Van Dyke v. Van Dyke

538 N.W.2d 197, 1995 N.D. LEXIS 173, 1995 WL 560109

• Court: North Dakota Supreme Court
• Decided: September 22, 1995
• Docket: Civ. 950027
• Status: Published

Opinions

NEUMANN, Justice.

Lynne Van Dyke appeals from a change of custody order and contempt citation. We affirm in part, reverse in part, and remand for further proceedings.

Lynne and Rick were married in May of 1987. They are the parents of a son, Nicholas, born in August of 1987. They were divorced in January of 1990, and Lynne was awarded sole custody while Rick was granted a liberal visitation schedule. Almost immediately the tension between the parties disrupted the visitations.

This case is an example of what occurs when divorcing parents refuse to cooperate in fostering their child’s relationship with the ex-spouse. The tragedy is that in the end it is Nicholas who bears the scars of his parents’ bitterness.

Cooperation in the wake of Lynne’s and Rick’s divorce has been limited. Lynne has repeatedly interfered with or denied Rick’s visitation. The latest interference, Lynne’s unannounced move to Iowa, forms the immediate basis for the change of custody which eventually was granted. Rick’s motion, while triggered by this latest incident, is also based on and supported by a number of prior events.

Lynne worked at the Kinney’s Shoe Store in Fargo. In August 1994, she was offered a job managing a store in Iowa and was given one day to decide whether to accept. She did accept on August 9, 1994. She moved from Fargo to Iowa on August 17, 1994, and very shortly thereafter moved Nicholas to live with her. Rick discovered Nicholas was no longer living in Fargo on August 23,1994. On August 31, 1994, Rick moved for contempt proceedings and for a change of custody, and on September 15, 1994, he moved for permission to remove Nicholas from Iowa and return him to Fargo under NDCC section 14-09-07 (1991). Rick was unable to exercise his visitation rights while Nicholas was in Iowa.

Prior to this incident, there had been frequent court appearances by the parties. Lynne was held in contempt in 1989 for willfully and wrongfully withholding visitation from Rick. In 1990 there was another contempt motion filed by Rick, again for failure to comply with visitation. The disposition of this motion is unclear from our record. In November of 1991 Rick moved for change of custody, and a hearing was scheduled. Lynne failed to attend the hearing, and was again held in contempt and ordered to pay Rick’s attorney’s fees in the amount of $200. In December of 1991 the trial court found there was insufficient evidence to support a change of custody at that time. Finally, Lynne was held in contempt again following her move to Iowa.¹ That determination is one of the subjects of the current appeal.

In addition to her court orders, Lynne has established a history of antagonism regarding Rick’s visitation with Nicholas. She and Nicholas have disappeared on days when visitation was to occur. She has made it impossible for Rick to contact her in order to arrange visitations. At one point she and Nicholas moved within Fargo, and Rick had to use the courts to force her to reveal her new address so he could pick up Nicholas for visitations. She refused to reveal her daycare provider to Rick so he could meet Nicholas there for visitation.

Even after Lynne returned to North Dakota for the hearing following her move to Iowa, the court had to order her to let Nicholas visit with Rick. At that point Lynne’s move had deprived Rick of his visitation during the time Lynne and Nicholas had been absent from the state. In its change of custody order, the referee found

Defendant testified that she does not wish to interfere with Plaintiff and Nicholas having a “full” relationship, but the court finds it anomalous to the stated end that not only did Defendant leave the jurisdiction with the child and move to Iowa without first obtaining permission or even telling Plaintiff, but that when she was brought back to this jurisdiction to appear in court, she still did not provide an opportunity for Nicholas to be with his father until directed to do so by this court.

The referee made other very specific findings regarding the changes which prompted his decision. The referee found it is Lynne’s desire eventually to manage the Kinney’s Shoe Store in Fargo. Prior to managing a store of that size, her employer requires she manage a small store such as the store in Iowa, followed by a medium sized store in some other location, all before she could return to Fargo.

The referee also found Rick is the one who has taken responsibility to foster his son’s involvement in extracurricular activities. It is Rick who takes Nicholas to doctors for examinations and treatments. It is also Rick who takes Nicholas for haircuts and the like. They spend much recreational time together, and Rick adjusts his work schedule to accommodate his son’s activities.

Lynne, on the other hand, withdrew her son from extracurricular activities because her employment wouldn’t allow her the time. The court apparently concluded her past history, coupled with her increased work schedule and the fact that the move to Iowa removes her son from his support network of extended family and father, resulted in a significant change in circumstances requiring a change in custody. The court also considered that the move was over 600 miles from Fargo.

The trial court, in the instant case, changed the custodial arrangement from one of sole custody remaining with Lynne to a joint custodial arrangement between the parents. Rick will exercise custody during the school year and Lynne’s custody will occur during the summer.

Lynne challenges the court’s findings, arguing no significant change of circumstances has occurred which requires the change of custody.

