*1 301 objects to the specific questions.6 Sadler al special question of the first WRIGHT,
content Tammy L. “Were the modifi- verdict form which asks: Appellant, Employ- cations and revisions to the Basin Handbook made from 1980-1985 re- ee’s employ- WRIGHT, garding reasons termination Lorin G. applicable
ment to Donald Salder?” Appellee. special Submission of verdicts is Civ. No. 880145. 49(a), governed by Rule N.D.R.Civ.P. The Supreme Court of North trial court has broad discretion over the Dakota. scope questions nature and sub written 8, Nov. jury, appellate to the review is mitted determining not there limited to whether or Victory
was an abuse of discretion. Park Axelson, 367
Apartments, Inc. v. N.W.2d (N.D.1985).
155 We remanded to allow the
jury to determine “whether or not subse
quent changes employee in the handbooks existing employ apply
were intended to at the time were issued.”
ees Sadler
1,
district court’s question jury to the and find no abuse
of discretion. herein, the reasons affirm
For stated we of the district court based
upon jury verdict in favor of Basin. WALLE, JJ.,
GIERKE VANDE
concur. MESCHKE, JJ., concur
LEVINE
in the result. _x_ no_ special pertinent part
6. The verdict form in as YES jury "(If follows: questions yes, answered to both 2 and are answers "We, Verdict, Jury, Special sign your for our an- return verdict. If either an- no, questions 4.) swer the set forth herein in accord- Question swer is answer given ance with the instructions by us and find "QUESTION NO. 4: Did Donald Sadler sustain greater weight of the evidence: any damages as a result of his termination "QUESTIONNO. 1: Were the modifications and from Basin? Employee’s revisions to the Basin Handbook YES_ "(If NO_ regarding made from 1980-1985 reasons 4, no, Question yes, answer is answer # employment applicable termination return.) sign and Donald Sadler? damages "QUESTION NO. 5: What amount _X_ NO_ YES by Donald were sustained Sadler? "QUESTIONNO. 2: Was Mr. Sadler terminated $-— position 'just from his cause’? January “Dated: _X_ NO_ YES /s/- "QUESTIONNO. 3: Did Basin Electric follow its OF THE JURY” FOREMAN procedures handbook for reduction in force when it terminated Mr. Sadler? *2 Erickson, Serkland, Lundberg, Marcil & Ltd., McLean, Fargo, plaintiff ap- for pellant; argued by Maureen Holman. Williston, Zander, Anseth & for defend- appellee; argued ant and Janet Holter Zander.
LEVINE, Justice. Wright from appeals an order chang- judgment modifying divorce ing of her two minor children father, Wright. We to their reverse and remand. Wright and Lorin were married years when were on five divorced
May 27,
They
stipula-
into
entered
di-
incorporated
tion
was
into the
which
judgment.
vorce decree
granted Tammy
physical
the primary
custo-
dy of
minor
Elizabeth and
the two
granted
Nicole. Lorin was
liberal visita-
divorce,
tion.
the time of the
Elizabeth
At
years old
Nicole
almost
was four
was
three
old.
years
7, 1987, Tammy brought a
August
On
girls
motion to
Williston,
from
Dakota to Missouri
North
Louis
to attend St.
order
support-
In her
University
of Law.
School
affidavit,
ing
Tammy stated that she
Tammy appealed,
asserting
for the
to live
that the trial
arrangements
made
change custody
decision to
Louis,
court’s
near her
her in suburban St.
agree.
erroneous. We
family.
further indicated as “reason-
She
return to
possibility”
able
that she would
A
modify
trial court’s decision to
*3
following
North Dakota
her law school
custody
subject
clearly
is
to the
erroneous
graduation.
