IN THE SUPREME COURT, STATE OF NORTH DAKOTA
|Dawn Michelle Siewert,|
|Alan Dean Siewert,|
|Supreme Court #20080065|
|Supreme Court #20080095|
ALAN SIEWERT'S APPEAL FROM CROSS MOTIONS TO AMEND AN AMENDED JUDGMENT ENTERED JANUARY 15, 2008
DAWN SIEWERT'S APPEAL FROM AN ORDER
DISMISSING MOTION, DATED APRIL 15, 2008
CASE NO. 09-02-DC-3625
COUNTY OF CASS
EAST CENTRAL JUDICIAL DISTRICT
HONORABLE CYNTHIA ROTHE-SEEGER
BRIEF OF APPELLEE, DAWN SIEWERT
|Michael L. Gjesdahl|
|Gjesdahl Law Office|
|Insight Professional Offices|
|1375 21st Avenue N., Suite A|
|Fargo, ND 58102|
|ND ID #04658|
|Attorney for Dawn Siewert|
|TABLE OF CONTENTS..i|
|TABLE OF AUTHORITIES..iii|
|I. STATEMENT OF THE ISSUE [For Dawn's Appeal]...1|
|II. STATEMENT OF THE CASE AND FACTS [Re Dawn's Appeal]..1|
|III. JURISDICTIONAL GROUNDS [Re Dawn's Appeal]...3|
|IV. SUMMARY OF ARGUMENT AND STANDARD OF REVIEW|
|[Re Dawn's Appeal]5|
|V. ARGUMENT [In Support of Dawn's Appeal]6|
|A. The Lesser Rule: Upon the filing of a notice of appeal, the trial|
|court ordinarily has no further jurisdiction in the matter.6|
|B. The Greater Rule: Appeals should not cause time vacuums|
|during which District Courts are disabled from tending to|
|children's best interests, needs, and support8|
|i Our Sisters' Guidance11|
|ii The District Court Deferred to the Wrong Rule12|
|VI. ARGUMENT [Against Alan's Appeal].13|
|A. Standard of Review of Custody and Visitation Decisions.13|
|B. The District Court Did Not Err in Denying Alan's Change|
|of Custody Motion.14|
|i. Material Change of Circumstances?.14|
|ii. "Necessary" to Serve Best Interests of the Children?15|
|C. The District Court Did Not Err in Granting Dawn's|
|Motion to Pare Back Alan's Visitation..17|
|i. The Kids' Pre-Motion Statements.17|
|ii. And So, Dawn's Motion---And Alan's Manipulations---Began...21|
|iii. Pre-Hearing Investigation..24|
|iv. The Hearing...26|
|v. The Good Dr. Timm..29|
|D. It Was Not an Abuse of Discretion to Decline to Appoint|
|a Guardian Ad Litem.32|
|E. The Bottom Line: In Light of This Family's Dysfunction|
|and Hostility, Equal Parenting Time and Shared Decision-|
|making Are Inappropriate..34|
|F. Alan's Appeal is Frivolous. Dawn Should be Awarded|
|Double Costs and Fees...36|
TABLE OF AUTHORITIES:
|Berg vs. Ullman, 1998 ND 74, 576 N.W.2d 218 .. 8|
|Bonde vs. Steine, 8 N.W.2d 457 (N.D. 1943) .... 7|
|Brakke v. Brakke, 525 N.W.2d 687 (N.D. 1994) ... 4|
|Brandt v. Brandt, 523 N.W.2d 264 (N.D.1994) ... 31|
|Clark v. Clark, 2006 ND 182, 721 N.W.2d 6 ... 14|
|Gabriel v. Gabriel, 519 N.W.2d 293 (N.D. 1994) 10|
|Geinert v. Geinert, 2002 ND 135, 649 N.W.2d 237 . 10|
|Hanson v. Hanson, 2005 ND 82, 695 N.W.2d 205 .. 34|
|Harshberger v. Harshberger, 2006 ND 245, 724 N.W.2d 148 .. 6|
|Harwood v. Harwood, 283 N.W.2d 144 (N.D. 1979) .. 3|
|Healy v. Healy, 397 N.W.2d 71 (N.D. 1986) 34|
|Helbling v. Helbling, 541 N.W.2d 443 (N.D. 1995) ..8|
|Helfenstein v. Schutt, 2007 ND 106, 735 N.W.2d 410 .... 17|
|Hilgers v. Hilgers, 2002 ND 173, 653 N.W.2d 79 .. 34|
|In Interest of A. C., 317 N.W.2d 394 (N.D. 1982) . 9|
|In Interest of R. L. D., 253 N.W.2d 870 (N.D. 1977) 9|
|Jarvis v. Jarvis, 1998 ND 163, 584 N.W.2d 84 .... 35|
|Kasprowicz v. Kasprowicz, 1998 ND 68, 575 N.W.2d 921 . 35|
|Kelly v Kelly, 2002 ND 37, 640 N.W.2d 38 . 15|
|Lauer v. Lauer, 2000 ND 82, 609 N.W.2d 450 .... 10|
|Loll v. Loll, 1997 ND 51, 561 N.W.2d 625 .. 31|
|Ludwig v. Burchill, 514 N.W.2d 674 (N.D. 1994) ... 34|
|Marchus v. Marchus, 2006 ND 81, 712 N.W.2d 636 10|
|Mitchell v. Preusse, 358 N.W.2d 511, 514 (N.D. 1984) 36|
|Olson v. Olson, 361 N.W.2d 249 (N.D. 1985) .. 36|
|Olson v. Garbe, 483 N.W.2d 775 (N.D. 1992) ..11|
|Orwick v. Orwick, 152 N.W.2d 95 (N.D. 1967) .. 3, 7|
|Questa Res., Inc. v. Stott, 2003 ND 51, 658 N.W.2d 756 .36|
|Ramstad v. Biewer, 1999 ND 23, 589 N.W.2d 905 ..14|
|Rekkedal v. Feist, 2006 ND 147, 718 N.W.2d 10 4|
|Riemers v. State, 2006 ND 162, 718 N.W.2d 566 . 3|
|Roberson v. Roberson, 2004 ND 203, 688 N.W.2d 380 .. 14|
|Rodenburg v. Fargo Moorhead Young Men's Christian Ass'n,|
|2001 ND 139, 632 N.W.2d 4007 4|
|Runck v. Brakke, 421 N.W.2d 487 (N.D. 1988) 4|
|Sanderson v. Walsh County, 2006 ND 83, 712 N.W.2d 842 . 4|
|Schmidt vs. Schmidt, 325 N.W.2d 230 (N.D. 1982) . 7|
|Selland v. Selland, 519 N.W.2d 21 (N.D. 1994) . 7|
|Smith vs. Grilk, 250 N.W.2d 787 (N.D. 1933) ... 7|
|Sprynczynatyk v. Celley, 486 N.W.2d 230 (N.D. 1992) 13|
|Stanhope v. Phillips-Stanhope, 2008 ND 61, 747 N.W.2d 79 ... 13, 14|
|Sullivan v. Quist, 506 N.W.2d 394 (N.D. 1993) 9|
|Thomas C. Roel Assocs., Inc. v. Henrikson, 303 N.W.2d 543 (N.D. 1981) .. 7|
|Ungar v. North Dakota State University, 2006 ND 185, 721 N.W.2d 16 .. 3|
|United Accounts, Inc. v. Teladvantage Inc., 499 N.W.2d 115 (N.D. 1993) .. 6, 7|
|Verry vs Murphy, 163 N.W.2d 721 (N.D. 1968) 7|
|Winer v. Penny Enterprise Inc., 2004 ND 21, 674 N.W.2d 9 .... 4|
|Young v. Young, 2008 ND 55, 746 N.W.2d 153 . 14, 17|
|Zarrett v. Zarrett, 1998 ND 49, 574 N.W.2d 855 .. 9, 10|
|Zeller v. Zeller, 2002 ND 35, 640 N.W.2d. 53 . 9|
|Zuger v. Zuger, 1997 ND 97, 563 N.W.2d 804 36|
|North Dakota Constitution, Article VI, Section 6 3|
|N.D.C.C §14-07-15 . 8|
|N.D.C.C §14-08.1-01 8|
|N.D.C.C. §14-09-06.1 ..9|
|N.D.C.C. § 14-09-06.4 .. 34|
|N.D.C.C §14-09-08 .. 8|
|N.D.C.C §14-09-08.4(3) 10|
|N.D.C.C §14-09-08.4(4) .. 9|
|N.D.C.C §14-09-08.9 9|
|N.D.C.C §14-09-09.7(3) 9|
|N.D.C.C. §28-27-01 . 3|
|N.D.R.C., Rule 8.7 34|
|N.D.R.App.P., Rule 38 . 36|
|Cochran v. Rambo, 484 P.2d 500 (Okl. 1971) . 11|
|Enyart v. Comfort, 591 P.2d 709 (Okl. 1979) . 11|
|Halle v. Harper, 869 So.2d 439 (Miss.App.2004) 12|
|In re Bengt Val Thulen, 660 N.W.2d 140 (Minn.Ct.App. 2003) .. 7|
|Koffley v. Koffley, 160 Md.App. 633, 866 A.2d. 161 (Md.App., 2005) . 11|
|Masalosalo v. Stonewall Ins. Co., 718 F.2d 955, 37 Fed.R.Serv.2d 1146|
|(C.A.Hawaii, 1983) 6|
|McKyer v. McKyer, 179 N.C.App. 132, 632 S.E.2d 828 (N.C.App.,2006) . 12|
|Mittwede v. Mittwede, 490 S.W.2d 534 (Tenn.App.1969) .. 12|
|State v. Barnes, 249 Minn. 301, 81 N.W.2d 864 (Minn. 1957) . 7|
|Venen v. Sweet, 758 F.2d 117 (3d.Cir. 1985) ... 6|
STATEMENT OF THE ISSUE
[For Dawn's Appeal]
When an appeal of a parenting time decision is commenced, does the District Court lose jurisdiction over a pending child support review?
