*1 permitting the jury its discretion in view tape.
the audio-visual
Valgren next contends that N.D.C.C. 40-20-05,2 deprived police Beulah officer
§
Lynk to arrest him because place
the arrest took more than one and city lim-
one-half miles outside the Beulah However,
its. the State offered evidence pre- the arrest occurred within the and persuaded
scribed distance we are not
by Valgren’s argument contrary. to the of conviction is affirmed. C.J., GIERKE,
ERICKSTAD, JJ.,
MESCHKE, concur. WALLE, J.,
VANDE concurs in the
result. BRANSON, Lynn Plaintiff Appellant, BRANSON,
David Rex Defendant Appellee. No.
Civ.
Supreme Court of North Dakota.
Aug. 20, 1987. 40-20-05, provides: obtaining peace having 2. N.D.C.C. § the aid of officers jurisdiction beyond that would cause a limit police police and “Chief of officers —Powers delay'permitting escape. in this sub- As used pursuit. and duties —Hot section, pursuit’ ‘hot the immediate means police perform “1. The chief shall such pursuit person endeavoring of a who is prescribed by governing duties as shall avoid arrest. body preservation peace. for the “3. Police officers shall serve execute police authority chief of shall have the warrant, writ, order, any process, or notice police administer oaths officers under his judge by municipal to them limits, issued within supervision. city Within the and for a city any or action or civil criminal distance of one and ki- [2.41 one-half miles proceeding for or on account of violation of city all directions lometers] outside limits, any city any pro- ordinance or in action or police officers and watchmen ceeding city in which the is a or is city perform shall the duties and exercise beneficially. police, powers peace interested within the officers as defined section, may prescribed prescribed by limits in this serve the laws of this state. police may process pursuit’ "2. and execute all writs and issued officer in ‘hot con- justices beyond in civil tinue the one and actions. In addition to the [2.41 one-half mile section, arrest, police out in this shall kilometers] limit make an in obedi- duties set pre- perform ence to such a warrant without a warrant under other duties as 29-06-15, conditions section ordinance or whenever scribed statute.” *2 396
family Fairmount, resided near North Da- kota, engaged farming. where parties separated December Fargo and Pamela moved to with the chil- dren.
Pamela for commenced an action divorce judgment, on December 1985. The among things, (1) provides that nei- support; ther shall receive (2) property awards valued at $580,725; (3) property awards $2,827.50; (4) valued at orders David to $606,149.22 parties’ assume the debts of fees; (5) pay guardian gives and to ad litem David; of the children to support, does not order Pamela to child “jurisdiction but retains on this issue so support may that child be ordered at such time as circumstances dictate.” appeal
Pamela asserts on that the trial findings relating property of fact division, spousal support, and child clearly are erroneous.
A trial court’s determinations on
custody,
support, alimony,
findings
property division are treated as
fact,
appeal
which will not be set aside
clearly
Lapp
unless
are
erroneous.
(N.D.1980).
Lapp, 293
Find
N.W.2d
ings
presumptively
of fact are
correct.
Agency,
Alumni Ass’n
Univ. Hart
(N.D.1979).
Inc.,
machinery
equipment,
a car
fact and to make
findings,
additional
Pame
$1,500,
$63,600.
at
valued at
as
la did not raise this issue. The evidence on
“failed to
serts that the trial court
consider
very
this matter was not
satisfactory1 and
placed upon
equipment
the same
the value
failing
we find no
of discretion in
abuse
$103,-
of
of
PCA/FHA
speculative
payments
include
future
in the
September
The action was tried in
000.”
parties’ assets.
time,
testified,
By that
as David
1986.
machinery
argues
of farm
had fallen be
value
that the trial court’s
division,
economy
disparate property
cause of the farm
and there were
in which David
$580,725
years
more
and tear on the
two
wear
was awarded assets
and or
machinery
equipment
crop years
in the
dered to assume the marital debt and
$2,827.50,
of 1985 and 1986. The
is not clear Pamela was awarded assets of
is
$580,-
ly
erroneous. David’s
award
hoping
They've changed
1. David testified on this matter as follows:
"A We’re
to.
program
you
farm
so much that the ASCS com-
receiving any payment pursu-
"Q Are
any
program?
keep up
ant to
farm
mittee can’t even
with it. At
one
program payment
“A The farm
I have re-
supposed
pay-
we
to receive
final
weren’t
our
ceived, some of it.
