*1 DALIN, Plaintiff Roland W. Appellant, DALIN, Jo Defendant Appellee.
Civ. No. 930159.
Supreme Court of North Dakota.
Feb. *2 Farhart, Lian, Maxson,
Brenda M. Zent of Zent, Minot, plaintiff ap- Louser & pellant. Nelson, Williston,
David W. for defendant appellee. LEVINE, Justice. appeals
Roland W. Dalin from an amended judgment modifying and child support. We affirm.
The Dalins were married on June Tioga, They North Dakota. had one child during marriage, born on December They January 1989. were divorced on . judgment, In the divorce the dis- granted roughly equal-time physi- trict court cal of the child to Patricia and Ro- age. land until the child reached school Ro- September, November, land had January, July, March half every Patricia had visitation other mining E.g., Foreng, February, a child’s best interests. weekend. October, supra. June, August, May, Decem- April, July, during which Roland and half of
ber
For a
determina
days of each month.
visitation for ten
tion,
engage in
two-
the trial court must
*3
pay
support
child
for
was to
$75.00
Roland
Barstad,
step analysis. E.g.,
v.
499
Barstad
month that Patricia had
custo-
each
(N.D.1993). First,
court
N.W.2d 584
pay
support.
dy. Patricia
to
no child
significant change of
determines whether a
February 6,1992,
judgment was
the
mod-
On
original
circumstances has occurred since the
to correct a clerical error. On October
ified
custody
If the
finds a
decree.
Id.
court
1992,
6,
judgment again
the
was modified
significant change
it
then
give
custody
to Roland for
stipulation
sole
change
must
adverse
decide
1992,
months,
beginning July
after
four
ly
compels
requires
affects the child that it
or
custody
revert
to the schedule
custody
change
a
the child’s best
to foster
originally ordered
the court. On Decem-
Hagel Hagel,
v.
512
465
interests.
N.W.2d
modification,
81, 1992, Roland moved for
ber
Schlotman,
(N.D.1994);
supra at
Johnson v.
custody. During
hearing
the
requesting sole
834;
Winn,
741, 743-44
Delzer v.
491 N.W.2d
motion,
stip-
Roland’s
Roland and
Leidholm,
(N.D.1992); Blotske v.
“significant change
of circum-
ulated to
(N.D.1992).
anal
609
The best-interests
custody.”
necessitating
change
stances
modify
ysis
custody
differs
a decision to
custody to Patricia
The trial court awarded
decision,
original custody
in an
from that
August
year
5 of
25 to June
each
simply applies
trial
the best-
where the
court
trial
during the summer. The
court
Roland
§
interests
factors of NDCC
14-09-06.2.
provide
support
ordered
also
Miller,
deciding
supra
Gould v.
at 43.
guidelines,
according
the
modify custody, the
court
whether to
trial
75-02-04.1,
ch.
when not exercis-
NDAdminC
gauge
must
the factors of section 14-09-06.2
custody
ing
the child.
over
“against
stability
the
backdrop
the
par
the
child’s
with
custodial
the
appealed.
argues
He
trial
Roland
Barstad,
587;
Olson,
supra
ent.”
at
Orke v.
custody
clearly
er-
court’s
determination
(N.D.1987).
pre
A
411
97
N.W.2d
bias,
and that
and a result of
roneous
to be better off with the custodial
sumed
of Roland’s child
the trial court’s modification
parent,
the
court should resolve
trial
clearly
support obligation was
erroneous.
custody.
continuing
close calls
favor of
custody
We treat a trial court’s
de
Winn,
(Levine, J.,
747
supra
Delzer
findings of fact and review
terminations as
concurring). The trial court should
clearly
under
erroneous standard.
them
only
transfer
when the reasons for
Foreng,
52(a); e.g., Foreng v.
NDRCivP
substantially
ring custody
outweigh the
(N.D.1993)
[original
de
N.W.2d
stability
parent.
custodial
child’s
Schlotman,
termination];
Johnson
Here, however,
stipulated
parents
of cus
[modification
ne
of circumstances
“significant
clearly
tody].
finding
A
of fact is
erroneous
custody,”
thus dis
cessitating a
by an erroneous view of the
if it is induced
two-step
the usual
pensing with the need for
it,
law,
if
exists to
no evidence
analysis
presumption in favor
and its
evidence,
court,
reviewing
on the entire
In
quo.
maintaining the
status
custodial
firm
conviction that
has
definite
stead,
judge properly treated this case
E.g.,
mistake.