STATEMENT OF THE CASE AND FACTS
[Re Dawn's Appeal]
On February 12, 2008, Dawn Siewert ("Dawn") served a Motion to Amend Judgment [Dawn's Appendix, 148-151]. Its purpose was to review Alan Siewert's child support obligation. Alan's child support obligation had remained unchanged since entry of the original Judgment nearly four years earlier, on May 12, 2004 [Alan's Appendix, 6-22].
Hearing on Dawn's motion was to take place on March 17, 2008, before a Judicial Referee [Dawn's Appendix, 148]. Before Dawn's motion came on for hearing, however, Alan filed a notice of appeal of a recently entered Amended Judgment [Alan's Appendix, 82]. A custody/visitation proceeding had ended badly, in his view.
When the support motion came on for hearing, the pending appeal prompted this critical exchange:
THE COURT: Counsel, may I begin by inquiring I notice there's an appeal pending. I just want to clarify issues of child support are not part of the appeal process; is that accurate?
MS. ELLISON: That's correct.
THE COURT: And counsel are comfortable proceeding?
MS. ELLISON: Yes.
[Transcript, March 17, 2008, p. 2]
In response to the same question, in the midst of the hearing, Dawn's counsel provided the Court a very short brief [Dawn's Appendix, pp. 188-190; Transcript, March 17, 2008, p. 3]. It provided a cursory review of North Dakota cases that discuss the effect of appeals on matters pending before District Courts.
Upon review of Dawn's brief, Alan's counsel commented, "[w]ell, it would appear this motion should be stayed pending the appeal is what I'm reading from this brief" [Transcript, March 17, 2008, p. 3]. Switching gears, she later stated aloud the issue that lies at the heart of this appeal:
I think the question here is whether or not to continue or actually dismiss for lack of jurisdiction. That I think would affect the start date of child support.
[Transcript, March 17, 2008, p. 7].
Indeed, regardless of whose calculations are correct, considering the length of time it takes to process an appeal, thousands of dollars hang in the balance. Dawn's motion proposed that Alan's presumptively correct guideline support amount would increase his monthly obligation by $987, from $1,259 to $2,246 [Dawn's Appendix, p. 182]. Alan responded that his presumptively correct guideline support amount would increase his monthly obligation by $874, from $1,259 to $2,133 [Dawn's Appendix, p. 186].
Ultimately, to preserve Dawn's entitlement to a support modification effective from the date of her motion to modify, Judicial Referee Thomas found and ordered that:
10. This Court is without jurisdiction to consider the merits of Dawn's motion.
11. The Court finds dismissal is not an appropriate remedy as the jurisdictional defect should be remedied upon conclusion of the pending appeal and because dismissal of Dawn's motion could result in irreparable harm.
12. Thus, this Court shall decline to take further action in this matter while Alan's current appeal pends. It shall not hear Dawn's motion. It shall not decide Dawn's motion. It shall not dismiss Dawn's motion. At the conclusion of Alan's appeal, Dawn shall re-schedule hearing of her support review motion.
[Dawn's Appendix, p. 198].
Alan sought review of the Judicial Referee's Order [Dawn's Appendix, 200].
In response, the District Court, speaking through the Honorable Cynthia Rothe-Seeger, entered the Order from which Dawn now appeals, stating:
The Notice of Appeal to the North Dakota Supreme Court was filed on March 6, 2008. At that point, the District Court has no further subject matter jurisdiction, and any subsequent Order made after appeal is void for lack of jurisdiction. Harwood v. Harwood, 283 N.W.2d. 144, 145 (ND 1979). The exceptions to this general rule (see Orwick v. Orwick, 152 N.W.2d 95 (1967), do not apply to the case at hand. When the Court lacks jurisdiction, dismissal is appropriate. Ungar v. North Dakota State University, 2006 ND 185, 721 N.W.2d 16, Riemers v. State, 2006 ND 162, 718 N.W.2d 566. By denying Alan's motion to dismiss Dawn's motion and continuing the hearing until after the appeal is concluded, the Referee committed error.
[Dawn's Appendix, 204].
[Re Dawn's Appeal]
"Appeals shall be allowed from decisions of lower courts to the Supreme Court as may be provided by law." North Dakota Constitution, Article VI, Section 6. "A judgment or order in a civil actionmay be removed to the Supreme Court by appeal as provided in this chapter." N.D.C.C., §28-27-01.
Generally, a dismissal without prejudice is not appealable because either party may commence another action. Rekkedal v. Feist, 2006 ND 147, 718 N.W.2d 10, ¶ 6. Conversely, where a party may not re-commence an action and gain all or a part of the requested relief, dismissals without prejudice may be final and appealable. Sanderson v. Walsh County, 2006 ND 83, ¶ 6, 712 N.W.2d 842 (emphasis added).
A dismissal without prejudice may be final and appealable if the plaintiff cannot cure the defect that led to the dismissal, or if the dismissal has the practical effect of terminating the litigation in plaintiff's chosen forum. Rodenburg v. Fargo Moorhead Young Men's Christian Ass'n, 2001 ND 139, ¶ 12, 632 N.W.2d 4007. Here, Dawn may not "cure" the "defect" that led to the dismissal of her motion, namely, Alan's appeal. The dismissal of her motion "terminates" her right to substantially increased guideline support back to the date of her motion.
In Winer v. Penny Enterprise Inc., 2004 ND 21, ¶ 6, 674 N.W.2d 9, as here, the District Court dismissed an action for lack of subject matter jurisdiction. Its dismissal was considered to "foreclose litigation" of the action and, accordingly, was considered appealable.
An order of dismissal that determines "some part" of the merits of an action may be appealable. Runck v. Brakke, 421 N.W.2d. 487 (N.D. 1988).
The dismissal of Dawn's motion "forecloses" her from litigating her entitlement to a support modification, and to presumptively correct guideline support, retroactive to the date of her motion. Because, support obligations may not be modified retroactively, beyond the date such motions are commenced, Brakke v. Brakke, 525 N.W.2d 687, 690 (N.D. 1994), the instant dismissal "determines" or decides the motion as it effects the span of time from February 12, 2008 (when her motion began) until Alan's appeal is ultimately decided.
The dismissal of Dawn's motion to review Alan's child support affects her substantial rights. It forecloses her from litigating her right to updated presumptively correct guideline support. It decides her motion, at least for a considerable span of time. It is appealable.
SUMMARY OF ARGUMENT AND STANDARD OF REVIEW
[Re Dawn's Appeal]
1. Child Support is Not Involved in Alan's Appeal: When an appeal begins, a trial court's jurisdiction is suspended only to those matters necessarily involved in an appeal. Child Support is not at issue on Alan's appeal (as was conceded by his attorney in conversation with the Judicial Referee). [Transcript, March 17, 2008, p. 2]. Thus, the general rule, itself, should not have worked to divest the District Court of jurisdiction to bring current Alan's child support obligation.
