*1 contractual commit- ment of No Miller. required Mid-Am to LUDWIG,
ment existed which formerly Alana destroyed FF E of replace worn out or & Burchill, Plaintiff and Miller’s. Appellant, what, prove any, if Miller failed to missing Mid- equipment when is, premises, Am vacated the there BURCHILL, Allen therefore, upon no basis factual Appellee. conversion, find if this Court could No. Civ. 910201. any did occur. fact conversion firm not and definite We are left with Supreme Court of Dakota. North a mis- conviction that the trial made Feb. finding prove failed Miller take that conclude, therefore, conversion. We findings clearly are not
the trial court’s
erroneous. argues
Miller Mid-Am continued to equipment “in or more restau- beyond origi- the court had
rants” the date
nally prem- ordered to vacate the Mid-Am
ises, resulting in “an admission that Mid- ownership no
Am claims interest
property not the eviction date removed Miller cites
or its extensions.” no authori- support argument.
ty to this novel The specifically found Mid-
district property:
Am did abandon the
Mid Am’s to vacate failure in, specified
restaurants the time within May 19,
and under the terms order, such
eviction or within later ex- agreed parties,
tended dates to either an
does amount abandon- equipment nor does it
ment to a has a
amount concession Miller equipment superior that is
claim on Mid Am. finding clearly is not
We conclude that
erroneous. dismissing Miller’s com-
plaint prejudice is affirmed. C.J.,
ERICKSTAD, VANDE WALLE and
LEVINE, JJ., JAHNKE, District
Judge, concur.
JAHNKE, Judge, sitting District due to resignation H.F. of the Honorable III.
GIERKE
465 21, 1991, 18 and March the district change motion denied Alana’s for a of cus- tody.1 appeal This followed. a trial re When court’s custody garding appealed to this Court, we review the court’s decision “clearly under the erroneous” standard of Ebertz, 52(a), Rule N.D.R.Civ.P. Ebertz v. 651, (N.D.1983); 654 338 N.W.2d v. Silseth (N.D.1974). 214 N.W.2d Levang, 361 We custody will not disturb a trial court’s unless, record, upon award review of firm are left with a definite convic has tion that a mistake made. Miller been Miller, (N.D.1981); 666, v. 671 Gross, (N.D.1979). 287 Gross v. N.W.2d 457 previously We have noted that a origi distinguish trial court must custody decisions modi nal and decisions to fy Heinen, custody. Heinen 452 v. (argued), Fargo, Johnson Leslie Deborah 331, (N.D.1990). original 333 In an N.W.2d appellant. plaintiff for custody proceeding, court focuses the trial (argued), City, solely on interests of the Valley Nelson what best Carol S. seeking appellee. child. Id. in an action defendant and modify custody, generally, a court must ERICKSTAD, not there has Chief Justice. first determine whether or significant change of circumstances been a appeals Ludwig judg- from the Alana decision, and, if previous custody since Barnes ment of the District Court for so, or not then determine whether denying modify her a County, motion change in circumstances is such that previous judgment granting custody of custody inter change in will serve the best Allen parties’ child to her former husband Additionally, the of the child. Id. ests Burchill. We affirm. significant “burden of 1989, 24, May On to this case requires circumstances time, joint custody At that were divorced. custody party seeking modifica is on child, then parties’ three-year-old of the custody award.” Id. tion Justin, so ordered that Alana would recognized, general custody 1 physical to Au- We have June inter 15, physical “that not in the best gust proposition, and Allen would have change cus August May unnecessarily 15 31 of each of a child to custody from ests 13, bandy and forth 1990, tody filed a the child back year. August On 293 parents.” Lapp, re- v. custody. Lapp At the between the motion for 121, (N.D.1980); Alana, also quest guardian litem was 128 see Sil ad N.W.2d 1990, 214 364. With appointed September 4, pursuant Levang, at on seth v. N.W.2d 14-09-06.4, Also, mind, “[cjonseeu- at we have N.D.C.C. said section Alana, court, custody cannot on determinations about request district tive 9, as the 1991, change custody back and forth January ordered both or about par slightly first one psycho- toward to an scales settle to submit alcohol circum- hearing on then the other as their logical After a ent and evaluation. rights. changes Although modify make small visitation declined to arrangement, did the court current Olson, ages eight. nine and Mr. change.” are stances Orke Rather, (N.D.1987). manager propane depart- assistant N.W.2d “[t]he Ludwigs ment at Cenex in Casselton. The