Ludwig v. Burchill

514 N.W.2d 674, 1994 N.D. LEXIS 77, 1994 WL 101336

• Court: North Dakota Supreme Court
• Decided: March 30, 1994
• Docket: Civ. 930270
• Status: Published

Opinions

LEVINE, Justice.

Allen Burchill appeals from an amended judgment awarding custody of his son to the child’s mother, Alana Ludwig. We affirm.

Burchill and Ludwig were married June 30, 1984 and divorced May 24, 1989. They had one child during the marriage. The original divorce judgment awarded custody of the child to Burchill during the school year and to Ludwig during the summer. In 1990, Ludwig moved for a change of custody. The trial court denied her motion and we affirmed in Ludwig v. Burchill, 481 N.W.2d 464 (N.D.1992). In 1993, Ludwig again moved for a change of custody. The trial court granted her motion, awarding custody to Ludwig during the school year and to Burchill during the summer. Burchill appealed.

Burchill first argues that the trial court erred in modifying custody because there were no changes in circumstances that so adversely affected the child to require a change in custody to foster the child’s best interests. Particularly, Burchill argues that there was no evidence that his second DUI conviction and his continued drinking adversely affected the child.

We treat a trial court’s custody determinations as findings of fact and review them under a clearly erroneous standard. NDRCivP 52(a); e.g., Foreng v. Foreng, 509 N.W.2d 38 (N.D.1993) [original custody determination]; Johnson v. Schlotman, 502 N.W.2d 831 (N.D.1993) [modification of custody], A finding of fact is clearly erroneous if it is induced by an erroneous view of the law, if no evidence exists to support it, or if the reviewing court, on the entire evidence, has a definite and firm conviction that the trial court made a mistake. E.g., Johnson v. Schlotman, supra.

In a change of custody determination, the trial court first must determine whether a significant change of circumstances has occurred since the prior custody decree, and if so, whether that change so adversely affects the child that it compels or requires a change in custody to foster the child’s best interests. E.g., Hagel v. Hagel, 512 N.W.2d 465 (N.D.1994); Johnson v. Schlotman, supra at 834; Delzer v. Winn, 491 N.W.2d 741, 743-14 (N.D.1992); Blotske v. Leidholm, 487 N.W.2d 607, 609 (N.D.1992).

We believe that evidence exists that the change of circumstances in this case so adversely affected the child that it required a change in custody to foster the child’s best interests. The trial court did not make an express finding that the change of circumstances in this case adversely affected the child. However, we may infer from the findings it did make that the trial court determined that the child was affected adversely by the change in circumstances. Guthmiller v. Guthmiller, 448 N.W.2d 643 (N.D.1989). In the original judgment, which awarded primary custody to Burchill, the trial court found that Burchill was better able to provide “a good home and the attention and care that a young boy so badly needs,” whereas Ludwig’s future was “very uncertain.” The trial court also noted that “[b]oth of the parties have had a problem with alcohol.”

The trial court denied Ludwig’s 1990 change of custody motion, opting in favor of maintaining the stability of Burchill’s relationship with the child. We elaborated the circumstances underlying the trial court’s resolution of Ludwig’s first motion in our previous opinion. See Ludwig v. Burchill, supra at 466-69. Of particular importance to this appeal is the trial court’s emphasis at the time of the first motion on two conditions: that Burchill would switch the hours of his job from the night shift to the day shift and Burchill would “attend Alcoholics Anonymous at least twice per month and ... secure a sponsor.” The trial court was sensitive to Burchill’s alcohol abuse and DUI conviction, and to the effect of Burchill’s night-shift hours on the child’s day-to-day care and schedule; however, it reasoned that Burchill was in a transitional period and had plans to stabilize his life. It was to allay these concerns that the trial court ordered Burchill to attend AA and assumed that Burchill would adjust his work schedule to allow a more stable and consistent relationship with his child. See Gravning v. Gravning, 889 N.W.2d 621, 628-24 (N.D.1986) [approving of trial court’s conditional custody award on basis that conditions were “connected to the background and circumstances of these parents” and “[ jrelated to the well-being of the child”].

At the time of Ludwig’s second change of custody motion, however, both the trial court’s expectations and Burchill’s good intentions had failed to materialize. Burchill had not attended AA except on four occasions in 1991. He continued to drink and was convicted of a second DUI charge. He continued to work the night shift at his job, which would result in the child’s spending every night but four each month at Burchill’s parents’ home. The trial court found that Burchill had changed from “a lead actor to a supporting role” in his parenting responsibilities. Burchill’s second DUI conviction was particularly significant to the trial court, as it “sent a key message ... that [Burchill] opted to continue to drink alcohol and risk losing custody.” The trial court was persuaded by expert testimony that Burchill’s second DUI conviction was “a ‘hard indicator’ of alcohol dependence and that such dependence has a negative effect on parenting skills,” particularly Burchill’s ability to provide transportation while his license was suspended and the further-reaching effect on the child of growing up with an alcohol-dependent parent. The trial court found that Ludwig, on the other hand, had successfully stabilized her life and had “a pivotal lead” over Burchill in moral fitness and mental and physical health.