2. Alan's Appeal is Frivolous: A frivolous appeal does not suspend or terminate a Trial Court's jurisdiction.
3. Untended Kids: The general suspension-of-jurisdiction rule should not create vacuums in time where District Courts are disabled from discharging their obligations to children.
3(A). Child Support Laws Are Jurisdictional and Mandatory: Our statutes regarding "presumptively correct guideline support" and non-waivable "modification jurisdiction" should be construed (i) so that a District Court may not lose jurisdiction on appeal over support review motions and (ii) to make mandatory, not merely suggestive, that support obligations should take effect as of the date support review motions are served.
When, as in this case, jurisdictional facts are not in dispute, the question of subject matter jurisdiction is a question of law and is subject to de novo review. Harshberger v. Harshberger, 2006 ND 245, 724 N.W.2d 148.
[In Support of Dawn's Appeal]
Dawn's appeal stands at an intersection where two rules collide. One rule is possessed of a greater weight and mass of underlying policy. The other must give way.
The Lesser Rule:
Upon the filing of a notice of appeal, the trial court
ordinarily has no further jurisdiction in the matter.
In the words of this Court:
We have held that the jurisdiction of this court attaches upon the filing of a notice of appeal, and the trial court ordinarily has no further jurisdiction in the matter (citations omitted).
United Accounts, Inc. v. Teladvantage Inc., 499 N.W.2d 115 (N.D. 1993).
While the purpose underlying this rule does not seem to have ever been articulated by this Court---perhaps due to self-evidence---other Courts have expressed it:
This judge-made rule has the salutary purpose of preventing the confusion and inefficiency which would of necessity result were two courts to be considering the same issue or issues simultaneously.
Venen v. Sweet, 758 F.2d 117, 121 (3d.Cir. 1985). See also, Masalosalo v. Stonewall Ins. Co., 718 F.2d 955, 956, 37 Fed.R.Serv.2d 1146 (C.A.Hawaii, 1983).
Many states provide a clarifying corollary to this rule:
[T]he jurisdiction of the trial court is suspended only to those matters necessarily involved in the appeal.
State v. Barnes, 249 Minn. 301, 302-303, 81 N.W.2d 864, 866 (Minn. 1957) (emphasis added).
but the trial court may proceed upon any other matter included in the action and not affected by the judgment or order from which the appeal is taken.
In re Bengt Val Thulen, 660 N.W.2d 140, 143 (Minn.Ct.App. 2003) (emphasis added).
The rule and its underlying policy thus perceived, this Court has carved out areas of exceptionbut what, in all likelihood, are circumstances not within the rule's prohibition.
For example, a patently frivolous appeal does not cause a trial court to lose jurisdiction. United Accounts, Inc. v. Teladvantage Inc., 499 N.W.2d 115 (N.D. 1993); Selland v. Selland, 519 N.W.2d 21, 22 (N.D. 1994). Nor does the untimely filing of a notice of appeal. Thomas C. Roel Assocs., Inc. v. Henrikson, 303 N.W.2d 543, 544 (N.D. 1981).
Likewise, our District Courts retain jurisdiction to award attorney's fees and "temporary support" to enable a party to litigate the issues on appeal. Orwick vs. Orwick, 152 N.W.2d. 95 (N.D.1967); Schmidt vs. Schmidt, 325 N.W.2d. 230 (N.D. 1982).
And, of course, even while an appeal pends, the District Court retains jurisdiction to enforce its Orders and Judgments. Verry vs Murphy, 163 N.W.2d. 721 (N.D. 1968); Bonde vs. Steine, 8 N.W.2d. 457 (N.D. 1943); Smith vs. Grilk, 250 N.W.2d. 787 (N.D.
The Greater Rule:
Appeals should not cause time vacuums during which District Courts
are disabled from tending to children's best interests, needs, and support.
The District Court's dismissal of Dawn's support review motion rigidly exalts a generic procedural statement at the expense of both parents' and its own obligation to tend to the best interests, needs, and support of the parties' children.
In various ways, both our legislature and this Court have addressed parents' duties to support their children:
Parents shall give their children support and education suitable to the child's circumstances.
A person legally responsible for the support of a child under the age of eighteen yearsand who fails to provide support, subsistence, education or other necessary care for the children...is liable for the reasonable value of the physical and custodial care or support which has been furnished to the child by any person...
Public policy abhors allowing a parent to avoid the obligation to support a child....
Berg vs. Ullman, 1998 ND 74, 576 N.W.2d. 218.
Our law and the public policy inherent in the guidelines dictate that children should share in the child support obligor's good fortune.
Helbling v. Helbling, 541 N.W.2d. 443, 447 (N.D. 1995).
Every parent...legally responsible for the care or support of a child who...willfully fails to furnish food, shelter, clothing and medical attention reasonably necessary and sufficient to meet the child's needs is guilty of a class C felony.
Of course, states and their courts are also possessed of "parental" duties. Very generally, the term "parens patriae"---literally, "parent of the country"---refers to the state's traditional role as guardian of persons under legal disability. In Interest of A.C., 317 N.W.2d 394, 400 (N.D. 1982).
This responsibility is discharged in many areas of family law. It is evident in a juvenile code, the purpose of which is to protect the welfare of children. In Interest of R. L. D., 253 N.W.2d 870 (N.D. 1977). It is present in statutes and cases that give Courts final say in matters of custody and visitation, even when at odds with the preference of parents. Zeller v. Zeller, 2002 ND 35, ¶15, 16, 17, 640 N.W.2d. 53; N.D.C.C., §14-09-06.1. It is manifest in the State's refusal to permit parents to waive their children's right to receive guideline child support, Sullivan v. Quist, 506 N.W.2d. 394(N.D. 1993), or to limit the power of the court to modify future support. Zarrett v. Zarrett, 1998 ND 49, ¶ 10, 574 N.W.2d 855.
The dismissal of Dawn's support review motion---in deference to "the lesser rule"---conflicts with, if not ignores, two inter-related "parens patriae" enactments that this Court routinely and dearly defends.
First, Section 14-09-09.7(3), N.D.C.C., creates a rebuttable presumption that the child support resulting from application of guidelines established by the Department of Human Services is correct.
Second, the Legislature has provided that District Courts must retain jurisdiction to modify child support obligations to keep them in line with current presumptively correct guideline calculations. See, N.D.C.C. § 14-09-08.4(4), N.D.C.C. §14-09-08.9.
This Court once discussed the importance of the retention of modification jurisdiction, as follows:
A trial court has continuing power to modify an earlier child support order. (citations omitted). Child support orders are given only "limited finality," resulting in an exception to the rule of claim preclusion. (citations omitted). Thus, res judicata ordinarily will not prevent reexamination of a child support order, and, if the motion to modify support comes more than one year after the earlier order, N.D.C.C. § 14-09-08.4(3) "directs the court to modify it to meet the guidelines." (citations omitted).
Zarrett v. Zarrett, 1998 ND 49, ¶ 8, 574 N.W.2d 855 (emphasis added).
Discussing together the notions of "presumptively correct guideline support" and "continuing jurisdiction to modify," this Court has explained:
The purpose of continuing jurisdiction and periodic reviews of child support orders is "to insure support is at all times consistent with current guideline amounts." Lauer v. Lauer, 2000 ND 82, ¶ 4, 609 N.W.2d 450; see also Zarrett, 1998 ND 49, ¶ 8, 574 N.W.2d 855.
Geinert v. Geinert, 2002 ND 135, ¶ 9, 649 N.W.2d 237. (emphasis added).
Together, these two notions have convinced this Court that established support obligations "should be" made retroactive to the date of a motion to modify:
Generally, a modification of child support should be made effective from the date of the motion to modify, absent good reason to set some other date, and the "court retains discretion to set some later effective date, but its reasons for doing so should be apparent or explained." Geinert v. Geinert, 2002 ND 135, ¶ 10, 649 N.W.2d 237.
Marchus v. Marchus, 2006 ND 81, ¶ 8, 712 N.W.2d 636.
This Court deems modifying obligations as of the date of a review motion fair to both interested parties: Each is "on notice circumstances relevant to child support have changed and the terms of the support obligation will change upon a judicial finding that the changed circumstances are material." Gabriel v. Gabriel, 519 N.W.2d 293 (N.D. 1994).