weigh change of circumstances must expecting July their first child in are interests against the child’s best before *3 Ludwig’s 1991. The home has four bed- justified.” Miller v. appear adequate and would to have rooms Miller, at 672. room for Justin. case, court, in its memo- In this divorce, time of the Defen- “At the following opinion, considered the randum farming operation. dant was involved his circumstances, they changed relevant setbacks, Due to economic the Defendant statutory factors to related to various farming has left and has moved to James- regarding custody, contained be considered town, Dakota where he in the North works 14-09-06.2, in section N.D.C.C.: receiving department of Wal-Mart. He 14-09-06.2, lists the “Section N.D.C.C. vari- unmarried, Christensen, dating but Karen to considered cus- ous factors be sleeps on At with whom he occasion. decision, making tody. In its the Court will shift, night present, the Defendant has a consider these factors as set forth likely hours but his are flexible so that looking statute. In at the facts that fol- day he could convert to a shift. The Defen- low, the Court believes there are several living and are with Defen- dant Justin changed circumstances and these will be family dant’s sister and her while the De- self-evident. housing. fendant secures The Defendant love, affection, “1. The and other emo- plans purchase to a house. existing parents tional ties between the parties high “Both have a school edu- and child. earning capacities. cation and have similar “Judge Hoberg parties noted that both parties’ disposition The Court finds that the changed. This has not The loved Justin. food, provide clothing, medical care and Plaintiffs affection equal. other material needs to be Defendant’s, open this more than the but length “4. has The time the child public lack of affection should not be inter- stable, satisfactory lived in a environ- preted as a lack of love. The factor bal- desirability maintaining ment and the evenly parties. ances between the two continuity. capacity disposition “2. The “Justin lived with birth love, parents give the child affec- the time of the divorce. It has now until tion, guidance and to continue the years been almost two since the divorce. the child. education of time, During exception with the equal ability “Both to have seem his periods, visitation Justin has lived with provide these necessities to Justin. The years very im- pre-school father. The are position improved Plaintiff's has since the forming portant in a well-rounded individu- entered divorce as she has into her third al. marriage which seems stable. advantage has on the “The Defendant disposition parents “3. maintaining continuity issue of as Justin provide food, clothing, the child with years. has been him the two with care, medical ... and other material advantage Another the Defendant has is needs. group larger support he has a divorce, the “At the time of the Plaintiff family His sister and her as well as Justin. living out of wedlock with David Lud- paternal grandparents live Justin’s wig working pizza and was assembler. The Defendant’s brother and Jamestown. Valley City, She is now married to Mr. his live north of North Casselton, living spent North Dakota where life Dakota. Justin has his argu- They people strong she is a full time hairdresser. rent a and there is a these couple made that this love and home where the live with Mr. Lud- ment that can be wig’s prior marriage, support continue. two sons from a should Plaintiff, toss-up “This issue seems to be be- her “Through no fault parties. They represent- are tween the two has sister group is smaller. She support generation today. course, husband, younger ative of the David. and, her near Marriage seriously. is not taken Unlawful this at was made of Though little mention By today’s is the norm. stan- parents do live cohabitation Plaintiffs hearing, the dards, they conclude that fall in maintaining con- one must On the Hope area. in the average range of moral fitness. To issue, tip in favor of the tinuity the scales credit, getting parties are older both Defendant. steps through taken some and each has satisfactory of stable “On the issue counseling improve themselves. environment, may have an the Plaintiff *4 health physical in “7. The mental and remarriage and a house edge due to her parents. kept in mind the It should be to live. may disadvantage the Defendant good physical in “The are both he is temporary as this issue is have on psy- undergone health. Both changing resi- when he is caught at a time chological dependency and chemical evalua- temporary this as The Court sees dences. tions. in nature. psychological “The Plaintiffs evaluation unit, 'permanence, “5. The normally adjusted par- revealed a suitable proposed custodial existing or of home. Ludwig’s revealed the ent. Mr. evaluation The Plaintiff’s chemical de- same results. revealed no chemical pendency evaluation permanence of the Defendant “The dependency. to be secure. family unit seems his son as a single, the issue of Defendant is