July,
until next
and what we
now
ment
have
Okay,
you
"Q
what are
entitled to in total?
believe,
percent payment, I
is a 15
November,
15th
it,
"A I don’t have
I don’t have the number
they’re backing up on
and now
it,
get
and 1
don’t believe
can
and some of
that, too,
people
so I don’t know if the
at the
up
these fields we had to tear
wheat. We
coming
ASCS office know when it’s
for sure.
offices,
Wahpeton
dealt in two
the ASCSnear
you
you
get
pay-
"Q
will
Do
think
another
Wheaton,
they
and also the one in
have
group
payments totaling
ment or
some-
policies,
though
two different
even
it’s a feder-
you
the total of
where around
what
program,
pertains my
al
and it
case to the
already
your hope?
received?
Is
up
spring
fields that we had to tear
because
in the
that,
hoping get
“A I’m
more than
but
lot
put
drowned out and
them to
thing
going
how this
is
we don’t know
complicated
beans. This is
and I don’t under-
county com-
come out in Wheaton with the
around,
stand it.
It’s all turned
and those
pay
mittee.
It
be that we have to
they’ve
committees have to work on that and
back,
recollect,
sup-
and as I
we’re
of them
working
been
in the Wheaton office on it
percent
posed
payment
to have 60
of our
July
since the first of
don’t know
already.
supposed
We’re
to have
but
they’re going
pay.
how much
It sounds
probably
going
get
they’re going
other 40
county
like
we’re
to call in the ASCS
it,
depends
committee and decide what to do with
from Wheaton which is—it
on what
anything.
we haven’t heard
county
committee decides down there.
normally
you
“Q What
be entitled
County,
"Q For
for North Dakota
Richland
to?
purposes, you hope
get
at least as much as
County may
“A In Traverse
we
have to
already gotten?
already,
back some of what we have
and in
left,
percent
"A I
have 60 and
County,
Richland
I don’t remember....
County
comes from the Richland
from what
office.”
Now, you expect
"Q
to receive additional
payments yet
year;
you?
don’t
party
725 in assets is burdened with marital
incapable
maintenance
of re-
$1,202.80
$606,149.22 plus
habilitation.”
debts
fees, resulting in
guardian ad litem
a net
“Obviously,
an award of
property award to David with value of a
light
must
support
be considered in
$26,627.02.
negative
valued
ing spouse’s
ability
needs
sup
$2,827.50
at
awarded to Pamela
not bur- port.”
Weir, supra,
374 N.W.2d
Weir
disparity
with
dened
marital debt. The
recently
We
said
determi
“[t]he
awarding
property and debts David re-
sufficiency
native factor is the
income
$26,627.02
sulting
negative
in a
and award-
permit
apart
each
to maintain
$2,827.50
ing property to Pamela worth
living enjoyed
together.”
standard
Ba
erroneous as to Pamela. We gan
(N.D.
Bagan,
inequalities have said that substantial
This,
realize,
tempered
we
must be
explainable.
property divisions must be
reality.2
the necessities of
*4
Anderson,
Anderson v.