This Court also deems modifying obligations as of the date of the review motion prudent. A different approach might encourage gamesmanship and sharp behavior:
If the order increasing or decreasing the obligations were required to be prospective from the date of its entry, then the party owing the support obligation or the party to whom such obligation is due could by dilatory tactics postpone his obligation to pay increased or decreased support almost indefinitely, regardless of how circumstances might have changed.
Olson v. Garbe, 483 N.W.2d 775, 776 (N.D. 1992).
Such dilatory practices might even include the taking of Hail Mary appeals.
Our Sisters' Guidance
When a family law issue is appealed, does a trial court lose jurisdiction to hear and decide other issues presented in the same case? Other states have confronted this issue and decided it as Dawn suggests. Here are a few quick examples.
Maryland: A wife's appeal from a custody and visitation order did not divest the trial court of jurisdiction to entertain her subsequent emergency motion to transfer custody to her during pendency of the appeal. Koffley v. Koffley, 160 Md.App. 633, 866 A.2d. 161 (Md.App., 2005):
It would seem by analogy that the trial court would have the power, pending an appeal, to modify the support payment provisions of a divorce decree in the event of changed circumstances which arise subsequent to the original decree.
Id., at 644.
Oklahoma: Trial Courts have jurisdiction to consider motions to modify child custody, support, and maintenance at all times, even when an appeal from the last adjudication of such matters is pending. Enyart v. Comfort, 591 P.2d 709 (Okl. 1979); See also, Cochran v. Rambo, 484 P.2d 500 (Okl. 1971) (wife's appeal from a divorce judgment does not divest the trial court of jurisdiction to consider husband's application for temporary custody of children pending appeal).
Tennessee: Appeal from a decree changing custody did not deprive the trial court of jurisdiction to make further appropriate orders regarding the welfare of children, including supervision of custody and support. Mittwede v. Mittwede, 490 S.W.2d 534 (Tenn.App.1969):
According to the weight of authority, the appeal of a dissatisfied parent does not tie the hands of a Trial Judge and prevent his continued concern and protection of a ward of the court pending appeal. (citations omitted). Such an appeal does not transfer to the distant appellate court the continuing supervision of the welfare of the child. Pending appeal, the day to day supervision of child custody and support must be left to the Trial Judges
Id., at 536.
Mississippi: The Court of Appeals of Mississippi concisely explains:
The appellant first contends the trial court was without jurisdiction to determine the matter since there was an appeal pending. With this theory we cannot agree. The court may re-examine the question of custody or support at anytime on showing a change of conditions, regardless of the pendency of an appeal. It may, and sometimes does, require many months to determine a case on appeal.
Halle v. Harper, 869 So.2d 439, 440 (Miss.App.2004).
North Carolina: In a case somewhat like this one, a father's appeal of a modified child custody order did not divest the trial court of jurisdiction to enter child support orders; the child custody order the father appealed did not address child support. McKyer v. McKyer, 179 N.C.App. 132, 632 S.E.2d 828 (N.C.App.,2006).
The District Court Deferred to the Wrong Rule
The issue in this case was nicely framed for the District Court. One choice would end Dawn's motion. That choice would disable Dawn from seeking an increase of nearly $1,000 per month backward to February, 2008, and forward during the life of an unrelated appeal. The right to that support, of course, was and is not Dawn's, but the parties' children's. Sprynczynatyk v. Celley, 486 N.W.2d 230, 232 (N.D. 1992).
That choice deferred to "the lesser rule" and the somewhat condescending policy notion that this Court, the District Court, or both, would be "confused" by the District Court suspending final resolution of Dawn's motion until Alan's appeal is decided. It gave priority to a "judge-made rule" over the law and underlying policies our Legislature has expressed in our child support statutes.
The other choice would have preserved Dawn's---actually, the children's---right to current, guideline support back to February, 2008. That choice would have honored the policy underlying our Legislature's child support enactments, and this Court's many stubborn defenses thereof.
The District Court chose wrongly.
[Against Alan's Appeal]
Standard of Review of Custody and Visitation Decisions
Alan is disappointed that the District Court denied his motion to change custody of the parties' two children and granted Dawn's motion to pare back his visitation. This Court's standard of review of the District Court's decisions poses a daunting obstacle for Alan's appeal.
A district court's decision whether to change custody, or to modify visitation terms, is a finding of fact subject to the clearly erroneous standard of review. Stanhope v. Phillips-Stanhope, 2008 ND 61, ¶ 7, 747 N.W.2d 79. Young v. Young, 2008 ND 55, ¶ 6, 746 N.W.2d 153. A finding of fact is clearly erroneous if there is no evidence to support it, if the finding is induced by an erroneous view of the law, or if the reviewing court is left with a definite and firm conviction a mistake has been made. Clark v. Clark, 2006 ND 182, ¶ 18, 721 N.W.2d 6.
In attempting to scale this sheer-faced standard, Alan throws this Court the rope of re-shaped facts. His brief---really no more than a written closing argument---is an invitation for this Court to do that which it vows it will not do:
When two parties present conflicting testimony on material issues of factwe will not re-determine the trial court's findings based upon that testimony.
Roberson v. Roberson, 2004 ND 203, ¶ 10, 688 N.W.2d 380.
Every rule should have a reason. In case after case, the reason for this particular rule is explained this way:
The district court was in a better position than this court to weigh the evidence. The district court has the advantage of judging the credibility of witnesses by hearing and observing them and of weighing the evidence as it is introduced, rather than from a cold record.
Ramstad v. Biewer, 1999 ND 23, ¶ 22, 589 N.W.2d 905.
The District Court Did Not Err in Denying Alan's Change of Custody Motion
Material Change of Circumstances?
Oddly, Alan devotes approximately two pages of his brief to convincing this Court that a "material change of circumstances" existed in this case, sufficient to surpass the first part of the two-pronged standard to change of custody. This bit of advocacy is unusual in light of the District Court's second conclusion of law:
A significant and material change of circumstances has occurred since the last custody order including Alan's marriage to Kathleen, the increased level of acrimony between Dawn, Alan and Kathleen, and the impact on R.S. and C.S.
[Alan's Appendix, p. 60](emphasis added).
"Necessary" to Serve Best Interests of the Children?
It is the second part of the standard that sank Alan's case. If a court decides there has been a material change of circumstances, it must then decide whether a change in custody is "necessary" to serve the best interests of the child. This court equates the adjective "necessary" with the verbs "require" and "compel." Kelly v Kelly, 2002 ND 37, ¶ 16, 640 N.W.2d 38.
In both his testimony [Transcript, Volume I, pp 53-57] and his brief to this Court [¶¶ 52-55], Alan proclaims that his children love him and his extended family, his wife and her extended family, and Dawn and her extended family. He describes the children as happy, healthy, focused, energetic, polite, respectful, neat, clean, athletic, thriving and well-adjusted. Upon this descriptive foundation, Alan could not---cannot---build a factual framework from which a Court could rightly conclude it was necessary, required, or compelled to change custody.
Instead, Alan bases the instant appeal upon understated, overstated, distorted, and disputed "facts":
1. "Dawn called Kathleen a "bitch" at a baseball game" [Alan's Brief, ¶ 19]. Dawn unqualifiedly disputed that "fact," saying "no," she "never did that," during her cross-examination [Transcript, Volume I, p. 20, lines 8-14]
2. "Dawn began a barrage of criminal complaints aimed at Kathleen" [Alan's brief, ¶ 70]. In truth, Dawn testified repeatedly and clearly that her contact with the Police Department was not for the purpose of initiating a criminal complaint [Transcript, Volume I, p. 19, lines 4-18]. "My only intention is and was to make Kathleen stop contacting me, stop harassing me, stop calling my home and leaving nasty messages on my home answering machine" [Transcript, Volume I, p. 42, lines 4-7].
3. "Dawn took both children to a licensed psychologist and secreted this from Alan" [Alan's Brief, ¶ 70]. Dawn disputed this assertion [Transcript, Volume I, p. 28, lines 14-17].
4. "Dawn influenced the children's statements and perceptions" [Alan's Brief, ¶ 71]. In fact, Dawn denied influencing the children, debriefing and mining them for information, or taking them to counselors for any purpose other than to help them deal with feelings they'd volunteered to her [Transcript, Volume I, pp. 21-25].
5. "Dawn failed to cooperate with Alan to make major decisions for the children" [Alan's Brief, ¶ 72]; While Dawn, too, identified parental disharmony and discord [Dawn's Appendix, p. 7, ¶ 22], it was Alan's opinion, not fact, that Dawn owned 100% of the fault for it. [Transcript, Volume I, p. 86, lines 6-9].