A trial court’s decision to modify custody is a finding of fact subject to the clearly erroneous standard of review. Barstad v. Barstad, 499 N.W.2d 584, 587 (N.D.1993). For the original placement of a child following a divorce, the trial court need only determine the best interests and welfare of the child. Gould v. Miller, 488 N.W.2d 42, 43 (N.D.1992). Upon a motion to modify that placement, however, the trial court must make a two-step analysis. Id. First, the court must determine whether there has been a significant change in circumstances since the original placement. Id. If there has, then the court must also determine whether that change compels a custodial change in the child’s best interest. Id. The burden of establishing both lies squarely on the movant. Id.

Lynne argues the trial court concluded her move to Iowa was the only significant change in circumstances since the original custodial placement. Lynne’s characterization of the trial court’s findings is inaccurate. While the trial court relied on the move as one change in circumstances, it did not rely solely upon Lynne’s move to support its findings. While it is possible the move alone might support such a finding, see Gould, 488 N.W.2d at 44, the referee’s other findings and the extensive nature of the parties’ record clearly support the finding that there has been a significant change of circumstances since the original custody determination. We conclude the trial court was not clearly erroneous in finding a significant change in circumstances had occurred since its original custody determination.

Lynne also argues the changes since the original custody determination do not compel a custodial change. Again we are guided by NDRCivP 52(a) and the clearly erroneous standard of review in determining this issue. Barstad, 499 N.W.2d at 587. While we might have concluded differently, our review does not allow us to supplant our judgment for that of the trial court.

The trial court made extensive findings. First, it recognized that permanence and continuity weigh heavily in favor of Lynne. However, the trial court found Rick participated in many of the caretaMng duties with Nicholas, and was dedicated to his relationship with his son. In addition, Nicholas has done very well in the community and he is doing quite well in school. Both his maternal and paternal grandparents are in the area. The court also found the relationship between Nicholas and Rick’s son from a previous marriage was very close, and that Nicholas would benefit from their interaction. Rick has been the only one to encourage and enroll Nicholas in extracurricular activities, and has sacrificed the time required to ensure Nicholas’ participation.

On the other hand, the court specifically found Lynne did not take the initiative for enrolling Nicholas in activities, taking him to the doctor, haircuts, and the like. This pattern would likely be exacerbated by her increased work schedule, and further complicated by the removal of Nicholas from his extended family and from his father, who have taken up the slack in the past.

The court also considered Lynne’s persistent frustration of Rick’s visitation as a factor. While we agree parental frustration of visitation should not be the sole factor for a change in custody, it nevertheless may be considered. Gravning v. Gravning, 389 N.W.2d 621, 623 (N.D.1986). It has been urged, and we agree, that prior to resorting to a change in custody other methods should be tried to remedy a parent’s misbehavior. See Gravning, 389 N.W.2d at 626 (J. Levine dissent) (suggesting the normal means of enforcing visitation is by contempt proceedings or modification proceedings). In the instant case this was repeatedly tried. When frustration of visitation becomes this problematic, it is proper to consider it as a factor to help determine whether a change in custody is required.

The trial court’s findings are supported by the record. We cannot say the finding that a significant change of circumstances required the custodial modification is clearly erroneous.²

Lynne also argues she was willing to return to Fargo if permission for her move was denied, and therefore her move should not have been considered. Lynne’s offer to move back is of limited legal significance. At the time of the proceeding there was no question she had moved. That move was one of the facts before thé judicial referee, and one of the facts upon which his findings appropriately were based. Lynne’s mere offer to return, while of some relevance, was hardly evidence sufficiently compelling to eliminate the fact of her move. The trial court did not err in choosing not to give Lynne’s offer to return the compelling weight she now claims it merits.

Lynne’s final point on appeal consists of two parts. First she argues the trial court could not have found her in contempt because no order to show cause or warrant of attachment was issued. She claims this failure breached the requirements of NDCC section 27-10-07 (Supp.1993). The second portion of her argument relates to the referee’s ordering her to pay Rick’s attorney’s fees in the amount of $750 to purge herself of the contempt citation. She argues no evidence was ever presented to show $750 was reasonable and appropriate.

A close reading of NDCC section 27-10-07 reveals Lynne’s procedural argument must fail. Section 27-10-07 provides:

Order to show cause or warrant of attachment for contempt not committed in presence of judge. In addition to the procedure set out in section 27-10-01.3, when an act punishable as contempt is not committed in the immediate view and presence of the court, the court, upon being satisfied of the commission of the offense, may:

1. Order the accused to show cause at a specified time and place why the accused should not be punished for the alleged offense; or

2. Issue a warrant of attachment directed to the sheriff of any county where the accused may be found commanding the sheriff to arrest and bring the accused before the court at a specified time and place to answer for the alleged offense.