As the psychological Dependant’s “The [sic] is not an is- affecting permanence divorce revealed an ‘individual evaluation sue. symptomatology depression mild some to the stresses of a may be related thirty and into her third which “The Plaintiff is de- custody dispute.’ The chemical hopes that certainly marriage. The Court outpatient resulted in pendency evaluation marriage last. When that will this is included seventeen ses- fifty per treatment which approximate considers the one completed. Plaintiffs sions which rate with the cent marital failure However, up Alco- he did not follow with record, as the future is not past marital pre- as Anonymous attendance was holics optimistic as it could be. done original evaluation was scribed. advantage being had the “Justin has due to a DUI pursuant to Court order goes the attention that only child and an of 1989. in December conviction father, stay he with his it. Should with person that either is no evidence contin- “There continuity would this attention and The De- illness. mental suffers ue. dependency evaluation fendant’s chemical it argument can be made “The However, edge to the Plaintiff. gives an him with more to live would be better participation active believes that the Court any advantages children. It seems Anonymous would continue in Alcoholics disadvantages outweighed by the would be treat- stages of the Defendant’s the last step-brothers and with two were he live program. ment in Stepping or sister. new half-brother home, community school and step-brother to “8. The being year old a five the child. natural record eight year old brothers nine and say least. Even traumatic to could be City Valley preschool attends “Justin breakup of the more traumatic would be litem’s guardian ad day per week. The one exposure marriage. Plaintiffs Such unpre- indicated an report investigation and negative very experience would have this behavior some social child with dictable impact on Justin. majority of this problems. recanted at negative information parents. “6. The moral fitness of single parent, Ament, being a is conviction and who one of Justin’s Mrs. taking is needs a support The Defendant also must that he teachers. conclude Kindergar- steps enrolled in cope have his son with group help prob- him these lems, ten in the fall. as his abuse alcohol. Alco- well Anonymous outstanding holics has an track preference “9. The reasonable participated record should be child. Defendant. years only five old and as “Justin is inap- Court determines that cases, result the “As we are not all pa- him propriate inquire dealing parents. Nor in perfect preference. rental party it to which case is clear cut as is parent. is evident that Jus- better What “10. and 11. The existence domestic making progress present under the tin person and a violence affect Primarily custodial framework. for rea- interests. child’s best maintaining continuity in sons of a stable reference will be “Other than a larger stronger sup- environment and domestic violence made Number family, the porting extended Court will issue this case. Nor has really not an *5 deny and the Plaintiff’s Motion will contin- any person the been alerted Court physical custody the ue the significantly affect child’s best original Judgment. outlined in the Joint interests. legal custody continue as well. The shall “12. relevant Other factors. required to Defendant will be attend Alco- testimony considerable at tri- “There was per Anonymous at least twice month holics party’s shortcomings. each al sponsor.” and should secure petty influ- Much of this was and did not appeal, Alana asserts that On the ence A few miscellaneous the Court. weight give court did not sufficient to the factors that are relevant will be addressed litem,2 guardian recommendations of the ad in this section. that the trial did and further asserts court Court, litem, guardian like the “The ad give weight to the fact that sufficient Ludwig at concerned about the Allen and had moved from the fami- Justin by minimized Plain- home. These were home ly farm Allen’s sister’s in James- tiff, change warning signs this does but living sharing arrange- town and were underage person consuming such al- as an and ments with