6. "She did not inform Alan of the children's many appointments and activities" [Alan's Brief, ¶ 72]. Dawn vigorously disputed this contention [Transcript, Volume I, p. 28, lines 14-17; p. 33, lines 9-13; Dawn's Appendix, p 96, ¶29].
7. "Dawn was inflexible when Alan requested minor visitation changes and refused to follow the Judgment for holiday and summer visitation" [Alan's Brief, ¶ 72]. Dawn disagreed, testifying in an affidavit, "I have only denied Alan's requests to switch visitation when I have made prior plans with the children that would conflict [Dawn's Appendix, p. 95, ¶ 19].
8. Dawn primarily instigated conflict [Alan's Brief, ¶ 92.] Dawn disputed this opinion [Dawn's Appendix, pp. 6-7, 93-95].
9. Laurie Christianson "implicated" Dawn's behavior [Alan's Brief, ¶ 97] and "agreed..that Kathleen was not the primary instigator" [Alan's Brief, ¶ 41]. This characterization is flat false. To support it, Alan's brief cites a segment of Ms. Christianson's testimony where she was instructed to accept that premise as part of a hypothetical question [Alan's Brief, ¶ 41]. In truth, Ms. Christianson never "implicated" Dawn as a "primary instigator" of parental hostilities. Nor did she free Kathleen of that label.
The District Court Did Not Err in Granting
Dawn's Motion to Pare Back Alan's Visitation
In order to modify visitation, the moving party must establish (1) a material change of circumstances since the prior visitation order and (2) that it is in the children's best interests to modify the order. Young v. Young, 2008 ND 55, ¶ 13, 746 N.W.2d 153. However, the type of material change(s) needed to amend visitation terms are "distinct from" the type of material changes needed to change physical custody. Helfenstein v. Schutt, 2007 ND 106, ¶ 17, 735 N.W.2d 410.
Such changes were present in this case in abundance. While not excluding other areas of focus, Dawn grounded her visitation motion on these central premises:
1. Alan's new wife, Kathleen, is hostile to Dawn and verbalizes that hostility to the Siewert children.
2. Alan refuses to believe that Kathleen verbalizes such hostility to the children.
3. Kathleen's hostility and Alan's refusal to believe it occurs, and to stop it, cause the children great suffering.
4. The parties' general parenting relationship is dysfunctional and rife with conflict.
5. A 50/50 parenting-time schedule, and joint decision-making, is not in children's best interests when the parenting relationship is dysfunctional and conflicted.
The Kids' Pre-Motion Statements
The record supported Dawn's premises. Dawn's affidavits and the children's attached counseling records informed the Court as follows:
In 2004, C.S.'s music teacher overheard her talking about her step-mother, Kathleen, who "says mean things about my mom and it hurts my feelings" [Dawn's Appendix, p. 8]. The music teacher was concerned enough to send C.S. to the school counselor, Ms. Clarys, who, in turn, was concerned enough to refer C.S. to a psychologist [Dawn's Apppendix, p. 8 and 47]. C.S. was six years old at the time [Dawn's Appendix, p. 8].
C.S. underwent a course of counseling with Knowlton, O'Neill & Associates, where she was diagnosed with "Adjustment Disorder with mixed anxiety and depression" [Dawn's Appendix, p. 8 and 52]. Early progress notes say that, according to C.S.:
"Kathleen swears and swears about my momshe uses bad words, like the "A" word. And she says the "A" word and the "B" word about my mom. As a result, the pt. feels angry ("mad") and she states she has told her father, "and he didn't listen" resulted in her feeling abandoned by father."
[Dawn's Appendix, p. 55].
On various occasions, C.S. drew pictures of Kathleen, portraying her saying mean things about Dawn. In November of 2004, at a counselor's request, C.S. drew a picture portraying Kathleen calling Dawn "dum" and "stooped," with the caption, "I feel sad when Kathlen says men wrds abot my mom. I wot Kathlen to stop saying men wrds." [Dawn's Appendix p. 8 and 27].
R.S. also suffers the effects of Kathleen's words and behaviors, and Alan's unwillingness to confront and control her. On July 25, 2005, R.S. visited Clinical Psychologist, Meryl Willert, who reported:
Patient is extremely sensitive and suppressive, has somatic complaints, esp. stomach aches at bedtime, then doesn't want to be alone + wants mom near him; has sx of anxiety w/ very low insight + depressive reactions when things don't go as desired.
[Dawn's Appendix, p. 8 and 33].
Dr. Willert reported "pt. discloses about stepmom's mean voice messages left for mom + stepmom's (-) comments about her X-husband." [Dawn's Appendix, p. 35]. He diagnosed R.S. as suffering "anxiety disorder NOS (w/ depressive features) and noted contributing environmental forces, including "post-divorce parental tension, back + forth, split living arrangement; parenting style differences." [Dawn's Appendix., p. 33]
In his notes of his September 2, 2005 session with R.S., Dr. Willert observes:
ID'd severe post-divorce tension/resentment/conflict between bio-mom vs. bio-dad + step-mom + its (-) effects on pt as he can not reconcile opposing views; offered impression that tension/conflicts seem irreconcilable + 0 contact/communication between bio-mom vs. bio-dad/step-mom may be only strategy that will reduce pt's stress level.
[Dawn's Appendix, p. 38](emphasis added).
Dr. Carita Shawchuck, a Fargo Child Psychologist, saw C.S., on September 7, 2006. Her notes of that visit provide:
Ms. Siewert reports that sometime this past summer C.S. told her that step-mother told C.S. that "mom was doing bad things and would maybe be going to jail.".C.S. corroborates her mother's report, stating that "Kathleen says mom lies a lot" and she often asks C.S. how she feels that her mom lies a lot."
According to C.S., she is sad half the time, and happy half the time. She is sad when she is at her father's home, and happy when she is at her mother'sshe indicates that she perceives her dad and step-mom do not know she is sad because "I am good at acting."she indicates, when queried, that her dad does not know she is sad because she believes he will get angry and "I'll get in trouble."
It is hypothesized that C.S. continues to have great difficulty adjusting to visitation with father and step-mother resulting in feelings of sadness and dysphoric mood due to a number of ongoing problems includingC.S. feeling isolated from mother when at father's housenegative comments and statements of going to court apparently made by step-mother about mother resulting in feelings of anxiety and fears of loss of contact with mother, and feelings that father and step-mother do not care about her feelings
[Dawn's Appendix, pp. 13-14](emphasis added).
In her notes of an October 18, 2006 session with C.S., Dr. Shawchuck records C.S.'s statements that Kathleen and Alan talk to the kids about custody litigation, causing them fearful anxiety, and that Kathleen continually denigrates Dawn with coarse words and names:
According to C.S., "Kathleen always tells Dad to bring Mom to court and stuff, and talks to dad about me, and mom, and R.S.." She relays that recently when staying at her father's house, Kathleen told her that they (father and step-mom) offered mom something and they'd take her to court so that me and R.S. will stay with them.Assessment indicates that as a result, however, she felt very sad and worried, and coped by going to her room and turning the music up loud so she wouldn't have to hear any conversation between father and step-mother.
Apparently, C.S. wants to take the [gymnastics] class on Tuesday eveningsAccording to C.S., her father and Kathleen were discussing the issue. During the discussion "Kathleen says mommy is the B word," which C.S. found very distressing. Then when father was discussing the issue with C.S., she indicates that Kathleen kept saying bad things about mommy.
ASSESSMENT: Assessment suggests that C.S. experiences strong feelings of sadness and anxiety when she perceives that father and/or step-mother are angry with her mother; and she perceives a threat that father and step-mother are planning to attempt to gain sole custody of herself and her brother.
[Dawn's Appendix, pp. 18-19].
As a result of that meeting, on November 8, 2006, Dr. Shawchuck thought it would be helpful to meet with R.S. to assess whether or not his perceptions affirmed or refuted C.S.'s:
Interviewed brother jointly w. C.S. for 20 minutes about his perceptions of pt's coping during visits to fathers, how he copes + his perceptions how pt. feels when there. He states pt spends most time in her room watching TV. He copes by trying to ignore comments by step mother, playing w. step-brothers + friends, asking as much as possible to have friends over + have them stay as late as possible + asking to go places w. friends as much as possible. He appears as if he will cry, tears well up eyes + voice shakes as he describes that s-m "gets mad and asks every time his mother calls to talk to him, why she called + what did she want."
