*1 GOFF, Shirley Respondent, M. Plaintiff
George GOFF, Jr., W. Defendant and Appellant. No.
Civ. 8876.
Supreme Court of North Dakota.
Oct. *2 also,
itаtion privileges and, to the father to paternal grandparents, and directs that the judgment accordingly. be amended 19, April was Sherie born on 1967. At September the time of hearing 1972, years, October she was about five five age. months of The father and subsequent divorce, to the lived his parents, paternal grandparents. Sherie’s arrangement This continued until Febru- ary pa- 1972 when left Sherie’s father Valley City ternal home in and went to Bay, Canada, Thunder where he was em- ployed in May construction work until Following 1972. he wеnt Minneapolis to employ- where he obtained parts ment as a man for Dodge. Anderson He was still employed there at the time of the trial. Nerison, & Weiss, Hjellum, Jukkala spells The father has blackout which he ap- Vinje, Jamestown, defendant and for by artery testified leading were an caused pellant. which, reason, to the brain for some oc- on Forks, for Alphson, Grand Robert A. casion, blood, restricts of the flow to the respondent. plaintiff and fainting extent he has blackout
periods. He that he has been testified hos- pitalized Subsequent for malady. TEIGEN, Judge. suffering spells blackout one of these while Goff, employed Dodge, he was tak- defendant, George Anderson W. Jr. hospital Minneapolis from an en to a appealed has where father), (hеreinafter problem modifying diagnosed. presently de- He court order of district 1970, 7, receiving his which January treatments doctors entered cree child, He hope of a minor will cure the malfunction. by med- Sherie). advised that the treatments Lynn (hereinafter Sherie Goff remedy surgery ication do not the situation awarded the father was By decree performed purpose of will be for the re- control of Sher- care, custody and absolute plas- rights placing portion artery ie, subject visitation to certain blood will flow (hereinafter through tic tube which the Shirley Goff M. Although he suffer- to the has been was awarded the brain. mother), and the mother ing spells for a of a from these blackout num- care, custody control absolute Parrish, diagnosed not years, ber of Ann the cause younger minor Teresa subject rights July until the father. 1972. visitation prohibited party either The divorce decree According testimony of the father thirty from for a remarrying married, planning per- he to be was also thirty-day days. Upon expiration of haps in November or December sometime period, and her name remarried has been the meantime he liv- Shirley is now Parrish. M. single in a a small hotel room in near is not Minneapolis, from downtown which suita- order trial court’s He quarters ble as for testi- apрeal and directs that Sherie. is taken orders fiancee, registered fied his is a changed from who nurse, mother, allowing acquainted is well with Sherie father certain vis- ably twenty-six years age. her on a number of about visited with On she has his fiancee clear. fathеr and matters the record Both the occasions. taking into desirous Subsequent to the return of the mother married, will be they are home after in May state North Dakota He proper home adequate an her. paternal grandmother spent and Sherie expects employ- testified that he *3 considerable in and time Canada the Min- Dodge parts at Anderson as a man ment neapolis paternal grandmother area. The is one continuing and will be purpose and the father contend that the of pursue. which he desires to spend such visits was to allow the father to Sherie, time his daughter whereas it mother, subsequent Sherie’s to the di- is the contention the of 1972, Valley in January vorce in remained City was Valley taken out of the communi- City thirty-day remarriage pro- until the ty prevent to exercising the mother from expired. hibitory had was then She rights her visitation under divorce de- the present Parrish, married to Nolan her hus- addition, charges cree. In of number Upon they marriage left band. by countercharges and were mаde each of Seattle, North Dakota and went to Wash- parties the hereto of claimed of unfitness ington, employed where he was the custody other to and have the control Boeing Company. They remained in the of Many charges thesе Sherie. of antedate Washington, state of apparently making no proceedings. divorce Therefore we see trips Dakota, back to North until about no need to mention them here. 1972, May they when returned to North At they the time of the trial werе Dakota. The judge proceeding