Johnson
trial court made a
applied
disputed
case and
original
an
Schlotman, supra.
of section 14-09-06.2 within
the factors
weigh
it has to
range
wide
of discretion
original custody determina
For an
supra.
E.g., Foreng,
tion,
only the
factor.
must
court
cir
agreement
that there was
of the child.
and welfare
interests
or necessitated
14-09-06.1;
also,
required
e.g.,
cumstances
see
Gould
NDCC
judge from the
Miller,
freed
Trial
ordinari-
constraints of the
deter-
discretion
courts
substantial
ly required
proceedings
in modification
parties
place
tricia testified that
took
him
allowed
to treat this case as
when Roland had
of the child or
Therefore,
custody determination.
we limit
babysitter’s.
when the child was at a
Al-
our review of the trial court’s
modifi-
though
presented
one witness who
cation to whether its determination of the
story
contradicted Patricia’s
and testified
child’s best interests was
that she
saw the child
the street
parties,
one of Patricia’s
court chose
The trial court determined that
weight
Patricia’s
by plac
best interests of the child were met
See,
appropriate.
e.g.,
deemed
Freed v.
ing
the child
Patricia’s
The trial
Freed,
although
concluded that
“both
disagrees
with the
that he overstated
deeply”
care
*4
par
the child and “are fit
lifestyle.
the “wildness” of Patricia’s former
custody,”
ents for
Patricia “seems best able
weight
credibility
But
and
determinations
love and
jeopardiz
affection without
are the exclusive domain of the trial court.
ing
relationship
desirable with the non
Id. The trial court commented on differ-
parent.”
custodial
See NDCC 14-09-06.-
parties’ “sincerity,
ences between the
de-
2(l)(b).
concluding,
the trial court
meanor,
responsiveness”
found
significant
by
found
the criticism Roland and
favor
precisely
of Patricia.
It is
because an
lifestyle
his mother of
parent
Patricia’s
appellate
intangi-
court cannot assess such
abilities,
ing
particularly “their beliefs that
bles from a cold record that we defer to the
absolutely
redeeming
there are
no
values to
trial
finding
court. We conclude that
parenting
Patricia’s
skills.” It is evident that
that
stabilizing
Patricia’s life was
is not clear-
the trial court was concerned about the fu
ly erroneous.
relationship
Patricia,
ture of the child’s
custody, given
should Roland receive
his un
The trial court found that Roland
yielding disapproval
parenting
of Patricia’s
and Patricia had
“rough
of the child
style.
Failure of
cooperate
one
ly the same amount of time” since the di
parent’s
the maintenance of the other
rela
challenges
finding,
vorce. Roland
point
tionship with the child is a factor which the
ing
testimony
to his
indicating that he had
judge may consider
relevant
custody approximately seventy percent of the
See, e.g.,
decision.
Gravning
Gravning,
time, although
Patricia’s
indicated
(N.D.1986);
ble views of the evidence is not challenges erro Roland also several of the neous. Id. Patricia which, testified that she cur findings argues, trial court’s are rently day job holds a and has not had a up “contradicted certain evidence.” It is January. drink since factfinder, us, Roland makes much weigh to the conflicting history hosting parties, Patricia’s but Pa- might evidence. The mere fact that we er, differently, special absent bears does not enti- evidence viewed the ... court. Reede v. with her child than a closer tle us reverse ” Steen, (alteration original) ]. father does’ How ever, exchange there evidence conclude that we do not believe the above challenged findings, and we the trial court based its custo evidences that and firm conviction not left with a definite dy misguided, determination on stereo that the court made mistake. typical assumption daughters require caregivers, argues. female It was Roland also raises the issue Roland himself who introduced the notion the trial court based its available his mother for Ro improper bias. determination performed he had not or was uncertain tasks points questioning of land to the trial court’s merely performing. The trial court Roland’s mother: up attorney’s inquiry followed Roland’s as to Rollie In the event COURT: cooking did the and Roland’s disclosure who custodian, in the were the relied that he on his for tasks such as mother things in [the event certain [were] there braiding. hair potty training and Because training best be done child’s] questioning Roland invited your anticipation by introducing the idea that he felt some *5 you be the teacher? would inability in performing or discomfort certain No, Rollie is the “THE WITNESS: tasks, may complain not childcare just help And I him[.] teacher. pursuit the issue. Cf my Getting to “THE COURT: back Inc., Trucking, v. 466 Getter Wanner question, in the event there are certain 833, [stating 836 that defendant girl [are] learn that that a should may