Moody ex rel. Sax v. Moody

405 N.W.2d 19, 1987 N.D. LEXIS 307

• Court: North Dakota Supreme Court
• Decided: April 29, 1987
• Docket: Civ. No. 11392
• Status: Published

Opinions

LEVINE, Justice.

In this appeal Lonnie Moody challenges the award of custody of the parties’ minor child to her mother, Marie Schneider, as well as the award of visitation to Lonnie. We affirm the award of custody pursuant to Rule 35.1(a)(2) of the North Dakota Rules of Appellate Procedure. The issue of visitation rights, however, warrants further discussion.

In its order for temporary custody, support and visitation, the trial court awarded Lonnie reasonable visitation rights with minimum visitation specified as not less than the first and third weekends of each month. In its final judgment the trial court awarded “reasonable” visitation rights but reduced the specified minimum visitation to the first weekend of each month, with four weeks’ summer visitation upon the child’s completion of the first grade.

Lonnie argues that the trial court erred by reducing the specified minimum visitation from two to one weekend per month. Lonnie claims that the trial court failed to consider the impact of the child’s move from Williston to Belfield, which substantially increases the travel time necessary for Lonnie to pick up and return the child.

We note that visitation rights were not the focus at the trial. However, the testimony at trial revealed that Lonnie had exercised flexible visitation rights without problem. We believe the trial court took into account the uncertainty created by the child’s move to Belfield and attempted to craft a visitation schedule broad enough to permit the continuation of the flexible visitation previously exercised by Lonnie. It is clear from the judgment that the specified minimum visitation was awarded in addition to reasonable visitation, not as a substitute for reasonable visitation. The judgment provides:

“[I]t is:

“ADJUDGED, DETERMINED AND DECREED that the Defendant shall have the right of visitation upon reasonable times after having giving [sic] advance notice. In addition to reasonable visitation the following are Court specified minimum visits:

a. First weekend of each month. Noon Saturday to 6:00 p.m. Sunday. “First” weekend means the first Saturday of each month.

b. After the child completes the first grade, Lonnie may have a four week summer visit during the month of July_” [Emphasis supplied.]

Should Lonnie wish to exercise visitation more frequently than one weekend per month, he would be entitled to do so. Accordingly, we find that the award of visitation rights is not clearly erroneous.

Marie Schneider asks for costs and attorney’s fees under Rule 38, North Dakota Rules of Appellate Procedure. Because we do not deem the appeal to be frivolous, we deny the request.

The judgment is affirmed.

ERICKSTAD, C.J., and MESCHKE and GIERKE, JJ., concur.