trial is Hatton, in a farm home near North judge same trial who sat in divorce Dakota, which is owned Parrish’s Mrs. proceeding. He all is familiar with of the parents. There have no children born facts adduced as a result of the domestic of marriage. issue this problems parties of their re- spective parents, fitness as and ordered Mr. Parrish is employed testified that he custody of one It is child to clear each. as an electronics technician and is trained that thе demeanor and behavior each of to do copy work on machines for the B M parties has considerably improved since Department Gaffney’s at Supply. Office January the divorce in from the place We assume record that this Forks, of business is in located Grand elementary It is custody in cases Dakota, approximately forty North miles that each case be must considered and de Hatton, distant from although the record upon separately termined its facts and own does not establish as a fact. Mr. Par- the situation before Our statute court. rish earnings testified that his approxi- guiding provides: the court in this area month, mately per and that have $500 home. is He also desirous of hav- general appointing guardian “In or in part family. become a awarding minor, custody aof is to guided by following court be 1970, From when the divorce January considerations: granted, May was 1972, neither the fa- ther nor mother had with- the visited be By “1. what child in while she in was the child mother, temporal other. the time of and its mental moral its trial, welfare, twenty-three years was is of suffi- age and if the child husband, Parrish, prefer- age intelligent twenty-sev- Mr. was cient to form an years ence, may en age. apparently judge father consider court preference was approximаtely in twenty-eight or twen- ty-nine years prob- age, question; fiancee
853
Heller,
adversely
(N.D.1971);
2d 486
Guldeman v.
between
As
“2.
1967); Azar v.
(N.D.
436
guardianship,
N.W.2d
custody or
claiming the
Azar,
Nicholson, 126
supra; Nicholson
it as of
v.
parent
entitled
neither
1964); Hedman Hed
being equal,
N.W.2d
things
right,
other
but
man, 62
Miller v.
(N.D.1954);
it should
N.W.2d 223
years,
is of tender
the child
Miller,
558,
(1949).
76 N.D.
the father.” Section January very one female child of a C.C. age placed tender The other female mother. power of the court respect to the very in the age, placed also of tender actions, provides: our statute *4 custody of the father. the Now later, years applied a little has for over two divorce, court, be- thе for “In an action custody application for cus of Sherie. Her give may such judgment, after fore or tody light in must be considered the of what care, and edu- custody, the for direction original happened has since decision. the marriage as the children of cation of the Hedman, Bry in supra, Hedman v. followed may and necessary proper, or seem may Bryant, supra, ant and Hel v. Guldeman v. any the same time.” modify vacate or ler, in supra. The factors for consideration 14-05-22, N.D.C.C. Section a dеtermining whether there should be well has been statutes it above the Under change custody the attitudes the are inter- the best state established divorce, parents the child since the toward in the children ests and welfare child, change of circum age аny of the controlling con- paramount and are matters stances, party, the conduct of the custodial are parents siderations, the interests and parents, their financial the morals of the welfare of the secondary to considerаtion conditions, any other matters children. of their Hed upon bear the welfare of the child. Hedman, However, par supra.
man v. has in trial court amount considerations In divorce cases he of a child shall reference whom the with continuing jurisdiction minor its are parents awarded after the divorce of education custody, care and of the child. Kinsel the welfare parties. v. Kinsella children of important v. The are Azar interests (N.D.1970); la, 764 181 N.W.2d only Blan extent of how their interests to the Azar, (N.D.1966); 148 146 N.W.2d (N.D. question of what is for Blanton, bear best 608 142 N.W.2d ton v. Hedman, supra. 800 the child. Hedman v. ; Bryant, Bryant 102 N.W.2d 1966) v. Eisenbarth, 91 v. Eisenbarth (N.D.1960); Olson, Olson v. (N.D.1958); 186
N.W.2d appears, case, in It the instant (1950). 689 43 N.W.2d 77 N.D. the mother of the child has had success is marriage
ful
since her
There
divorce.
that she
no indication from
record
of cаses
in a number
have held
We
younger
good
not been a
custody of
should award
the court
child,
custody.