In effect, the trial court found that Burc-hill’s failure to attend AA as ordered by the trial court, his continued drinking and second DUI conviction, his failure to change his work schedule, and his abdication of his parenting responsibilities to his parents, juxtaposed against Ludwig’s newly stabilized life, constituted a significant change of circumstances that required a change in custody. There is evidence to support the trial court’s determination that this change, particularly Burchill’s second DUI conviction and continued drinking, so adversely affected the child that it required a change in custody to foster the child’s best interests, and we are not left with a definite and firm conviction that the trial court made a mistake.¹

Burchill also challenges several findings of fact, essentially on two grounds. First, he argues that the trial court erred in its weighing of the evidence. But it is up to the factfinder, not us, to weigh conflicting evidence. The mere fact that we might have viewed the evidence differently does not entitle us to reverse the trial court. Reede v. Steen, 461 N.W.2d 488, 440 (N.D.1990). Second, he complains of misstatements in the memorandum opinion. But these errors were corrected in the trial court’s order for second amended judgment and are not, in our opinion, substantive. We conclude that the trial court’s findings are not clearly erroneous.

Finally, Burchill argues that the trial court erred by denying his motion for appointment of a guardian ad litem. He asserts that NDCC § 14-09-06.4 requires the trial court to grant such a motion. We disagree. Section 14-09-06.4 provides:

“In any action for an annulment, divorce, legal separation, or other action affecting marriage, where either party has reason for special concern as to the future of the minor children, and in actions affecting the marriage relationship where the custody of such children is contested, either party to the action may petition the court for the appointment of a guardian ad litem to represent the children concerning custody, support, and visitation. The court, in its discretion, may appoint a guardian ad li-tem on its own motion. If appointed, a guardian ad litem shall serve as an advocate of the children’s best interests. The court may direct either or both parties to pay the guardian ad litem fee established by the court. If neither of the parties are able to pay the fee, the court may direct the fee to be paid, in whole or in part, by the county of venue. The court may direct either or both parties to reimburse the county, in whole or in part, for such payment.”

We do not read the language of section 14-09-06.4 as removing the appointment of a guardian ad litem upon a party’s motion from the trial court’s discretion. See Healy v. Healy, 397 N.W.2d 71, 75 (N.D.1986) [holding that a trial court may appoint a guardian ad litem on its own initiative at its discretion]. Here, the trial court denied Burchill’s motion because it was “satisfied that it [could] consider the best interests of the child involved without the appointment of a guardian ad litem.” The trial court had presided over and decided the first motion for modification after appointing a guardian ad litem and obviously was familiar with the background of the case and the circumstances of the family provided in the prior report of the guardian ad litem. We conclude the trial court did not decide Burchill’s motion in an arbitrary, unreasonable, or unconscionable way, see Swanston v. Swanston, 502 N.W.2d 506, 509 (N.D.1993), and, thus, did not abuse its discretion.

Affirmed.

VANDE WALLE, C.J., and NEUMANN and SANDSTROM, JJ., concur.

1 . While the dissent’s analysis of the law may be beyond reproach, its application of that law is unacceptable because it is rife with de novo factfinding. Were we the factfinders, we may well have picked and chosen the same facts to rely upon as the dissent has, without deferring to the trial court's express or implied findings. But then, we also might have relied on Dr. Neil Clark's testimony about his concerns stemming from Burchill's continued use of alcohol:

"p?]he consequences have been considerable in the sense that, you know, the cost associated with DUIs and the suspension of license as well as the complications that Mr. Buchill is dealing with in his custody matters. The typical thing would be to recognize that alcohol creates problems that are both expensive and having ramifications that affect many areas of one's life.

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"And that continuing pattern of drinking could result in further problems, especially in the DUI context.

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"[I]t is well known that the alcohol disease [is] progressive generally with continued use of the substance. So obviously the best course of action for an individual that's dealing with those kinds of symptoms and those kinds of issues would be to engage in abstinence and participate in whatever kind of supports that would be helpful in helping them to maintain a program of abstinence. That's the only surefire approach to not have progression in the disorder and further complications in terms of impacts on their life or lifestyle.

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“Mr. Burchill did report that he did not feel comfortable attending those AA meetings, so I guess, you know, the thing that would concern me is what is the alternative course of support for maintaining a program of abstinence. At this point in time in my knowledge, AA is the best known method of doing that, including hospital and outpatient treatment programs. What I'm saying is it’s the only known method that has a substantial success rate.”

Or we might have relied on other parts of James Monson’s testimony, which the dissent leaves out:

"I think [Burchill] had one or two beers during the outpatient program. That was against treatment expectations. Didn’t really get involved in AA, didn't feel comfortable there, although that's not that uncommon, continued to drink, got another DUI, the last one, I believe, which was in June of '92, and has continued to drink even after the DUI and knowing that his wife was going to make it an issue, should he continue to drink. And he’s continued to drink.

"So that to me is all demonstrative of a fairly high level of denial. If he was concerned about not losing his child and not continuing to have troubles related to drinking and he didn’t have a problem with drinking, then I doubt that he would continue to drink.

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"My recommendation [for Burchill] is that he not drink and look into trying AA again. I'm not recommending treatment right now because his drinking pattern isn’t serious enough to warrant a full outpatient or inpatient program. But just because his drinking isn’t currently out of control doesn't rule out the presence of alcoholism. That’s why I concurred with the diagnosis of alcohol dependence that was made earlier by Will Brink. He shouldn't really be drinking.

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“Before a person will have a period of out of control drinking as [Burchill] did prior to his drinking and during the problems with his marriage he was having, which he talked about freely with me, and then go into a period of ... what appears to be managed drinking, and then later on if there’s another cris[i]s or something happens, you know, he could easily find himself in another period of out of control drinking. So yes, that’s [increasing number of family- and employment-related problems] very likely if he continues to drink.”

Our role as an appellate court does not include factfinding. Our standard of review requires us to leave that to the trial court. See NDRCivP 52(a) ["Findings of fact, whether based on oral or documentary evidence, shall not be set aside unless clearly erroneous, and due regard shall be given to the opportunity of the trial court to judge the credibility of the witnesses.”] The trial court may pick and choose among the evidence; however, we may not.