complain appeal not on that witness’ you easiest to learn from a would testimony was erroneous where anticipating you would be that that responsive question and to defendant’s woman? object testimony]. not to Un defendant did Yes.” WITNESS: circumstances, we conclude that the der wholly judicial proceedings in Gender bias is not motivated questions trial court's were Iverson, Cal.App. unacceptable. In 11 See re After evidence of bias. or (1992) 70, 1495, Cal.Rptr.2d 73 [“The 4th 15 parents loving, were fit and that both can day long past appellate is when courts “fairly weighed the evidence be trial court disregard judicial or action rooted in racial properly deter tween two fit error.”]; also sexual as harmless see bias appropriate factors.” mined Note, Megan Mayer, Marriage In re G. Thorlaksen, 453 N.W.2d Thorlaksen Reducing Dubious in Ju Iverson: Benefits 774 Bias, L.J. dicial 3 Women’s Gender UCLA argues Finally, that (1993). agree the trial court 105 that modifying court Roland’s child erred fathers, group, incapa assumed that obligation. The court has con support raising daughters, it adequately ble of their judg tinuing jurisdiction modify to a divorce improper to relying on an factor support respect to child whenever ment not Trial courts should change in has oc material circumstances “perpetuate damaging stereotype 14-05-24; Skoglund curred. NDCC caregiver, and the mother’s role is one of Skoglund, 795 Ordi apathetic, irrespon father’s role is that narily, change of circumstances neces sible, Dubreuil, parent.” In re 629 unfit modify support is one based sary to child (Fla.1993); see also Caban So.2d change in financial circum 1760, primarily on a Mohammed, 380, 388, U.S. S.Ct. Schmidt, (1979) Schmidt stances. [rejecting argu 60 L.Ed.2d (N.D.1988); Skoglund, supra. moth ment that distinction between unwed justified by a and unwed “is ers fathers trial court ordered
fundamental difference between maternal per current child pay support “child paternal ‘a natural moth relations —that guidelines support when the child is unit due to the constant the child Although Patricia date of of the other.” did since the divorce.” see analysis point requiring two-step present not evidence of a either no circumstances, when, case, parent’s protect stability financial inas this there parents’ stipulation stability protect. court concluded that the make the no required stability, to a circumstances lack of rather than the only stipulation, omitting redetermination of but also a the basis for the usual parent’s sup- two-step of each child in a this. redetermination ease such as port obligation. We believe a modi- WALLE, Justice, Chief concur- VANDE fication constitute a material ring in result. modify circumstances allow a trial court to support. light modifi- separately express my concern write cation and the trial court’s direction my to distance affirm about —and vote to sup- Roland consider the child portion opinion majority from —that port guidelines in agreeing on child par- which concludes that because of “[t]he we obligations, conclude that the trial court’s agreement ents’ that there was a parent’s modification required circumstances or necessitated obligation was not custody” agreement “freed the judge constraints of the argues Roland also that he was analysis ordinarily required in modification adequate given sup notice his child proceedings and allowed him to treat obligation port Although could be modified. original custody case as an determination.” continuing jurisdiction a trial has liberty are at Parents to decide modify support upon showing of a between them without intervention change in material there must *6 However, they agree courts. when cannot orderly procedure. be notice and Gerhardt petition custody, the courts to decide our Robinson, change test is the in whether circumstances However, Roland’s motion for modification of change requires is a or necessitates custody asked the trial court change custody. urged in I have adherence support obligation Patricia’s child and elimi two-step analysis. Eg., to the Johnson in granted custody. his the event nate he was Johnson, Although granted custody, Roland was not [VandeWalle, J., concurring specially]; contemplated change have he must in Anderson, Anderson custody would necessitate redetermination (N.D.1989) [VandeWalle, J., concurring spe parents’ support obligations. cially]. change the When circumstance argue given not that he not was which adversely must be one so affects the simply notice because the outcome con “compel require child so as trary expectations. to his custody to foster the of best interests the Affirmed. child,” Schlotman, Johnson (N.D.1993), I do not understand how NEUMANN, Justice, concurring. judge could the not examine nor agree with majority opinion. I most of the