summer vacation months.
Instead,
visitation to Alan.
granted limited
. . .
remove Ida
quest to
split custody
we
to Astrid
awarded
purposes of visi-
from
United States
conditioned,
part,
on Astrid’s main-
The trial court
denied.”
tation ...
[was]
within the
tenance for Ida of a residence
of visita-
periods
“additional
granted Astrid
Following the issuance of
United States.
upon
year
the school
during
tion” with Ida
remand hear-
our
which directed a
Astrid’s motion
notice to Alan.
reasonable
County,
of Morton
ing, the District Court
contempt and
held in
remand,
September
order on
issued an
previ-
attorney fees and costs
payment of
17, 1980,
to Astrid
granting custody of Ida
was denied.
ously awarded
during
year and to Alan
during the school
question for consideration
The first
A
months.
detailed
the summer vacation
court erred
or not the trial
whether
and in-
schedule was formulated
visitation
hold Alan
Astrid’s motion to
Septem-
corporated within the trial court’s
comply
alleged failure to
contempt for an
17, 1980,
order the trial
ber
order.
September
with the court order of
“shall be enti-
court also ruled that Astrid
a
designate
granting
Astrid the
period
week
designate
tled to
a two
Ida.
vacation with
two-week summer
summer months of
vacationing with
year
purposes
each
above,
issue
provision
noted
As
the child”.
September
in the order of
contained
1980, stated:
mother, As-
Subsequently, Ida and her
be entitled
Bergstrom . .. shall
“Astrid
trid,
Washington,
residence in
established
period of visita-
two week
designate
capi-
the Nation’s
D.C. Alan also moved to
months of each
during the summer
marry
tal. Astrid later determined
vacationing with
purposes of
Heller,
year for
and works in
Frank
a man who lives
Dubai,
Emirates.
child.”
Arab
one of
United
record,
tempt
appears
From the
that the first
committed
when the evidence
mention of Astrid’s desire to take a two-
willful and
vio-
shows
inexcusable intent to
week vacation out of the United States
late the order of the court.
Raszler
with Ida was at a
which was
held
Raszler,
Superior
D.C.,
Washington,
Court of
determining
The matter of
whether
8, 1981. At
time
June
Astrid’s attor-
has
contempt
been committed is within
*3
requested
ney
that Astrid be
to
allowed
the sound discretion
and
19,
to Norway
take Ida
on June
1981. The his decision should not be disturbed unless
D.C.,
Superior
Washington,
Court of
denied there is a
plain abuse
discretion. See
affidavit,
request.
this
In his
Alan states
generally Brierly
Brierly,
An The case is to the appeal will lie Supreme to the Hoster, supra, question Court from an order issue. the of the finding a defendant guilty contempt. propriety of civil Red River award was before this Valley Forks, Brick Corp. City appeal by Grand court on direct losing party. (1914). N.D. case, N.W. 876 awarding Con- the instant the judgment provision awarding The costs As contained was noted February states, n.1, judgment per- the tinent appeal erroneously taken part: from the order instead of from the district court judgment. appeal provide did notice “X appeal that the order was from “each of the required pay “That the father is all every dispositional part and guage lan thereof’. The action, defending the mother’s costs of this Bergstrom in the states that including fee, attorney’s her witness fees and judgment “The is reversed and the case is re her costs of travel and subsistence for the may necessary manded comply such as action delivery and for her costs incurred in Bergstrom, supra herewith.” of the child to the mother N.W.2d at 497. guardian reported Ida “did not and costs was reversed
attorney fees
490),
supra 296
(Bergstrom,
appeal
feel she
trust
mother to
could
[her]
seeking
these
fees
motion
and a
According
guardi-
to her
bring
back”.
subsequent
was made
and costs
an, Ida’s
her mother extends
mistrust of
February
court’s reversal
involving travel
fi-
only to
matters
which included such award.
judgment
guardian
nances.
testified that
love”
expressed
great deal of
and trust
“a
Generally, the
a reversal
effect of
judgment
is vacated
areas.
is that
for her mother in other
in the
parties
put
posture
are
same
and the
had told
that she
Ida that
testified
as
were in before
live and
“it was
for me to
main-
impossible
orders
Dependent
proceed
entered.
in the
good
tain a
for her
States”.
home
judgment.
the reversal of
ings fall with
view,
threat
posed
no
to Ida.
Dubai
Er
generally
Appeal
5 Am.Jur.2d
See
government
there
testified
(1962);
Appeal
5B C.J.S.
and Er
ror
§
*4
imposed
leaving
had
on
the
no restrictions
(1958);
ror
1951
cf. Samuel v. White
§
country.
thoughts,
Ida’s
Astrid related
Dist.,
297 N.W.2d
Shield Public Sch.
has
she doesn’t know who
said that
“[Ida]
(costs
conjunction
taxed
(N.D.1980)
425
in
me,
believe,
say I
she should
who
will re-
judgment were set
because
with the
aside
her,
father,
says she
turn
her
who
or
won’t
aside).
judgment
Supreme
the
was set
The
said,
no way
be
T have
returned. She
judgment necessarily
Court’s reversal of the
knowing
trust’.”
who I should
trial court’s award of
reversed the
Lerdall,
v.
199 N.W.
fees and costs. Lerdall
specialist
that he is a
who stated
1924).