In the event Lorin submitted
of
Pitsenbarger
standard
review.
v. Pit
change of
“retaliatory
a
cross-motion for a
662,
(N.D.1986);
382
senbarger,
N.W.2d
664
custody,” Tammy requested the court to
52(a)
finding
Rule
NDRCivP. A
of fact
authorizing the
grant an interim order
clearly erroneous when there is no evidence
change of residence.
it,
when,
support
although
to
or
there is
it,
support
reviewing
some
to
the
evidence
anticipated by Tammy, Lorin
As was
sub-
evidence,
court on the entire
is left
awith
sequently
modify
moved to
the divorce
definite and firm conviction
a mistake
that
requesting custody
the chil-
Landsberger
has been made.
v. Landsber
supporting
alleged
Lorin’s
affidavit
dren.
918,
(N.D.1985).
ger, 364 N.W.2d
920
A
circumstances,
changed
as
his concern with
finding of fact
is also
erroneous if
Tammy’s inability
provide
to
for the chil-
by
induced
an erroneous view of the law.
health,
physical and
her
dren’s
emotional
Bohara,
743,
Manz v.
367
746
N.W.2d
adequate
inability
provide
to
for an
home
(N.D.1985).
Louis,
drugs,
her use of
and Lorin’s
St.
emotional health
concern
the children’s
There is a distinction between an
affi-
moved from Williston. Lorin’s
original
custody
award of
and a decision to^
that, although
davit disclosed
most of these
Miller,
modify custody. Miller v.
305
666,
(N.D.1981).
conditions existed at the time of the divorce
original
N.W.2d
671
keep ap-
custody
solely
he
award revolves
around the
stipulation, he believed
could
Id.;
best interests of the children.
NDCC
prised
by living only
the
a
situation
few
But,
(1981).
request
14-09-06.1
a
§
away from the children. Lorin
blocks
custody
modify
requires
the
award
the de
Tammy’s driving
moved for disclosure of
one,
termination of not
but two issues
tests,
record, compulsory drug screening
(a)
chronological order:
whether there has
children,
psychological
for the
evaluations
significant change
been a
of circumstances
study.
and a home
original
since the
divorce decree and custo
21,
hearing
August
After an initial
on
award;
(b)
dy
and if so
those
whether
1987, the court issued an interim order
changes are such that the best interests of
permitting
temporarily
move to
by
change in
the child would be served
a
October-17,
Missouri with the children from
97,
Olson, 411
custody. Orke v.
N.W.2d
99
19, 1987.
1987 until December
was
Miller,
Thus,
(N.D.1987);
supra.
the first
granted physical custody
of the
until
step
significant
is to determine if a
17,
October
1987. The court continued the
of circumstances has occurred. Without a
hearing
completion
until
of the court-or-
circumstances,
significant
there
parent’s respec-
dered home studies of each
can be no modification of "the
home, psychological evaluations of Lo-
tive
Pitsenbarger, supra; Koller
award. See
rin,
drug
Koller,
(N.D.1985).
and the two
a
v.
The trial court that stipulation time of the and continued until change of circumstances sur- material parties. trial. were not new rounding To the time of These the children and facts, determination, at time the court made were known to Lorin support this but entered; (1) decree therefore findings: Tammy moved to St. divorce three (2) Louis, college; “changed this was not a circumstance.” to attend Missouri supra. suggested psychological Bergstrom, evaluation coun- See seling Tammy, and indicated that her Further, sug finding the second potentially could cause emotional distress gests concerned with court was children; problems emotional Tammy’s psychological the effect of condi (3) is in primary home Willi- children’s *4 However, tion on the children. considera ston, stable; plans to and remain it is tion of the best interests of the children Williston, Tammy’s future is in whereas prerequisite in the second the modification uncertain. custody. signifi of There first must be a first the court’s find We believe change cant of circumstances as condi a ing is a custodial clearly erroneous. When precedent considering tion the in best change permission to the parent requests Okre, supra. Be terests of the children. children, a trial court no to support cause there was evidence this parent that will should determine whether circumstances, changed finding of we con regardless of the court’s decision to move clude it is erroneous. clearly that Lands Only the to in the allow children move. berger, supra. parent move event a custodial will without finding stability The third of the of that a the children does move constitute home, not a Williston does constitute purposes change of circumstances for of change justifying of a circumstances deciding companion change a of motion change custody of in a case where the custody. Tammy only Louis moved to St. change court refuses to of the allow granted