“The alimony alimony modify express or award of and no spousal support rehabilitative, today jurisdiction, reservation of the trial court disadvantaged allow time payment lacked to order the acquire resources to alimony.” new skills. It can In view of Pamela’s demonstrat- period be for limited spousal support it can ed need rehabilitative permanent provide possibility traditional and the that David be able cases, many living marriage "[I]n when divided after the dissolution parties, enjoyed during marriage." between the isit not sufficient to main- each Weir v. Weir, tain supra, each at the same standard of at 864. future, spousal support tative if support in the we he became able to such to afford should have the trial court believe do so in the future and Pamela’s need jurisdiction to later expressly retained therefor remained. circumstances such award Pamela contends that the trial court’s left with a definite changed. We are determination to award of the chil- a mistake has been firm conviction that dren David is erroneous. She awarding spousal support to in not made challenge any does not retaining jurisdiction to la- without underlying fact the court’s determination spousal support if Pamela’s ter award other than the that it is in the best is later needs remain and David able interest of children that spousal sup- afford to rehabilitative placed with David and the trial court’s re- port. liance on the evaluations and recommenda- that, support, note as to child We tions of the ad litem and Dr. included in the trial court Ascano.3 following provision: present “9. That in view of Pamela’s (1) asserts that she was the situation, the Court shall enter financial giver through care to the children requiring no order at this time marriage; out the asserts support to David shall retain testimony court failed to consider her jurisdiction on this issue so that unnecessarily David was harsh and selec support may be ordered at such time as *5 children; (3) in disciplining tive asserts circumstances dictate.” Rachael, chance, given that would Thus, jurisdiction the trial court retained to Pamela; testify she with that wanted live order Pamela to if she notes that both love the children to do so in the future. The became able disposed providing chil and are similarly have retained trial court needs; (5) argues to order dren’s and that: rehabili- Among are all in with David. proper parents. children, however, chologist. The hold chores. Until the Court order of married, Pamela assisted David with farm work until more time with the children and other house- which cate that Pamela would not be as custodial have all been evaluated for the care of the children. the other with Rachael and Nikki. both sides of the schools in farm. The farm home is spacious. have lived at the farm located near Fair- mount, "8. "7.5 "10. When Pamela and David were first "7. "19. "18. Since the children were born custody [******] [******] David, David, she Both Pamela and David are fit and Rachael North Dakota parent relatives, Pamela was that When David is unable to good physical spent the children were determination are the Pamela and the two children area. Both results It is to the less time and as David. family, have a close that Nikki and of the primarily responsible and have health. as well as custody assisting modern, grandparents best interest of Dr. the two children evaluation underlying Ascano, relationship born, pets personally David and following: clean attended many good a placed at the a from after indi- psy- and when children have been relatives would be less the same school as ents assist Pamela, dren. The children continue to be enrolled in has been the unrelated prefer with their father in litem have concluded April. cares care for when cial stayed in Fairmount. not be able to have sought counseling with Dr. Ascano and the on a placed with David.” best feelings chologist "20. If the children "21. The children are "22. "23. responsibility separated. weekly interest of she was for them. Since Pamela was unavailable. them in the Rachael has indicated that she would Both Dr. Ascano and the in this they would have to be cared for them, and the live with her mother baby basis. David has assumed finan- primary originally his respect sitters or the children if for the therapist. mother, a they meeting single parent adjustment, that it would be in the pets and contact with were to be caretaker of the chil- frequent than if April are not as placed did before their expenses adjusting similar caretakers who lives with with David although guardian They placed 1986 David David has home. To strong therapist nearby, would living were with they par- psy- her ad however, Court, upon “The relied that this bond between this mother and broken; recommendation Dr. Ascano and the these children be is that what you’re recommending? ad Those litem. recommenda- largely upon Dr. tions based Asca- I “A believe that based on the data no’s that belief due Pamela’s mistreat- there is a probability statistical child, ment as a she should not be custo- there could be. parent. give dial Dr. Ascano could not “Q Okay. might So it be that at preciseness theory to his other than to woman, the future this Mrs. say greater proba- there was a statistical Branson, might problem manifest such a bility that be a less desir- might your be described in some of of her parent able because childhood ex- research, that it make her less of a periences. Basing decision good parent than her husband? guesswork upon such is intolerable. The “A That’s correct. replete showing record is with evidence “Q That’s the nuts and bolts what parental stability, including; Pamela’s you’re saying? caring for four foster children as well as my profession “A In we live with own; educating her children while probability, certainty. pre-schoolers; their being