NDCC § 27-10-07 (emphasis added). Section 27-10-07 is not mandatory, it is permissive. It suggests two separate vehicles by which judges may bring alleged contemnors before them and provide for a hearing on the contempt. When this section is compared to its predecessor it is clear the statute has changed. Its predecessor was directive rather than permissive in nature. It read:

Order to show cause or warrant of attachment for contempt not committed in presence of judge. When an act punishable as a criminal or civil contempt by a court of record of this state is not committed in the immediate view and presence of the court, the court, upon being satisfied by affidavit of the commission of the offense, shall:

1. Make an order requiring the accused to show cause at a time and place therein specified why he should not be punished for the alleged offense; or

2. Issue a warrant of attachment directed to the sheriff of any county where the accused may be found commanding him to arrest the accused and bring him before the court forthwith or at a time and place therein specified to answer for the alleged offense.

NDCC § 27-10-07 (1991) (amended 1993) (emphasis added). Lynne’s argument that the contempt citation is invalid because neither an order to show cause nor a writ of attachment was issued fails. Since Lynne received notice and a hearing on the contempt we assign no error.

We are disturbed, however, by the trial court’s finding Lynne in contempt “for her willful violation of § 14-09-07 N.D.C.C.” In its usual sense, contempt comprehends a despising of the authority, justice, or dignity of a court. 17 C.J.S. Contempt § 1 (1963). It is not normally invoked to punish past violations of a statute. In North Dakota contempt of court is defined as:

a. Intentional misconduct in the presence of the court which interferes with the court proceeding or with the administration of justice, or which impairs the respect due the court;

b. Intentional nonpayment of a sum of money ordered by the court to be paid in a case where by law execution cannot be awarded for the collection of the sum;

c. Intentional disobedience, resistance, or obstruction of the authority, process, or order of a court or other officer including a referee or magistrate;

d. Intentional refusal of a witness to appear for examination, to be sworn or to affirm, or to testify after being ordered to do so by the court;

e. Intentional refusal to produce a record, document, or other object after being ordered to do so by the court; or

f. Any other act or omission specified in the court rules or by law as a ground for contempt of court.

NDCC § 27-10-01.1(1) (Supp.1993). This statutory definition does not contemplate use of contempt as a remedy for past statutory violations. Although contempt powers are inherent to courts, the legislature may limit, and in North Dakota has limited, the categories to which contempt orders may apply. Blaesing v. Syvertson, 532 N.W.2d 670, 671 (N.D.1995). For this reason we hold the contempt order against Lynne was issued in error.

The trial court ordered “[t]hat the Defendant shall pay attorney’s fees to Plaintiff in the amount of $750.00 within 30 days to purge herself of Contempt of Court.” Apparently the trial court sought to award attorney’s fees in whole or in part to Rick. It is within the trial court’s authority to award attorney’s fees in litigation concerning marital obligations between former spouses. Pozarnsky v. Pozarnsky, 494 N.W.2d 148, 151 (N.D.1992). However, such an award requires specific findings. Id. The awarding of attorney’s fees must be supported by evidence setting forth information regarding the parties’ financial conditions and needs. Id. The principal standards to be considered are one parent’s need and the other’s ability to pay. Id. No such evidence is present in this record. We therefore remand the question of attorney’s fees for reconsideration.

We also note that footnote one of appellee’s brief fails to conform with NDRAppP 28(a)(4) and (5). In that footnote Rick’s attorney chronicles allegations regarding Lynne’s behavior without appropriate references to the record. Id. We have reviewed the record and conclude it cannot support these allegations. Inappropriate attempts to supplement the evidentiary record at the appellate level cannot be condoned. Therefore, consistent with Rule 13, NDRAppP, we deny Rick costs on this appeal as a sanction for his actions. See Varda, Inc. v. Insurance Co. Of North America, 45 F.3d 634 (2d Cir.1995).

Affirmed in part, reversed in part, and remanded.

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

1 . In addition to these contempt citations, Lynne was also held in contempt in April of 1992 for her willful refusal to appear before the court when ordered, as well as her refusal to pay attorney's fees ordered by the court. While this has little to do with her frustration of Rick’s visitation, it further demonstrates her defiance of the court's orders.

2 . The dissent suggests visitation violations cited by Rick in support of his July 2, 1990, motion for change of custody were "rejected” by the referee, and somehow no longer can be counted as part of a pattern of such violations, simply because the referee did not grant the 1990 motion. In fact the referee did not find such violations had not occurred, but only that Rick had not proved a material change, and had not proved the child’s best interests would be served by a change of custody. Rather than making any findings as to the specific allegations, the referee placed emphasis on the parties' lack of cooperation, and required the guardian ad litem to report any visitation violations that might come to light in the following twelve months. It appears the referee did exactly as we have suggested, that is, used methods other than change of custody to try to resolve a custody dispute.

The dissent’s argument that old allegations cannot be relied upon as part of the basis for finding a pattern of violations is particularly troubling in light of our stated preference for using methods short of change of custody in such cases. If an uncooperative custodial parent's record were to be wiped clean after every motion dealing with visitation violations, proving a pattern of such violations sufficient to justify a change of custody would become nearly impossible.