Muraskin v. Muraskin

283 N.W.2d 140, 1979 N.D. LEXIS 282
CourtNorth Dakota Supreme Court
DecidedAugust 2, 1979
DocketCiv. 9597
StatusPublished
Cited by18 cases

This text of 283 N.W.2d 140 (Muraskin v. Muraskin) is published on Counsel Stack Legal Research, covering North Dakota Supreme Court primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Muraskin v. Muraskin, 283 N.W.2d 140, 1979 N.D. LEXIS 282 (N.D. 1979).

Opinion

PEDERSON, Justice.

Sharon Muraskin appeals from a third amended judgment modifying custody of the five minor children born of her former marriage to Murray Muraskin. Under the third amended decree, the district court awarded to Sharon the custody of the parties’ two older children, Stephanie, age 17, • and Benjamin, age 14, and, to Murray, the *141 custody of the three younger children, David, age 13, Theodore, age 10, and Samuel, age 8. The judgment is affirmed.

Murray Muraskin and Sharon Muraskin were divorced on October 12,1976. Shortly thereafter, Sharon, who had custody of Benjamin, David, Theodore and Samuel pursuant to the original decree, moved to Sunrise, Florida. Sharon purchased a house within close proximity to schools and obtained a job as an art instructor to supplement child support and alimony payments provided by Murray. Sharon lived with the four boys approximately one year prior to the present proceedings on the motion to amend the judgment. Sharon testified at the hearing that the children had adjusted well to their new home and were quite happy in Florida.

Murray, who was awarded custody of Stephanie, the parties’ oldest child, pursuant to the second amended judgment dated November 22, 1977, remarried and continued his employment as a physics instructor at the University of North Dakota. By the terms of the second amended judgment, Murray was awarded visitation of the four boys in Florida between the period of June 15 and August 15 of each year, during which time he and his family vacationed at his summer cottage in Minnesota. Murray was also granted a ten-day extended visitation period during the Christmas holidays, and occasional weekend visits in Florida to see the children. Both Murray and Sharon testified at the hearing that the four boys and Stephanie appeared to enjoy their 1978 summer vacation at the lake cottage.

In August 1978, while Murray had summer custody of the four boys, he petitioned for an amended judgment in which he sought their custody on a permanent basis. Murray alleged that it was in their best interests to reside with him. In response to Murray’s motion, Sharon countered with a cross-motion, asserting, among other things, that there had been no substantial change in circumstances justifying a change in custody. In her motion, Sharon requested custody of Stephanie, an increase in child support, health insurance expenses for the children, and travel expenses for the children’s visit to Murray in Grand Forks.

After a lengthy hearing in August 1978, the district court made relevant findings of fact on the parties’ motions to amend the judgment, which are summarized as follows:

(1) Each party is fit to have custody of the children.
(2) There was a material change in circumstances subsequent to the second amended judgment entered November 22, 1977.
(3) Both Stephanie and Benjamin would be attending high school and desired to live with their mother.
(4) That Sharon was disrespectful of the prior court judgments and orders of the court concerning visitation on three separate occasions:
(a) By seeking to impose restrictions on Murray’s 1977, ten-day extended Christmas visitation period;
(b) By arranging for Stephanie’s visitation in Florida in April, 1978, under a cloak of secrecy;
(c) By scheduling, without advising or inviting Murray, the date of David’s Bar Mitzvah in Florida during Murray’s summer visitation period, when the Bar Mitzvah could have been arranged at some other time.
The court found that, by these actions, Sharon intended to set roadblocks in the way of Murray’s attempts to exercise visitation, and that, by so doing, Sharon set a bad example for the children.
(5) Because there are five children involved, keeping the family together is not as important as when there are fewer children.
(6) While Sharon had custody, the two older boys were left to'supervise the younger boys for up to two hours while Sharon was at work and, because Sharon is employed full time, it is difficult for her to attend to the needs of the four boys.
(7) It is in the best interests of the three younger boys to live with their father so *142 that someone is there to meet them after school, and their interests are better served by having both a mother and a father figure in the home.
(8) That Margaret Muraskin, Murray’s present wife, can provide a stable and capable mother figure for the three younger boys.
(9) That David Muraskin experienced difficulties adjusting to the move to Florida and that his interests will be served by living with Murray.
Based upon these findings, the court concluded that it would be in the best interests of Stephanie and Benjamin to live with Sharon, and for David, Theodore and Samuel to live with Murray.

Sharon contends that findings relating to custody are clearly erroneous under Rule 52(a), NDRCivP. She specifically argues that the trial court erred in finding that it was in the best interests of the three younger children to reside with Murray.

In divorce cases, the trial court has continuing jurisdiction with reference to the care, custody and education of the minor children. Goff v. Goff, 211 N.W.2d 850, 853 (N.D.1973).

Our court has said, on several occasions, that the determination of custody of minor children by the trial court is subject to the “clearly erroneous” provisions of Rule 52(a), NDRCivP, Hegge v. Hegge, 236 N.W.2d 910, 914 (N.D.1975). See also, Vetter v. Vetter, 267 N.W.2d 790, 792 (N.D.1978). Although, generally, trial courts are not required to prepare findings on motions under Rule 52(a), NDRCivP, there is an exception to motions involving a modification of child custody. The fact-finding process is necessary in this situation to facilitate a proper determination concerning whether there has been a material change in circumstances to justify a change in custody. Keator v. Keator, 276 N.W.2d 135, 138 (N.D.1979).

A particular finding of fact is held to be clearly erroneous when, although there is some evidence to support it, the reviewing court on the entire record is left with a definite and firm conviction that a mistake has been made. Bohnencamp v. Bohnencamp, 253 N.W.2d 439, 443 (N.D.1977). Even though our court may have viewed the facts differently had it been the initial trier of the case, this alone does not entitle us to reverse the lower court. Grant v. Grant, 226 N.W.2d 358, 362 (N.D.1975).

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283 N.W.2d 140, 1979 N.D. LEXIS 282, Counsel Stack Legal Research, https://law.counselstack.com/opinion/muraskin-v-muraskin-nd-1979.