The plaintiff, Mildred Joann Ferguson [hereinafter Mildred], and the defendant, Arnold Roger Ferguson [hereinafter Arnold], were married in Adams, North Dakota, on December 8, 1956. There were three children born as the issue of their marriage, namely: Joleen, born in 1957; Jeffrey, born in 1959; and Jacalyn, born in 1962.
Mildred commenced an action for divorce in January 1970 which the district court dismissed. On July 14, 1970, a decree of separate maintenance was issued by the district court. A second action for divorce was commenced by Mildred on January 7, 1971, wherein she alleged extreme cruelty and grievous mental and physical suffering. The complaint in that action was later amended to allege, in addition, irreconcilable differences of the parties. Arnold filed a cross-complaint, alleging adultery on the part of Mildred. The action was tried to the court, commencing on August 24, 1971, and judgment was entered on September 8, 1971. The court awarded Mildred a divorce on the ground of irreconcilable differences and awarded Arnold a divorce on the ground of adultery. The district court also found that Arnold was entitled to the custody of Jeffrey and Jacalyn, the two youngest children of the parties, and that Mildred was entitled to the care of the oldest child, Joleen. The court further found that the defendant, Arnold, was entitled to possession of the homestead owned by the parties and to the personal property therein, except for such items as may ordinarily be associated with the child, Joleen, and such other furniture and fixtures which could reasonably be released without disrupting or totally incapacitating the household.
The plaintiff, Mildred, has appealed from that part of the divorce judgment awarding a divorce to Arnold on the ground of adultery, providing for the custody
The first specification of error charges that the finding of the district court that she had committed adultery is not supported by the evidence. The second specification charges that the finding of the district court that the best interests of the children, Jeffrey and Jacalyn, would be served by awarding their custody to their father, Arnold, is not supported by the evidence. The third specification charges that the finding of the district court that Arnold is entitled to possession of the homestead and part of the personal property contained therein is not supported by the evidence.
The scope of review of the findings of a district court on an appeal to this court from a case tried without a jury is limited by Rule 52(a) of the North Dakota Rules of Civil Procedure, which provides, in pertinent part:
In applying this Rule to appeals, the initial determination which must be made is whether the particular findings complained of are findings of fact and are subject to the "clearly erroneous" Rule of 52(a), N.D.R.Civ.P., or whether they are conclusions of law and are fully reviewable by this court on appeal. Schatz v. Jerke, 199 N.W.2d 908 (N.D.1972); 5a Moore's Federal Practice (2d ed.) ¶ 52.05 , p. 2693. In making this determination, the labels placed upon the findings by the district court are not conclusive. Houck v. Hinds, 215 F.2d 673 (10th Cir. 1954); State Farm Mutual Automobile Insurance Company v. Brooks, 136 F.2d 807 (8th Cir. 1943), cert. den. 320 U.S. 768, 64 S.Ct. 80, 88 L.Ed. 459.
A review of the decisions of other courts which have applied the "clearly erroneous" rule to divorce actions indicates that findings that a party to a divorce action has committed adultery, that the best interests of the children of the parties to a divorce action would be served by awarding custody of the children to one party as opposed to the other, and that a particular division of property between the parties to a divorce action is equitable, have all been appropriately dealt with on appeal as findings of fact. Spencer v. Spencer, 258 Md. 281, 265 A.2d 755 (1970); Franklin v. Franklin, 257 Md. 678, 264 A.2d 829 (1970); Meredith v. Meredith, 91 Idaho 898, 434 P.2d 116 (Idaho 1967); Ingram v. Ingram, 385 S.W.2d 69 (Ky.1964). We adopt this reasoning. Consequently, our review of the judgment from which Mildred has appealed is limited to a determination of whether or not the findings of fact of the district court are "clearly erroneous" within the purview of Rule 52(a), N.D.R.Civ.P. Schatz v. Jerke, supra; Strandness v. Montgomery Ward, 199 N.W.2d 690 (N. D.1972).
At the outset, we shall review the finding of the district court that Mildred had committed adultery, as was alleged in the cross-complaint. However, in reviewing the finding of adultery we believe that no useful purpose would be served by commenting upon all of the evidence which the defendant, Arnold, introduced in support of his cross-complaint.
While no direct evidence of adulterous conduct was introduced, the law is
Finally, the record contains evidence that Mildred admitted committing adultery. Thus, on the basis of the record before this court we conclude that the finding of the district court that the plaintiff, Mildred, had committed adultery, was not "clearly erroneous". Rule 52(a), N.D.R. Civ.P.