his sister brother-in-law breaking Ludwig home and cohol in the children, as well and two as Allen’s of a window. working “night parents; that Allen was arguments “A further concern and shift”; had received a and that Allen DUI the Plaintiff her new fighting between and alcoholic; diagnosed was as a mild Considering the Plaintiff’s husband. using profane language Justin had started failures, alarming it is somewhat marital anger signs had frus- and exhibited and so that these confrontations have started tration; signifi- situation that Alana’s had marriage. Perhaps soon the Plain- in this stabilized; cantly improved and and that counseling marriage tiff’s was not suffi- signficantly she and her husband earned continued, though it cient should be and Allen. money more than will not ordered. As to the move from the farm and “The Defendant has been evaluated as arrangements, living the current He being a mild alcoholic. is resistant Allen, concluding specifically believed Anonymous. attending Alcoholics When just temporary. that his situation was the recent of di- one considers stressors Likewise, Al- venture, trial court concluded that vorce, farming failed flexible, residence, so that he len’s work schedule was employment, a D.U.I. during year essentially the summer. guardian litem school and with Allen 2. ad recom- during that Justin live with Alana mended against to be As mination “day shift.” likely switch could clearly erroneous. and subse- DUI conviction Allen’s recent alcoholic, a mild diagnosis as quent reasons, For the aforementioned Allen attend strongly suggested that of the district court is affirmed. Anonymous twice a month and Alcoholics WALLE, J., guardi- and ALLAN sponsor. As to the YANDE that he secure SCHMALENBERGER, Judge, District suggested that report which an ad litem’s concur. problems, may have some behavioral Justin that much of the fac- noted
the trial court
SCHMALENBERGER, District
ALLAN
conclusion
such a
tual basis for
Court,
sitting
Judge,
with the
due to the
at trial
litem
recanted
guardian ad
resignation of the Honorable H.F. GIERKE
Ament,
of Justin’s teachers.
Mrs.
III,
20, 1991.
as of November
recognized
although the trial court
Lastly,
LEVINE, Justice, concurring specially.
im-
situation had
Alana’s overall
expressed some con-
the trial court
proved,
specially
I
to address a trouble
write
reports
at
cern over
incongruity in our case law. Justice
some
fights
reported
home as well as
said, “A
Wendell Holmes
word is not
Oliver
and her new husband.
transparent
unchanged;
it is
crystal,
thought
may vary
living
the skin of a
by recognizing that
We limit our review
according
to its
greatly
color
content
position to
in a better
the trial court is
circumstances and the time which
credibility wit-
judge the demeanor
425,
Eisner,
used.” Towne v.
U.S.
we
weigh the evidence than
nesses and
158, 159,
(1918).
Lan
62 L.Ed.
38 S.Ct.
record to review.
only the cold
who have
use
guage
pliable,
is a
flexible tool
*6
Ebertz,
at 654. The
338 N.W.2d
Ebertz v.
slip
pen may
of
communicate. A
the
may
the
fact that
have viewed
mere
we
slip
in
unintentional
of the mean
result
an
the trier
differently had we been
evidence
to a word or
ing we intend to attribute
the
entitle us to reverse
of fact does not
I
this phenom
or sentence.
believe
phrase
Steen, 461 N.W.2d
court. Reede v.
trial
expres
in our
explains the dissonance
enon
(N.D.1990).
440
sion,
legal principles
the
years,
the
of
over
change-of-custody
cases.
at stake
Also,
places reliance
note that Alana
we
we
this Court wherein
on
decisions of
of a
to warrant modification
In order
change
custody
court’s
of
affirmed a trial
a
change custody, there must be
decree to
to this case. See
award with facts similar
that
change of circumstances
significant
Ebertz,
338 N.W.2d
e.g. Ebertz v.
custody in
change
the best
requires the
similarity arguing the
Cross,
v.
374
of the child. Cross
interests
affirmed a
and cases wherein we
this case
Olson,
(N.D.1985);
v.
Olson
N.W.2d 346
custody ignores this Court’s role.
change of
(N.D.1985).
every
It is not
249
uniformity of
the
role is not to ensure
Our
that
change in circumstances
significant
Rather,
facts.
our
results under similar
custody.
only
change in
It is
warrants
ensuring that
the
role is limited to
change in circumstances
significant
that
clearly erroneous.
is not
court’s decision
necessitates,
child’s
foster the
best
v.
interests,
change
custody.
Orke
See
reviewing
record and the trial
After
the
(N.D.1987);
v.
Olson,
Miller
swered in the recognized context of the
overriding maintaining benefit in the stabil-
ity continuity parent- the custodial relationship by looking and not at the