(Iowa
We
that
the
1016
conclude
affairs,
Middle
considers
an
Eastern
Dubai
not err in
Astrid’s
trial court did
The
place
unsafe
for a child to visit.
insta-
attorney fees
and costs.
in
bility
region,
principles
certain
the
heart of this
is the trial
Dubai,
govern
Islamic
law that
Saudi
custody
court’s decision to restrict Astrid’s
imposed
and exit
often
in Mid-
restrictions
within the con
Ida and
countries,
the
dle Eastern
were
reasons ad-
fines of the United
decision in
States. Our
in support
vanced
of his conclusion.
Bergstrom, supra 296 N.W.2d
condi
spite
requirement
In
that Rule
custody
Astrid on
tioned the award
to
52(a) of the
Dakota Rules of Civil
North
her maintenance of a residence for Ida
to
applies
modify
Procedure
to a motion
The impetus
the
for As-
United States.
Keator,
divorce
v.
decree [Keator
modify
the
trid’s motion to
(N.D. 1979)],
the trial court
remarry
her
the
decision to
leave
Unit
prepare findings
in the
not
instant case did
ed States.
of fact
of law.
and conclusions
Becker
A
on Astrid’s motion for a modi-
Becker,
(N.D.1978),
the
fication order was held in Morton Coun-
however,
adequate findings of
we found
ty
District Court on
Ida’s
fact and
of law in the trial
conclusions
guardian
possi-
ad litem had discussed the
court’s
delivered at the
oral
conclu
Dubai,
bility
Norway,
of visits to
and to
case,
Similarly, in
hearing.
sion of the
England
conveyed
Ida and
the child’s
with
we are
the basis
able to determine
court,
reactions to the
when he testified:
judge’s
opinion.
from his oral
decision
very
stating
“A
strong
Ida was
The trial
as a fact
Ida
judge found
that
that
not want to
she did
leave the United
“does not
leave the United States”.
wish to
Her concern was whether she
States.
law,
As a matter of
the
ruled
be returned to the
would
[this]
by Bergstrom,
that he
was bound
not
was adverse
or to
that she
to travel
child,
“the
that
to conclude
friends or
visiting other
relatives or other
circumstances,
no
out
under
countries, but she was
that
if
concerned
trial judge
side
the
States”.
she
the
not
United
did leave
she would
be returned.”
also noted:
We, therefore,
ve
Supreme
“I
read that
portion
Court decision
concluded that the
[Bergstrom, supra
custody
permitting
. . .
award
Astrid to
490]
was,
several
...
take Ida
emphasis
times
and the
there
in the
light
expressed preference,
against
the best interests of
as
the child
the best
interests
supra.
determined more
less
.
of the child.
or
the wish .
.
child.”
changed
The critical new
or
facts
circum-
stances before the trial court in the
case
response
evident
Alan’s indication
bar were Astrid’s recent remarriage and
he
oppose Norwegian
would not
so-
Dubai,
move to
and Ida’s
towish
remain in
journ
future,
the trial court
United States.
view
this evi-
following provision
included the
or-
his
dence,
dowe
not believe that
der:
court’s decision to limit
custody
Astrid’s
“9. Nothing contained herein shall
clearly
visitation to the
United States
prohibit
parties
from entering into
erroneous.
additions, amendments,
such
deletions
changes to this
as the parties
Astrid, however,
Order
them-
contends
”
may agree
writing....
selves
into
restriction on the award of
unduly
deprives
parental rights.
her
her
doWe
singular question
we
must decide
agree.
parent
A
has a basic fundamen
whether or not
remarriage
children,
tal
his or
but this
changed
move Dubai create
circumstanc-
B.,
right is not
absolute. C. B. D. W. E.
es under which the best interests of the
We have
child dictate
order mod-
repeatedly
said
interests of a
*5
ified
allow Astrid to remove the child
parents,
child’s
custody dispute,
are
from the United States.
important only
to the extent that
bear
The best interests
of
child
question
on the
of what is best for the child.
govern the
custody
modification
de
Muraskin,
Muraskin v.
cree.
v. Corley,
Jordana
part weeks the sum- overseas for a few except majority opinion agree I with the may place restrictions mer. The trial court which Astrid’s over- portion discusses Ida be requiring on that travel such as majority As the seas visitation with Ida. adult, Astrid, accompanied by including an previous decision opinion recognizes, our routes, pro- flying while international N.W.2d 490 Bergstrom Bergstrom, part hibiting travel to Dubai if that (N.D.1980), chiefly concerned with was not for travel. appears world to be unsafe whether or overseas visitation but rather Ida’s not Astrid had the to choose regard to Ida’s
place of residence without there is a vast differ-
best interests. To me of resi- permanent place between a
ence few visitation overseas
dence and a weeks’ reluctance to
during the summer. permanent for a resi-
leave this and enti- significant
dence overseas is more Cooke, Judy her reluc- Donald J. COOKE R. tled to more consideration than Appellants, a few weeks tance to visit overseas for Plaintiffs and *6 during the summer. concedes, the tri- majority opinion As the SYSTEMS, d.b.a. United BLOOD INC. previous deci- judge apparently al read our Services, Blood Defendant prohibit any Bergstrom, supra, sion in Appellee. overseas travel. Because our decision No. 10113. Civ. permanent overseas resi- concerned with a Ida, the decision dence for I do not believe Dakota. Supreme Court of North visita- applicable to the issue of overseas May of Astrid’s de- tion. This arose out sire to visit her to take Ida to
grandparents. I believe Astrid should Norway for a few to take Ida to prop-
weeks’ visit the summer under
er once Ida and restrictions. I realize that jurisdiction
Astrid are beyond the
courts of this difficulties could arise voluntarily
should Astrid return Ida However, there has
the United States.
been of Astrid’s no indication whatsoever the courts
refusal to abide the orders of jurisdictions
of this within State and other long painful during the