Her
inter
who is
her
husband
best
with the
in accordance
children
having
that he is desirous
Sherie
interests
testified
that the
of the children
ests
home,
home,
come into their
accord
only to the
important
parents are
home;
evidence,
good
is
interests bear on
of how
extent
willing
give the
ready
that he
the children.
best for
of what is
question
necessary care, love and attention to Sher-
(N.D.
Sabot,
59
187 N.W.2d
Sabоt v.
that his
ie in
He testified
Ficek,
437
that home.
186 N.W.2d
Ficek
1971);
v.
pay
per
month.
Noakes,
take-home
about
N.W.
$500
Noakes v.
(N.D.1971);
paternal grandparents provided
since the divorce
During
good
principally
living
home for
while she was
has been
them,
judge,
although may
trial
it
bе that
paternal grandparents.
bench, stat-
could
criticized for
from
overzealousness
ruling on
matter
and,
overprotectiveness
with Sherie
of her.
ed that he had talked
record,
stated:
awarding custody
matter of
“ * * *
say that she is
I
might
what
I
vested
large
сhildren
discretion is
child;
young
I would
a wonderful
call
court,
the trial
and its decision will ordi
good
properly,
raised
say she has been
narily
only
be interfered with
when there
better,
Mr.
grandparents,
(Guldeman
is an abuse of that discretion
v.
Goff, Sr.,
than most
George
and Mrs.
Hellеr, supra;
Azar, supra;
Azar
Blan
v.
children;
parents raising
but
natural
Nicholson,
Blanton, supra;
ton v.
Nicholson v.
time in her life
comes a critical
there
pra;
Bryant
Bryant,
v.
supra)
su
now,
brought and her
being
this action
findings
clearly
its
(Fergu
erroneous
establishing what
mother remarriеd
Ferguson,
son v.
together their and have a home of own, I the natural father mother. VOGEL, J., being not a member of the anything can’t see to dо here but on Court at the time of submission of this Paragraph grant change motion that participated case on briefs filed. custody to the mother.” father have circumstances PAULSON, Judge special- (concurring changed also that he has ob- the extent ly)- tained to be of which I concur in the result. permanent a Minneapolis, Minne- nature Except for made to the sota. visitations 1, 1971, August Since the effective date father, pa- with her amendment to Rule our 52(a) Although grandparents. ternal the father Proсedure, applied Rules of Civil we have contemplating marriage, no we have “clearly test in erroneous” indicating evidence in this the feel- record findings whether of a trial court ings or desires his fiancee Ferguson Fergu should be set aside. In excеpt to Sherie as indicated the testi- son, 202 1972), N.W.2d 760 mony paternal grand- father. involving is case they testified that love sue, said, paragraph sylla we 3 of the they willing and able to continue bus: to care for her in home her fa- until home, “Findings party ther that a to divorсe ac- remarries and establishes adultery, give up has committed gladly time will tion par- live with of the children him and It is evident wife. §55 served would be action to a divorce ties children to
by awarding other, opposed party
one as be- property particular division a divorce action parties
tween the appropriately dealt with
equitable, are Consequent-
appeal findings of fact. findings is limited
ly, of these a review of whether
to a determination within the ‘clearly erroneous’
they are N.D.R.Civ.P.”
purview 52(a), of Rule opinion after signed Teigen
Justice reference debate considerable syllabus. paragraph
above opinion justification
I find rio have, both we
diluting rule which rule-making power de-
through our supporting 52(a), Rule
cisions of this court
adopted.
ERICKSTAD, J.,C. concurs. *6 Dakota, Plaintiff/Appellee,
STATE of North STEELE, Defendant/Appellant.
John
Cr. No. 436.
Supreme of North Dakota. Court 24, 1973.
Oct.