[Dawn's Appendix, pp 21-22].
On January 10, 2007, Dr. Shawchuck met with R.S. and C.S. again. Her notes indicate that, during this session, she tried to provide the kids coping skills to mitigate the harmful effect of Alan's and Kathleen's abuse, including discussion of a "secret signal" they'd use to help each other:
Joint portion of session with C.S. and her brother focused on two main issues: 1) assessment of their perception of their ability to impact interactions and family dynamics when visiting father and step-mother, and assist in development of ways they can support each other during visits. Assessment indicates that both perceive little to no ability to change the types of interactions or seek help from father when distressedBoth report they perceive they will "get in to trouble" indicating they perceive father will become angry with them, or they will be lectured or have to endure much discussion about their complaint. Assessment also indicates that they both experience significant distress related to interactions that occur as a result of step-mother talking about their mother. For example: R.S. indicates that if their mother calls father's home to give them a message, step-mother will question them about the content of the conversation and the reason for her call, which they find uncomfortable, and has made comments such as "she can wait to talk to you on Wednesday"R.S. also describes a situation in which his mother called to talk to him, his step-brotheranswered the phone and said R.S. was not home, when in fact he was
Assessment also indicates that both children feel a sense of aloneness and no emotional support when visiting father. Discussed the importance of them providing support to the other; and ways in which they can provide emotional support. Helped them develop a secret signal when they want to get away from Kathleen that would indicate to the other that they need an interruption or excuse to leave an interaction with her.
[Dawn's Appendix, pp. 24-25](emphasis added).
And So, Dawn's Motion---And Alan's Manipulations---Began
To contend with such behaviors and their effect upon the children, Dawn commenced a motion to substantially re-shape Alan's visitation.
Dawn suspected (correctly, as it turns out) that Alan and Kathleen would share their reaction to it with the children. [Dawn's Appendix, p. 71]. Consequently, she wanted the children to know in advance that she was beginning a Court proceeding and to share that information in a safe, supportive environment. Id. Accordingly, on March 14, 2007, in Dr. Shawchuck's presence, Dawn told the kids that she was asking the Court to help solve some visitation problems. Id. She described the motion in neutral terms, without demonizing or blaming Alan, and without disclosing even one factual contention. [Dawn's Appendix, pp. 71-75].
Dr. Shawchuck's notes of this event re-affirmed her prior impressions:
Immediately, R.S. became tearful and cried through the remainder of the session. When queried about his tears, he responds that it is going to make things worse. Assessment indicates that to him worse means that "Kathleen will say more mean things about you (referring to mother), and that it could get "only a little worse or a lot worse".repeatedly expressing the belief that step-mother will say more "mean" things about mother.
C.S. states she is worried about what will happen if they (referring to dad and s-m) find out she does not like Kathleen. When queried what she worries will happen she states that dad will get mad and yell at her.
IMPRESSION: Increased anxiety as a result of discussion of returning to Court, and the consequences of bringing issues out in to the open with fear that disclosure will worsen rather than improve the situation.
[Dawn's Appendix, pp 74-75].
In stark contrast to Dawn's choice to tell the kids as little as possible about her motion, Alan chose to tell them too much. He didn't believe Dawn's explanation was "full enough" [Transcript, Volume I., p 93, lines 21-24]. Consequently, he decided "the right thing to do would be to sit the kids down and give them a fuller, more detailed description of Dawn's motion" [Transcript, Volume I., p 94, lines 11-15]. He wanted to make sure the kids understood "the severity of her request to the court to change visitation" [Docket #118, p 2]. In his view, the kids "are old enough to be told this information and they deserve to know it"[Transcript, Volume I., p 96, lines 5-9].
Thus---with hidden video camera rolling---Alan explained to the kids:
1. That Dawn wanted his visitation with them supervised [Docket #118, p. 1; Transcript I, Volume I, p. 95, lines 7-10];
2. What "Rainbow Bridge"---a local visitation supervision center---does Transcript I, Volume I, p. 95, lines 7-22];
3. That Dawn was asking that they not be able to see Kathleen [Docket #118, p. 2; Transcript, Volume I., p. 97, lines 10-13]];
4. That Dawn was asking that they not be able to see Kathleen's sons [Docket #118, p. 2, Transcript, Volume I, p. 97. lines 14-23];
5. That Dawn was asking that they not be able to see Kathleen's extended family [Docket #118, p. 2, Transcript, Volume I, p. 97-98];
6. That Dawn was asking that they not be able to see their paternal grandparents and uncles and aunts and cousins [Docket #118, p. 2; Transcript, Volume I, p. 97, lines 4-9].
Shortly after "fully informing" the children about Dawn's motion, and just two weeks after Dawn's motion was served, Alan bought a dog, a half Lhasa Aspo, half Bichon, named Molly. He did so despite contrary medical advice. According to C.S.'s Allergist, Dr. Anand G. Kantak:
There is significant stress involved within the family. The patient spends half time with the mother and half time with father. On her last visit, I determined that she has allergies and she is allergic to animals.
Despite the skin testing showing animal allergy, dad brought dog in the home environment at kids' request. There is close contact with animal. The dog goes into C.S.'s bedroom. Mom is clearly unhappy with this situation.
1. No exposure to wood burning and no contact with animals
[Docket #153, pp. 290-291]
During the Custody Investigator's pre-hearing investigation, the factual drumbeat continued. The children's reports to her were in all respect consistent with those they'd shared through the years with a variety of counselors.
They maintained to her that, indeed, Kathleen said mean things about Dawn in their presence [Transcript, Volume II, p. 130, lines 3-11], that Kathleen was foul-mouthed and called Dawn "the A-word and B-word" [Transcript, Volume II, p. 133, lines 4-9]. They told her Kathleen had berated and put Dawn down in their presence [Transcript, Volume II, p. 134 lines 6-25]. They told her they'd heard Kathleen badmouth and berate her own sons' father, sometimes leaving him nasty voicemails [Transcript, Volume II, p. 135]. They reported that Kathleen made sarcastic comments to them about Dawn's phone calls: "It's time for your mom to call to tell you to brush your teeth" [Transcript, Volume II, p. 131, lines 4-18]. R.S. negatively described the "frequent changes" in going back and forth between his parents' homes [Transcript, Volume II, p. 132, lines 1-14]
The investigator's notes concisely captured her essential impressions of Kathleen Siewert: "overbearing, dominates conversations, interrupts, foul mouth" [Docket #153, p. 209: Transcript, Volume II, p. 133, lines 4-15]; "People are afraid to say anything about Kathleen as she is vindictive" [Docket #153, p. 210].
The investigator observed that the children shared information with her in response to non-leading, open-ended questions, and did not appear to have been coached [Transcript, Volume II., pp 135-137].
As part of her work, the investigator arranged for the children to be assessed by separate counselors at Solutions Behavioral Healthcare Professionals. R.S. was seen by counselor, Peter Moynihan, who reported:
[referring to R.S.] he has experienced major discord/conflict between his parents. R.S. identifies conflict between his parents & his step mo & his mo as the only major source of stress in his life. He reports that "They (parents) argue all the time. They don't talk to each other. He identifies negative comments by fa's wife @ at his mother as a major source of this conflict for him & he gives a recent example [Docket #153, p. 222].
There is a complicated sched. of time between parents [Docket #153, p. 223].
This 14 year old boy continues to experience significant stress related to ongoing conflict between his bio. parents & his stepmother, which is contributing to anxiety and low mood & probably to some sleep disturbance. This conflict has persisted since parents' separation 5 years ago & is exacerbated by conflict between stepmother and mother, which R.S. indicates is primarily instigated by his stepmother [Docket #153, p. 224](emphasis added).
Given the normal significant stresses of life as a teenager, his mental health may decline if parental conflict is not significantly reduced [Docket #153, p. 224].
Consequently, he diagnosed R.S. with "Adjustment Disorder with mixed anxiety and depressed mood" [Docket #153, p 224].
