Bashus v. Bashus

Citations: 393 N.W.2d 748; 1986 N.D. LEXIS 414Docket: Civ. 11159

Court: North Dakota Supreme Court; September 30, 1986; North Dakota; State Supreme Court

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Janet L. Bashus appeals a divorce judgment from the District Court of Burleigh County, which awarded custody of her four children to their father, Jeffrey L. Bashus. The couple, married in December 1973, have four children: Jeffrey (born September 1977), Amanda (September 1978), Dustin (August 1980), and Ashley (September 1982). At trial, Jeff was 31 and employed as a lawn technician, while Janet, 30, was attending college for music education. The family relocated multiple times due to Jeff's job opportunities, including a move to Great Falls, Montana in 1983. 

Following marital difficulties and a trial separation in June 1984, Jeff returned to Bismarck with the children, while Janet remained in Montana and later traveled to Texas. In August 1984, Janet obtained an ex parte order in Montana to take the children back, but Jeff was granted temporary custody by a Montana court in September 1984. After a failed trial reconciliation in December 1984, Jeff filed for divorce on July 19, 1985, seeking temporary custody, which was initially granted to Janet before a final trial in December 1985.

On January 8, 1986, the trial court granted the divorce based on irreconcilable differences and awarded custody to Jeff, finding him a fit parent and that it was in the children’s best interest to live with him. The court highlighted that while Janet had focused on her music career, which resulted in prolonged absences, Jeff had successfully created a stable family environment for the children. The court determined that relevant legal standards favored custody to the father, with other factors being neutral.

The court found that the father, Jeff, demonstrated a strong commitment to maintaining the family unit, unlike the mother, Janet, whose commitment was questioned. The father’s extended family was also considered a positive factor in his favor. The trial court acknowledged the difficulty of the custody decision, noting that both parents were fit and capable. Ultimately, the court favored Jeff due to his demonstrated dedication and the support of his extended family. Following the judgment entry on January 16, 1986, Janet filed a notice of appeal and sought a stay of the judgment to retain custody during the appeal process. The district court denied this request, but the appellate court granted a stay later that day. 

The core issue on appeal is whether the district court's custody award to Jeff was clearly erroneous. It is established that custody determinations are treated as findings of fact, which are not overturned unless clearly erroneous. Janet argues the trial court made three errors: mischaracterizing her prolonged absence as near abandonment, misinterpreting her priorities regarding her music career over her children, and incorrectly applying certain statutory subsections to favor Jeff. The appellate court emphasizes that custody decisions must prioritize the best interests of the child, as outlined in Section 14-09-06.2, N.D.C.C. The findings indicated that the trial court's decision was influenced by factors concerning the stability of the child's environment and the performance of the custodial home. The record shows that Jeff maintained consistent contact with the children, while Janet had significant absences during which her contact was limited.

The trial judge characterized Janet's prolonged absence as nearly tantamount to abandonment, a finding supported by the case record. Key factors included Jeff's extended family in Bismarck, who provided care for the children while he worked, reflecting a stable environment. Jeff's mother was consistently involved in the children's lives, facilitating family-oriented activities. The judge referenced the precedent set in *Landsberger v. Landsberger*, affirming that a custodial home with family support can offer a more stable environment, even if the mother has more child care experience. The involvement of grandparents in *Lapp v. Lapp* was highlighted, noting their significant role in providing care and support for their grandchild, which was deemed relevant in custody decisions. The trial court's emphasis on Jeff's extended family was deemed appropriate, especially when assessing the best interests of the children amid two capable parents. Janet, while musically talented and engaged in education and community work, was perceived to prioritize her music career, as noted by the trial judge's observations of her demeanor and testimony. Ultimately, the judge's findings aligned with previous rulings, emphasizing the importance of family support in custody determinations.

The trial judge found that the father would provide a more stable and satisfactory environment for the children in this custody case. Janet attempted to differentiate her situation from the Landsberger decision, but the court did not find any significant distinction. The court emphasized the importance of the trial judge's ability to assess the credibility of witnesses, particularly in custody matters involving two fit parents. Janet argued that she had been the primary caretaker for most of the children's lives and had only briefly deviated from this role during a trip to Texas with her boyfriend. However, the court noted that being a primary caretaker involves more than just the amount of time spent in care. The court upheld the trial judge's findings that the father is a fit parent and that awarding him custody aligns with the children's best interests, citing evidence supporting this conclusion. The judgment was affirmed, with costs awarded to the appellee. The court referenced the relevant factors under Section 14-09-06.2, N.D.C.C., which guides the determination of a child's best interests in custody decisions.