permission the her to after court stability children’s residence. The of the children. The temporarily move the changed home is Williston not a circum apprised court was of the fact and stance, but indicates that the court was a change testified that her motion for of again considering the best interests of the denied, the residence were she children’s finding changed without first apart.” “could not be Fur finding prem This circumstance. was thus ther, custody changed once the court of the law, ised on an erroneous of the and is view Lorin, dropped children to out of clearly Manz, supra. erroneous. See immediately school and moved to law back circumstances, these Williston.1 Under we findings We conclude the trial court’s of firmly definitely are convinced that a significant change of circumstances were finding signifi mistake made in as a erroneous, and the trial court erred change in the fact cant circumstances that in modifying judgment. Accordingly, Tammy moved to St. Louis. portion we that of the reverse modified changes which of the finding to the court’s second As children. concerning Tammy’s psychological evalua tion, psycho challenges there is no indication that her also court’s trial changed logical change from the “denial” her status time of of motion to the resi- divorce, agree a scant months before. dence we few children. While that only to in changing custody, The evidence the record is the trial effec- court contrary. testimony tively change-of-residence indicated Lorin’s denied mo- tion, nothing appeal. his concern for children and rea- we have to review on Williston, Tammy Upon denying her return to unsuc- her motion Be- for reconsideration. cessfully moved for reconsideration of the order chang- cause find that the court we trial erred in changing urges custody. appeal On she aas ing custody, we need not reach this issue. ground for reversal the court’s trial error of the trial to me that findings pending and conclusions when both motions are denial; neither motion can decided in court do not refer to a nor does the be a vacuum. both, although in ef- judgment, amended
fect, deny the motion to the chil- Therefore, to
dren’s residence. we remand expressly decide the mo-
the trial court
tion to the residence of the children findings
and to draft or an alternative ex-
pression explain its resolution of the
issue.2 Dakota, STATE North Plaintiff REVERSED AND REMANDED. Appellee, GIERKE, JJ.,
MESCHKE and PEDERSON, Surrogate R. VERNON SCHMITZ, Rick Donavon Justice, concur. Appellant. PEDERSON, Surrogate VERNON R. Dakota, STATE North Justice, sitting place Appellee, *5 ERICKSTAD, C.J., disqualified. v. WALLE, Justice, concurring VANDE MATTHEWS, Tammy Kay specially. Appellant. agree by I with the result reached Dakota, opinion of North majority accompa- and most of the STATE Plaintiff am, however, Appellee, nying I rationale. concerned may dicta in with the footnote which be v. prescribe proce- read some to a fixed Wendy Kay WALTHER, Defendant dure to followed in those be instances Appellant. parent brings which the custodial a motion change residence and the noncustodial Dakota, of North STATE parent counterattacks with a motion for Appellee, change custody premised change on a proposed circumstances as a result of the Barbara Jean aka Barb MONSON J. change residency. Although proce- Monson, Appellant. Defendant and suggested by majority might dure have case, avoided result in this we should Nos. 880086 and 880101-880103. Cr. to the trial nevertheless leave courts Supreme of North Dakota. Court to, discretion, flexibility in their fashion a procedure fairly equitably re- will Nov. 1988. In competing solve the motions. some in- procedure might stances the better be to simultaneously the motions rather
resolve change
than to first resolve the motion to appears since it highlights proce- disruption case the defect in the in order to obviate in the chil- This cess competing utilized to resolve the motions provide parties dure and to all with a dren’s lives change change custody. of residence and for When, speedy complete dispute. resolution of the here, companion as is the case motion immediacy deciding motion The need for change dependent on whether duty should not deter the trial court from its the trial court denies a motion to fully the motions without undue haste resolve residence, ordinarily children's the trial court promptness. reasonable but with nonetheless should first resolve the motion to must assume the risk that a "last The movant Notwithstanding residence of the children. may minute” motion not receive what the mov- basis, request for decision on an “interim” may timely be attention. ant consider to piecemeal pro- trial court should avoid such a