Carolyn Meske, of Solutions, diagnosed C.S. in this way: "Primary: (309.24 Adjustment Disorder with Anxiety. Secondary: V62.81 Relational Problem, NOS. She explained:
The strain of the on-going conflict between her mother and stepmother in particular, appears to be a direct cause of many of her symptoms, most of which are anxiety based.her symptoms will likely continue as the conflict between her mother and stepmother is [sic] remains." [Exhibit 2, p. 269]
Alan asserts that the District Court's Finding of Fact #16 is erroneous. It says:
Kathleen denied that any conduct or words of hers have caused R.S. and C.S. emotional distress. The Court finds the reports of R.S. and C.S. to the contrary and Plaintiff's Exhibit #22 (the tape) establish that Kathleen's testimony is not credible.
[Alan's Appendix, p. 57]
The Court's description of Kathleen's testimony was not erroneous. It was restrained and euphemistic.
In her affidavit and initial oral testimony, Kathleen vigorously and unconditionally denied ever having been belligerent towards Dawn [Dawn's Appendix, p. 85: Transcript, Volume II, p. 65, lines 16-19]. She denied "continually" using coarse language in the children's presence [Dawn's Appendix, p. 86: Transcript, Volume II, pp. 67-69]. And she denied discussing custody litigation with the children [Dawn's Appendix, p. 90].
Cross-examination revealed Kathleen's denials to be empty and unsupported. She quickly conceded that she doesn't like Dawn and, in fact, her feelings toward Dawn are "hostile" [Transcript, Volume II., p. 76]; She conceded that "when Alan does talk to the kids about the litigation involving them," she does nothing to stop it [Transcript, Volume II, p. 75] She confessed that she was present when Alan gave the kids his grisly description of Dawn's motion [Transcript, Volume II., p. 76].
Kathleen confirmed that, on May 15, 2005, while honeymooning with Alan, she'd left Dawn a saccharine voicemail, with an odd, provocative, and hurtful opening:
Hi Dawn. This is R.S.'s and C.S.' stepmother Kathleen:
.I'm on my honeymoon and loving every minute of it, and if I have to come home and be a stepmom to my children and let them play baseball I will. So back off. It's not your time. Your time starts at Wednesday when school gets out. Please remember that or we will be seeing you in court. Have a wonderful afternoon and by the way we're having a great honeymoon. Bye bye, Dawn. Best regards.
[Transcript, Volume II., pp 82-84](emphasis supplied).
Kathleen conceded that, on June 28, 2005, she'd sent Dawn an email, calling Dawn a "complete loser," a "bitter shrew," a "coward,", and a "pathetic excuse for a mother" [Docket #94, exhibit 3: Transcript, Volume II., p. 81].
And most harmful to Kathleen's credibility, in the Court's view, was a tape played during her testimony of a voicemail she'd left Dawn on November 14, 2004:
Oh, Dawn, you know, you're pretty pathetic. You need to quit undermining these kids' relationship with me because I'm not going anywhere unlike you. You're the one who is leading a sad, sorry, pathetic little life with your boyfriendwho can't even keep his dick in his pants besides, you know, even you, being the bitch that you are probably scared him away. And you know, this is war because you chose it and I'm not going to back down. I love those children, and you know, pathetic as you are with your pathetic email on Wednesday, this is my custodial time. You're so smart, bitch, you stay away til 10:00 o'clock when your own daughter was sick. How bad does that look? Pretty pathetic, as you are. So you back off bitch. I'm not putting up with your shit any more. Goodbye, bitch.
[Transcript of Plaintiff's Exhibit #23](emphasis added).
In the face of this mountain of evidence of Kathleen's hostile and inappropriate behaviors, Alan submits an appellate brief devoted to the proposition that Dawn "instigated" such hostilities. That proposition is unsupported by the evidence and record of this case, as Custody Investigator, Laurie Christianson testified:
Q. And R.S. and C.S. have not reported to you or to anyone that you know of that Dawn makes negative comments to them about Kathleen.
A. I've never heard that, no.
Q. You have never heard that. And in this whole mass of stuff we have accumulated, there is not a voice mail, there is not an email, you don't have a references or evidence of Dawn having made negative references to R.S. or C.S. about Kathleen.
A. I don't recall any.
Q. Okay. Or any similar remarks from Dawn to the kids or in their presence about their father.
A. I don't recall hearing any, no.
[Transcript, Volume II, p. 143].
During his testimony, Alan then confirmed Dawn's and the children's assertion that he did not believe their claims about Kathleen's hostile remarks about Dawn [Transcript, Volume I, p. 63, lines 6-10]. In his view, his daughter lied when she told Dr. Shawchuck Kathleen called Dawn an asshole and a bitch [Transcript, Volume I, p. 66, lines 7-11, p. 69, lines 12-18, p. 75, lines 16-22]. He believed his son lied when telling people Kathleen gets mad and debriefs him after Dawn's calls [Transcript, Volume I, p. 68, lines 6-23, p. 75, lines 20-23].
Referring to the future---importantly---Alan confirmed he would not believe similar reports should they ever arise:
Q. ifC.S. came to you and said, "When I was with Kathleen, she called mom a bitch or a liar or an asshole, you wouldn't believe her, would you?
A. I would talk to my wife about it.
Q. That's not not what I that's not what I asked you. You heard exactly what I asked you, didn't you?
A. I would not believe C.S.
[Transcript, Volume I, p. 71, lines 12-25].
The Good Dr. Timm
Alan suggests that the testimony of Dr. Stephen Timm was particularly helpful. Dawn agrees that it was helpfulbut to her, not to Alan.
First of all, Dr. Timm, affirmed that the scope of his employment in this case did not include rendering opinions about custody [Transcript, Volume II., pp 23-24]. Second, he conceded that his entire fund of knowledge in this case was gained from the pleadings the Court had been provided, a 1½ hour session with Alan and Kathleen, and viewing the DVD of Alan's kitchen table review-of-mom's-motion with the kids [Transcript, Volume II, pp. 22-23].
Perhaps more telling than what Dr. Timm did do, and did know, was what he did not do, and did not know. For example, he did not:
1. Require Alan to undergo any objective personality testing [Transcript, Volume II, p. 26];
2. Require Kathleen to undergo any objective personality testing [Transcript, Volume II, p. 26];
3. Meet, interview, or test Dawn [Transcript, Volume II, p. 26];
4. Speak to the kids' prior mental health providers [Transcript, Volume II, p. 26-27];
5. Meet, interview, or test C.S [Transcript, Volume II, p. 27];
6. Meet, interview, or test R.S. [Transcript, Volume II, p. 27];
7. Spend over a year and a half with C.S. in therapeutic sessions, as had Dr. Shawchuck [Transcript, Volume II, p. 27];
8. Ask C.S., face-to-face, whether Kathleen ever called her mom coarse names [Transcript, Volume II, p. 28];
9. Ask C.S., face-to-face, whether Kathleen interrogated her after Dawn's phone calls [Transcript, Volume II, p. 28];
10. Ask R.S., face-to-face, whether Kathleen ever called his mom coarse names [Transcript, Volume II, p. 29];
11. Ask R.S., face-to-face, whether he and his sister deliberately avoided Kathleen because her comments were hurtful to them [Transcript, Volume II, p. 29];
12. Observe the children's demeanor [Transcript, Volume II, p. 29];
13. See the kids interact with Kathleen [Transcript, Volume II, p. 38].
His absence of information, aside, Dr. Timm testified by affidavit that:
Dawn Siewert believes Kathleen is a serious threat to the emotional well-being of R.S. and C.S., and Alan passively reinforces Kathleen's behavior; and
There is insufficient evidence to support Dawn's belief.
[Dawn's Appendix, pp. 79-80].
This "ultimate opinion" was one within the Court's province, however, and not the kind of "expert opinion" that would provide the Court needed information or assistance.
Upon cross-examination, however, Dr. Timm quickly conceded that if Kathleen did refer to Dawn coarsely in the kids' presence, use sarcasm and interrogation to discourage their phone contact with Dawn, and tell the kids Dawn was going to jail, such behaviors would surely be "threatening to the kids' emotional well-being" [Transcript, Volume II, pp 30-31].
He conceded that, if he knew the kids' various reports to their earlier counselors had since been reiterated to the Custody Investigator and the two counselors she'd arranged to see the kids, he'd reconsider the general opinion his affidavit had offered [Transcript, Volume II, pp. 30-37].
Finally, referring to Kathleen's alienating behaviors, Dr. Timm helpfully testified:
Q. Yes. Assuming those behaviors are taking place, and with some regularityyou would agree with me that those behaviors are inappropriate?
Q. That's pretty easy. You would also agree with me, Dr. Timm, that those types of behaviors would be harmful to R.S. and C.S.'s mental health and well-being?
