Fahlsing v. Teters , 1996 N.D. LEXIS 198 ( 1996 )

VANDE WALLE, Chief Justice,

concurring specially.

I concur in the result and much of the discussion in the majority opinion.

I am not entirely convinced the trial court did not intend its December 30,1994 order to be “final,” at least as final as an order can be containing a provision “unless otherwise subsequently ordered by this court” and requiring the parties to “give serious consideration” to Shawn’s preferences. Therefore, the lack of words specifically ordering judgment to be entered is not, to me, necessarily decisive. The substance of the court’s ruling rather than the label or form used is controlling in determining the finality of a ruling for purposes of appeal. E.g., Ennis v. Williams County Bd. of Comr's, 493 N.W.2d 675 (N.D.1992). A “judgment” as used in the North Dakota Rules of Civil Procedure “includes a decree and any order from which an appeal lies.” Rule 54(a), NDRCivP. I believe an appeal would lie from the December 30,1994 order if one had been taken. For example, although no document entitled “order for judgment” is issued, an order for judgment may be implicit in a memorandum opinion. Lang v. Bank of Steele, 415 N.W.2d 787 (N.D.1987).

Furthermore, child custody is never “final” in the sense that other judgments might be considered final. See, e.g., Fichter v. Kadrmas, 507 N.W.2d 72 (N.D.1993); Nygord v. Dietz, 332 N.W.2d 708 (N.D.1983). A motion to change custody and a showing of a change in circumstances are, of course, required before a court can consider whether or not a child’s interests are best served by a change in custody. Id.

Insofar as a change of circumstances was required to change custody, the record is replete with evidence of such changes.