Weber v. Weber

512 N.W.2d 723, 1994 N.D. LEXIS 66, 1994 WL 73446
CourtNorth Dakota Supreme Court
DecidedMarch 11, 1994
DocketCiv. 930088
StatusPublished
Cited by36 cases

This text of 512 N.W.2d 723 (Weber v. Weber) 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
Weber v. Weber, 512 N.W.2d 723, 1994 N.D. LEXIS 66, 1994 WL 73446 (N.D. 1994).

Opinions

NEUMANN, Justice.

Colleen A. Weber appeals from a divorce judgment awarding custody of the parties’ minor child to Richard T. Weber. We affirm.

Colleen and Richard were married on April 19, 1986, and separated in the fall of 1990. A son, Apollo, was born of this marriage on October 11, 1986. Richard initiated divorce proceedings in June of 1991. Ms. Maureen Holman was appointed Guardian [725]*725Ad Litem (GAL) for Apollo by interim order dated January 29, 1992. All issues were tried to the court on September 25, 28, and 29, 1992.

Both parties retained psychologists to conduct psychological evaluations, and to present testimony at trial. At trial, Dr. Neil Clark testified for Colleen, and Dr. Helen Wilson for Richard. Based on his examination of Colleen, Dr. Clark testified that Colleen was normally adjusted and therefore would be a suitable and competent parent. Dr. Clark did not meet with Richard or Apollo.

Based on a meeting with Richard and Apollo, and the administration of several tests, Dr. Wilson testified that Richard would be an appropriate and good custodial parent for Apollo, that Apollo was bonded with both parents, and that Richard would provide a good custodial home for the child. Although Dr. Wilson testified that she had never met Colleen, when asked on direct examination whether she had an opinion as to whether or not small children should be placed with the same sex parent, she responded:

“There’s quite a bit of literature in that area that’s coming out. And in terms of ideal situations actually a single mother and daughter are the best possible relationships in single parent homes. The father is important in cases of both girls and boys. Boys do better in general with their fathers than girls given that all of the things are equal. That is, if both parents are equally capable of parenting, if both parents love the child, the boy is still better off with the father. As a matter of fact this is why I insisted on doing some evaluation because I couldn’t make that statement without knowing whether in this particular case the boy would be better off with the father. I assume the mother is perfectly able to parent the child.”

Dr. Wilson also prepared a 3½ page report that was received into evidence over Colleen’s objection on the grounds that it was hearsay, and that counsel had not had the chance to read the report. A portion of the report states:

“[Richard] is an excellent model for sex appropriate development. ... If the assumption could be made that the mother is equally capable of parenting Apollo, the data obtained in the area of child development become relevant in helping to made [sic] a decision in this ease. This child is more likely to experience normal healthy development if placed in the primary custody of his father.”

On cross-examination, Dr. Wilson was asked if in fact there were some ethical problems with her making a recommendation on custody when she had not met with both parents. Dr. Wilson responded that there was no ethical problem with her method and testimony.1

[726]*726On December 16, 1992, the trial court issued its Findings of Fact, Conclusions of Law, and Order for Judgment, awarding Richard custody of Apollo. The trial court’s findings of fact included the findings that:

“17. Dr. Neil Clark, a licensed psychologist, evaluated and tested the Defendant and testified that the Defendant is a suitable and competent parent. Dr. Clark did not meet or evaluate the Plaintiff or Apollo.
“18. Dr. Helen Wilson, a licensed psychologist, evaluated and tested the Plaintiff and Apollo. Dr. Wilson did not meet or evaluate the Defendant. She found Apollo to be a happy content child who is bonded with both parents. Dr. Wilson testified that the Plaintiff would be an appropriate and good parent for Apollo.”

Additionally, findings were made addressing each of the best interest factors of NDCC § 14-09-06.2. Judgment of divorce was entered on December 23, 1992. Colleen’s notice of appeal was filed on March 17, 1993.

Before the notice of appeal, Colleen’s counsel filed a complaint with the North Dakota Board of Psychologist Examiners (Board) against Dr. Wilson. As a result, the Board entered into a stipulation with Dr. Wilson providing for a letter of reprimand for her testimony at the Weber divorce trial. The letter of reprimand was dated May 3, 1993.2 On July 14, 1993, a majority of this court denied Colleen’s motion for leave to make a motion to the trial court under Rules 59 and 60(b) of the North Dakota Rules of Civil Procedure.

On appeal, Colleen raises three issues:

“A. WHETHER THE COURT’S FINDING THAT THE BEST INTERESTS OF THE CHILD REQUIRED CUSTODY TO BE AWARDED TO PLAINTIFF WAS CLEARLY ERRONEOUS.
“B. WHETHER THE COURT’S CUSTODY DECISION WAS CLEARLY ERRONEOUS AND CONSTITUTED HARMFUL ERROR BY CONSIDERING AND RELYING UPON THE IMPROPER CUSTODY RECOMMENDATION OF DR. WILSON, WHO WAS FORMALLY REPRIMANDED BY THE STATE BOARD OF PSYCHOLOGIST EXAMINERS FOR SAID TESTIMONY.
“C. WHETHER THE TRIAL COURT’S ADMITTING DR. WILSON’S REPORT INTO EVIDENCE OVER DEFENDANT’S OBJECTION AND WITHOUT PROVIDING DEFENDANT AN OPPORTUNITY TO READ THE REPORT BEFORE CROSS EXAMINING DR. WILSON CONSTITUTED PREJUDICIAL ERROR.”

We address each of these issues in order.

A.

Trial court determinations of child custody are findings of fact. N.D.R.Civ.P. Rule 52(a); e.g., Dschaak v. Dschaak, 479 N.W.2d 484 (N.D.1992). Therefore, we will not disturb this trial court’s determination of custody unless we find it to be clearly erroneous. N.D.R.Civ.P. Rule 52(a); e.g., State ex rel. Younger v. Bryant, 465 N.W.2d 155 (N.D.1991). Colleen, as the party asserting error, has the burden of demonstrating that [727]*727the trial court’s child custody determination is erroneous. Bryant, 465 N.W.2d at 158. Determinations are erroneous when upon review of the entire evidence, we are left with a definite and firm conviction that a mistake has been made. E.g., id.

Colleen argues that the trial court’s findings regarding custody of Apollo are clearly erroneous. In addition to the contention that the trial court erroneously relied on the allegedly flawed recommendation of the GAL when determining the best interests of the parties’ child, Colleen contends that the evidence does not support the court’s finding that the best interests of Apollo required custody be awarded to Richard. We disagree.

The GAL’s 31 page report was entered into evidence without objection by either party. Included in the report was a summary of the interviews conducted, and an assessment of each of the factors enumerated in NDCC § 14-09-06.2. Colleen’s argument that the report was “flawed and erroneous” goes to the weight of the evidence and not its admissibility. See Haus v. Haus, 479 N.W.2d 474, 476 (N.D.1992) (appellant attacked weight to be given testimony of witnesses). In bench trials, the credibility of witnesses and the weight to be given their testimony are both exclusively functions of the trial court.

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Cite This Page — Counsel Stack

Bluebook (online)
512 N.W.2d 723, 1994 N.D. LEXIS 66, 1994 WL 73446, Counsel Stack Legal Research, https://law.counselstack.com/opinion/weber-v-weber-nd-1994.