[Go to Documents] | Filed Feb. 26, 1991 |
Margaret Hennenfent, Plaintiff and Appellee
v.
Gregory Q. Hennenfent, Defendant and Appellant
Civil No. 900135
Appeal from the District Court of Burleigh County, South Central Judicial District, the Honorable Gerald G. Glaser, Judge.
AFFIRMED.
Opinion of the Court by Gierke, Justice.
Nodland, Tharaldson & Dickson, 109 North 4th, Suite 300, P.O. Box 640, Bismarck, ND 58502-0640, for plaintiff and appellee; argued by Ardell Tharaldson.
Moench Law Firm, 109 North 4th, Suite 100, P.O. Box 1815, Bismarck, ND 58502-1815, for defendant and appellant; argued by Keith A. Wolberg.
Hennenfent v. Hennenfent
Gierke, Justice.
Gregory Q. Hennenfent appeals from an amended judgment which grants sole custody of the parties' children to Margaret Hennenfent and modifies the visitation provisions. We affirm.
Gregory asserts that he should be awarded custody of the children because of the stress placed on them by Margaret. He argues that the district court's finding of fact that the cause of the children's stress is the divorce itself and the conduct of the parents is clearly erroneous and further argues that the district court erred in admitting a psychologist's letter through the deposition of the children's pediatrician. Finally, Gregory argues that the district court erred in modifying the visitation provisions of the original judgment.
While the psychologist's letter referred to above would ordinarily require an independent basis for admission, our review of the pediatrician's testimony reveals an adequate basis for the trial court's decision. Under Rule 703, NDREv, the children's pediatrician could base his opinion on a letter he received from the psychologist to whom he referred the children. See the Notes of Advisory Committee to FedREv Rule 703, from which our Rule 703 was derived. The standard of review for the change of custody and for modifying visitation is the clearly erroneous rule under Rule 52(a) NDRCivP. There is substantial support in the record for the district court's awarding of custody to Margaret because the parties couldn't agree on issues affecting the children. There is also substantial support in the record for modifying Gregory's visitation for the benefit of the children because the parties, who reside in different cities, have not been able to agree on numerous matters causing, in the children, stress and an inability to adapt to the visitation schedule. Therefore, we are not convinced that a mistake has been made. We affirm under Rule 35.1(a)(2)(4).
Gerald W. VandeWalle
H. F. Gierke, III, acting C. J.
Beryl J. Levine
Gerald W. VandeWalle
W. Neumann, Dist. Judge
Neumann, D.J., sitting in place of ERICKSTAD, C.J., disqualified.