daily still “Q right, All understand on giver. care Under cir- probability you’re going the basis of a cumstances and facts of this case the destroy the bonds that have been built Court’s decision relative to children, between this mother and these clearly erroneous.” those bonds built between care Dr. Ascano testified direct examina- giver children? tion, among things, that: before, As I “A have indicated I have “The concern expert have as an unfortunately been asked by the Court to seeing the area of abuse and in make such a recommendation psychosocial Mrs. Pam Branson’s history case, somebody kind of will custo- abuse, coupled of child psycho- with her dian somebody visiting has to be the logical profile, is a *6 concern me in parent.” regards to parenting her skills.... Thus Dr. Ascano’s recommendation that ****** custody children was not have significant history “Because some only probability” based on “statistical document, on my based on based “guesswork.” guardian The ad litem testi- Branson, Pam I interview Mrs. have fied her recommendation that David some concern own emotional custody of the children was based trauma and victimization could be partly partly on Dr. Ascano’s projected onto the children. on experience her own with Pamela and [******] David. Branson, Branson,
“Mr. relied, also with Mrs. While the trial least court gave I personality profile. extent, both of them a some on the recommendations of Mr. Branson compulsive personali- litem, has a Dr. Ascano and the ad it is disorder, ty profile in whereby degree, clear that those recommendations Mr. Branson is not as only place severe Mrs. of its bases determination Branson and he does custody See, also not have the children with David. psychosocial history 18, 19, 21, e.g., 20, child abuse vic- and 22 timization. 3, supra, set out in footnote none which are, be, or have been asserted to examination, Dr. Ascano testified on cross in erroneous which are them- sufficient among things, as follows: custody selves to trial “Q you’re So effect what recom- determination. mending here basis that there be, may may problem, be some not that The court was faced with difficult a be, is, there will not that know there question par- decision on close of which but that problem, there custody ent should have of the children. third-party custody of the entire evidence has not In disputes Our review this court recognized importance a definite and firm conviction has left us with of the bond- ing that placing custody exists between that a mistake was made children and their psychological parents David. The trial of the children with and the harm that is, therefore, disrupting relationship may such a court’s determination cause Gunville, children. Daley See v. (N.D.1984); Mansukhani stated, judgment For the reasons Pailing, So respects except affirmed in all for the mat- custody disputes too in par- between two spousal support. spousal sup- ter of ents, no than in parent-third-party less dis- port provision is reversed remanded to putes, something unique there is in the modify the trial court with directions to relationship between the caretaker expressly retain worthy special weight and the child spousal support award rehabilitative making placement. decisions about See if she the future continues to Chambers, supra at 537. need it and David is able to it The trial court found that both Pamela Statutory appeal future. costs on are proper parents. and David are fit and Pamela. awarded to child, Rachael, nine, age expressed older WALLE, preference live with her mother. VANDE GIERKE as- MESCHKE, JJ., little, gave sume that the trial court if any, concur. preference, credence to Rachael’s because LEVINE, Justice, concurring and dis- young she is too to know what is in her senting. Accordingly, best interest. apply I would majority’s I concur in the resolution of caretaker rule to the facts the issues of division and this case. support. affirming dissent from The trial court found that Pamela was non-primary in the parent. caretaker primarily responsible for the care of the majority recognizes the trial children until the court awarded David tem- court was faced with a difficult decision on porary custody 11, April of the children on question parent close of which primary caretaking 1986. David’s role of the children. For the rea- since 1986 is not relevant. The my sons stated in in Gravning dissent which, either, parent determination of (N.D.1986) Gravning, 389 N.W.2d the, primary keyed caretaker is to the time (Levine, J., dissenting), I pri- believe the proceeding the divorce was commenced. mary applied caretaker rule should be Pikula, See Pikula v. questions custody. resolve close of child (Minn.1985). proceed- The time the divorce *7 applying primary point
One reason for ing was commenced is that family relationships physi- caretaker rule is it the best inter when the disrupted by leading preserve cally est of the child to events to the bond that develops marriage, e.g., dissolution of the at the time between the child and the parties’ separation interrup- Chambers, or the generally caretaker. See Reth functioning family full unit. tion of the inking the Custody Substantive Rules for 714, Pikula, supra at n. 3. Because the Divorce, Disputes in 83 Mich.L.Rev. pri- trial court found that Pamela was the (1984). bonding 527-38 This vital is cre mary parties sep- caretaker at the time the pri ated the intimate interaction of the proper Pamela is a fit and arated and that mary caretaker with the child. See Pikula parent, apply caretak- Pikula, (Minn. er rule and reverse the award of Chambers, generally supra; See David. Klaff, The Tender Years Doctrine: De (1982).
fense, 70 Cal.L.Rev. 344-47
Equally important are the rule’s benefits of
increasing predictability both negotia
decisions and evenhandedness
tions. Gravning See at 625.