agree do I that it would the trial authorize separately only I point write out that court to treat the original case as an parents’ stipulation there is more than the determination. We do not allow the requirement this ease to obviate the normal stipulation of judge to free the two-step analysis custody. of a for from the constraints of the Snell, E.g., guidelines. State Minn. v. require two-step analysis the for N.W.2d 656 protect in order to encourage stability in permanence children’s lives. That The lack because the purpose fully support. is a which I But here constant of the child date of since the specifically original obviously found that “neither the divorce is due to Patri- any for, found, parent permanence family style has had cia’s life as the trial court [VandeWalle, J., separation concurring specially]. jobs “Her since all lasted less That Likewise, changed year. applies patterns jeopardize she has to other than a sep- relationship par- several times since the homes and cities with non-custodial living She has established no stable aration. ent. long arrangements of duration.” Roland’s agree I the trial court should be affirmed. appears it style
life was in stark contrast. It “rigid” as permanent to be and that MESCHKE, J., concurs. of Roland as the trial court’s characterization SANDSTROM, Justice, very dissenting. “being rigid for a stickler detail compared ‘rightness’ ways,” his as respectfully dissent. characterization of Patricia provides: Dakota North law “Between the being “best able to love and affection father, adop- mother and whether natural or jeopardizing without tive, no presumption there is as to who will keystone parent” non-eustodial is the promote welfare better the best interests and custody to trial court’s decision to award the child.” See N.D.C.C. 14-09-06.1. Patricia. also, §§ N.D.C.C. 14-09-04 and 14-09-06. Notwithstanding “neither testimony presented Given the mod- unit,” family permanence as any hearing, I if the ification am convinced that the best interests of the child believe reversed, parties gender of the been by adhering to the better served opposite. result would have been the The permitting rather than evidence; majority mischaracterizes the proceed court to as if this were an Roland, judge, was the who introduced The did custody determination. trial court concept “that findings changed make circumstances and a woman.” Roland testified re- done prior judgments were unwork- found that the learning ceived from his mother being complied able with. issue response question care for the child. changes in re- circumstances training, testified: toilet quire that this realize [Patty] “I went to Colora- did that before it more difficult to affirm the trial makes do. matter. After exam- court’s decision the decision of the trial court. ining part of the ly NDRCivP. guides our functions as tempt result_” that a continued “wrong’ “clearly erroneous” standard of summer. senting]. awarded indicated the evidence to substitute there is not solution,” court, custody to Roland for the (N.D.1993) [VandeWalle, C.J., case, However, year that in That is level Barstad v. have also our review even if pattern of circumvention of is not the standard which “this court should cases its what record, standard to Patricia we judgment for that of Barstad, 499 expressed appellate judges. of child I would have done disagree with the governed by I would I have deferential to ‘right’ custody “in Rule *7 greater recent- not at- belief 52(a), or a dis- tasks assumed because child’s hair In in a it in point where me because fore. kind worked “Um, getting her hair braided. “I response wash him. guess court, [*] my pony I So it. normally pony mother assist me got every morning, Roland testified: I And rearing tail. ¾: started I my mom has raised tail.” a lot can a the other with her. question just pull generally I haven’t learn how to braid. So [*] early n hand, is. it back and My last just And I comb it. gotten to inappropriate mom helping man, spring, kind of specifically [*] my fixing kids helped mom.” put some n her put be- we I Rollie In the event custody in “THE COURT: may justify visitation custodian, in the Blotske v. were interests the child. best things Amy’s Leidholm, was certain event there be training done
woman, your anticipation it be would
you would be that teacher? No, Rollie WITNESS: is the just help
teacher. And I him. ' Getting my “THE COURT: back to
question, in the event there are certain girl should learn that is easi- you
est to learn from a
anticipating you would be that wom-
an?
“THE WITNESS: Yes.”
I would reverse. CORPORATION,
BASF Plaintiff Appellant, SYMINGTON,
Darlene next friend or
guardian Symington, ad litem for Darci incompetent, Appel Defendant and
lee.
Civ. No. 930146.
Supreme Court of North Dakota.
Feb.