Section 14-05-22, N.D.C.C., grants to a district court the power in a divorce action to award as it may deem proper the custody of the children of a marriage. However, the exercise of this power is limited by § 30-10-06, N.D.C.C., which provides:
The decisions of this court which have construed § 30-10-06, N.D.C.C., indicate that the paramount criterion to be considered by a district court in awarding custody of children is the best interests of the children. Ficek v. Ficek, 186 N.W.2d 437 (N.D.1971); Noakes v. Noakes, 185 N.W.2d 486 (N.D.1971); Kucera v. Kucera, 117 N.W.2d 810 (N.D.1962); Rufer v. Rufer, 67 N.D. 67, 269 N.W. 741 (1936); Horner v. Horner, 66 N.D. 619, 268 N.W. 428 (1936); King v. King, 61 N.D. 422, 237 N.W. 854 (1931). In addition, to assist a court in making a particular award of custody, § 30-10-06, N.D.C. C., sets out more specific criteria. One such criterion is the child's preference as to custody, if the child is of sufficient age to form an intelligent preference. Guldeman v. Heller, 151 N.W.2d 436 (N.D. 1967). However, this preference is not controlling. Guldeman v. Heller, supra. Another criterion which assists a court in making its award of the custody of the children of the parties in a divorce proceeding is the statutory preference for an award of custody of a child of tender years to the mother if other things are equal. § 30-10-06, N.D.C.C. This statutory preference has been discussed by this court in Gress v. Gress, 148 N.W.2d 166 (N.D.1967), at page 179, wherein we stated, quoting from 27B C.J.S. Divorce § 309(4), at pages 461-463 (1959):
Therefore, the statutory preference set forth in § 30-10-06, N.D.C.C., is dependent upon a finding that an award of custody to either the mother or the father of a child of tender years would be in the best interests of the child.
In the instant case, in determining whether the district court's finding with respect to custody was "clearly erroneous", we must be cognizant of the statutory criteria previously discussed, which are intended to assist the court in determining whether a particular award of custody would be in the best interests of the child.
A perusal of the record shows that since shortly after the youngest child, Jacalyn, was born, Mildred has for the most part engaged in work and other activities which caused her to be absent from the family home from approximately 4:00 p. m. to midnight or later on most evenings of the week. The record further reveals that Arnold, prior to the issuance of the separate maintenance decree, had borne most of the household responsibilities, such as the cooking, cleaning, and laundry, in addition to seeing that the children attended Sunday school and received their breakfasts on Sunday mornings. It is also apparent that since the issuance of the decree of separate maintenance in early 1970 the three children usually have been left without adult supervision from 4:00 p. m. to midnight or later. The record further reveals that Arnold, since the issuance of the separate maintenance decree, has succeeded in establishing a good relationship with his children under the circumstances. Therefore, even though the preference of the children at the time of the trial of the divorce action was that they live with their mother—on the basis of the previously discussed evidence and the rule that the stated preference of the children as to custody is only one of several factors to be considered in determining whether a particular award of custody would be in their best interests—we conclude that the finding of the district court that the best interests of Jeffrey and Jacalyn would be served by an award of their custody to their father was not "clearly erroneous". Rule 52(a), N.D. R.Civ.P. Since the evidence indicates that all things were not equal, as is required by § 30-10-06, N.D.C.C., our conclusion is not altered by the statutory preference for an award of custody to the mother of a child of tender years, as is Jacalyn.
Consequently, we are unable to find, on the basis of the record before us, that the district court's findings with respect to the custody of the two youngest children were "clearly erroneous" within the purview of Rule 52(a), N.D.R.Civ.P. However, it should be noted that, if at any time after the making of the record in this case the circumstances change so as to indicate that the best interests of the two youngest children would no longer be served by the award of custody to their father, the trial court may modify the award so that their best interests would be served. § 14-05-22, N.D.C.C.; Ficek v. Ficek, supra; Noakes v. Noakes, supra; Gress v. Gress, supra.
Section 14-05-24, N.D.C.C., grants to a district court the power in a divorce action to make such an equitable distribution of the real and personal property of the parties as may seem just and proper. Section 14-05-25, N.D.C.C., provides, in pertinent part, that a district court:
Having determined that the award of the possession of the homestead was not "clearly erroneous", we also conclude that the finding of the district court that
was not "clearly erroneous". Rule 52(a), N.D.R.Civ.P. Our conclusion that the district court's finding with respect to the award of possession of personal property was not "clearly erroneous" is supported by the guidelines for such awards set down by this court in the case of Fischer v. Fischer, supra 139 N.W.2d at 847, in paragraph 7 of the syllabus, which states:
Since the husband, Arnold, was awarded the custody of the two youngest children of the parties and will therefore need the personal property ordinarily associated with the upbringing of these two children in order to ensure their well-being, we conclude that, to the extent that they are applicable to this case, the guidelines of Fischer v. Fischer, supra, were properly applied by the district court when it found that only such property as was essential to the maintenance of the household should be retained by the defendant, Arnold.
The judgment of the district court is affirmed.
STRUTZ, C. J., and ERICKSTAD, TEIGEN and KNUDSON, JJ., concur.