Q. You would also agree with me, doctor, that if those behaviors are taking place, something corrective should be done to make them stop?
A. If so, yes.
Q. You would agree with me doctor, that if Dawn had a reasonable belief that those behaviors were taking place, it would be appropriate for her to take action to make them stop?
A. If so, yes.
Q. And you would agree with me, doctor, that if she took corrective measures and nothing was working, it would be reasonable and appropriate for her to ask the Court to help?
[Transcript, Volume II, pp. 37-38].
Dawn agrees with Alan's articulation of the law relative to expert testimony. The District Court can not arbitrarily disregard expert testimony; however, it may assign the weight to be given the expert's opinion and does not have to accept the testimony as conclusive. Brandt v. Brandt, 523 N.W.2d 264, 266 (N.D.1994); When expert testimony is relevant, the trial court should weigh the validity of the opinion and take it into consideration. Loll v. Loll, 1997 ND 51, ¶ 22, 561 N.W.2d 625.
There is nothing in the record of this case from which it can be reasonably deduced that the District Court did anything other than abide in all respects with these legal bromides.
It Was Not an Abuse of Discretion to
Decline to Appoint a Guardian Ad Litem
As he did before the District Court, Alan half-heartedly argues that a Guardian Ad Litem should have been appointed for the children. Before that Court, his attorney's urgings on the Guardian Ad Litem issue were all contained within a single breath [Transcript, May 15, 2007, p. 6]. Loose justifications were offered: "There are allegations of influence by parties" [Id.]; The case presents "allegations of alienation" [Id.]; The parties are making "allegationsof mental abuse of these children" [Id.].
Dawn's counsel opposed the request, stating: "There aren't the kinds of allegations involved here that you typically see where a guardian is involved. There's not physical abuse or drug involvement, or those types of more combustible issues" [Transcript, May 15, 2007, p. 4]. He also cited cost considerations [Id., at p. 5].
The Court considered Alan's request to appoint a Guardian Ad Litem in conjunction with his requests for the appointment of a custody investigator and for parental capacity evaluations [id., at pp. 4-13], as Alan sought to make the litigation as big as possible. It ultimately announced, "the additional request for guardian ad litem for the children and parental capacity testing is denied."
The Court did, however, appoint a custody investigator. In doing so, it empowered and charged her with expansive investigative duties and powers, including, by way of example:
1. reviewing psychological, psychiatric, educational, criminal and child protection reports;
2. interviewing mental health providers;
3. interviewing the parties and the children; and
4. recommending appropriate psychological and other evaluations (which she did).
[Alan's Appendix., pp. 35-36]
At the front end of its involvement, when the Court declined to appoint a Guardian Ad Litem, it had already been provided multiple and exhaustive affidavits from both Alan and Dawn [Docket #86, 88, 94, 100, 115, 118], from no less than ten of Alan's supporting witnesses [Docket #107-117], and from eight of Dawn's supporting witnesses [Docket 136-143]. Dawn's and Alan's Affidavits provided the Court virtually all of the children's mental health records.
Later, by the time the Court actually decided this case, it was even more informed. It had received into evidence not only the Custody Investigator's report [Alan's Appendix, pp.41-53], but the entire 292 pages of her investigative file [Docket #153]. The investigative file included, among other information, both parties' mental health records and fresh, independent mental health reports regarding the children. By the time the record had closed, the Court had the benefit of Psychologist Carita Shawchuck' deposition testimony [Docket #154], and the testimony and exhaustive cross-examination of Dawn, Alan, Alan's current wife, Dr. Timm, the Custody Investigator and Officer Bergum [Transcripts, Volume I and II].
It is hard to imagine what benefit the Court would have gained, what additional relevant evidence it would have received, by involving a third attorney. It is, perhaps, harder to imagine what benefit the children would have gained by having to interact with yet another adult, to discuss the effects of their parents' disputes.
The Court is empowered to appoint Guardians Ad Litem in custody and visitation disputes. N.D.C.C., 14-09-06.4; N.D.R.C., Rule 8.7. That power is discretionary. Hanson v. Hanson, 2005 ND 82, ¶ 17, 695 N.W.2d 205.
A district court's decision to proceed without a guardian ad litem will not be overturned unless the court has abused its discretion. Hanson, Id.; Hilgers v. Hilgers, 2002 ND 173, ¶ 7, 653 N.W.2d 79. It has not done so unless it acted in an arbitrary, unreasonable, or unconscionable way. Healy v. Healy, 397 N.W.2d 71, 75 (N.D. 1986).
This Court has affirmed a district court's refusal to appoint a guardian ad litem where there "is no indication that a guardian ad litem was needed" to represent a minor child. Hilgers, Id., at ¶ 10. It has also affirmed a district court's refusal to appoint a guardian ad litem where the court was otherwise "familiar with the background of the case and the circumstances of the family." Ludwig v. Burchill, 514 N.W.2d. 674, 677 (N.D. 1994).
The Siewert children were not in need of separate representation. The Court was abundantly informed and received exhaustive advocacy. The Court did not abuse its discretion by declining to make this case even bigger, even more expensive, and to involve the children even more.
The Bottom Line: In Light of This Family's Dysfunction and Hostility,
Equal Parenting Time and Shared Decision-making Are Inappropriate
Every Siewert family member, every person in any way related to the Siewerts, and every witness to this action, in one way or another described the Siewerts' parenting relationship as one of dysfunction and chronic hostility. The dysfunction and hostility is perceptible to those in close contact with this family, such as family members and friends. Tellingly, it is also apparent to those who have passing brushes with the Siewerts, such as the Allergist, Dr. Kantak.
The qualitative and experiential effect of this dysfunction on those who merely observe it is surely different than for those who are both the subject and object of it, the Siewert children. In fact, Alan agrees: "In the instant case, the evidence confirms harm to the children by conflict among the adults" [Alan's brief, ¶ 76].
Keeping the children and their best interests in mind, should also help keep the right questions in the forefront. The battleground in this case should not be the playground issue of "who started it?" Instead, the central focus should be, if dysfunction and hostility exists in this family, "what should we do about it?" To this question, this Court has spoken.
Where hostility prevails, we do not sentence children to an equal parenting time arrangement:
to support an alternating custody arrangement, we require a factual finding it is in the child's best interest, "because it is generally not in the child's best interest to be bandied back and forth between parents in a rotating physical custody arrangement." Kasprowicz v. Kasprowicz, 1998 ND 68, ¶ 15, 575 N.W.2d. 921.
"Legal writers and child development professionals are in general agreement that a joint custody arrangement can work only if the parents are able to cooperate." 2 John P. McCahey et al., Child Custody & Visitation Law and Practice § 13.01 (1998). "The success of any custody resolution must ultimately rest with the parents. If they cannot set aside their differences and conflict[s] when dealing with their roles as parents, the innocent child will most surely suffer." (citation omitted).
Jarvis v. Jarvis, 1998 ND 163, 584 N.W.2d 84, 92 (emphasis added).
Where parental strife and hostility prevails, neither do we bind parents to the perpetual combat of joint decision-making:
This Court has noted that joint decision-making works only where parents are "determined to cooperate," Olson v. Olson, 361 N.W.2d 249, 251 (N.D. 1985). Consequently, it has reversed District Courts that require joint decision-making of uncooperative parents. Under circumstances not entirely unlike those in this case, this Court recently stated:
Shared decision-making authority can be successful only where the parties have demonstrated an ability and willingness to cooperate in the children's best interests. See, Olson v Olson, 361 N.W.2d 249, 251 (N.D. 1985). The evidence in this case demonstratescontinuous conflict over parental decisions. Rather than extend that conflict and cause further judicial intervention to mediate any future conflict, we conclude it is important to keep all decision-making authority with the sole custodial parent, Mary.
Zuger v. Zuger, 1997 ND 97, ¶ 34, 563 N.W.2d 804(emphasis supplied).
Alan's Appeal is Frivolous.
Dawn Should be Awarded Double Costs and Fees
If the Court determines that an appeal is frivolous, or that any party has been dilatory in prosecuting the appeal, it may award just damages and single or double costs, including reasonable attorney's fees.
N.D.R.App.P., Rule 38.
"An appeal is frivolous under Rule 38, N.D.R.App.P., 'if it is flagrantly groundless, devoid of merit, or demonstrates persistence in the course of litigation which could be seen as evidence of bad faith.' " Questa Res., Inc. v. Stott, 2003 ND 51, ¶ 7, 658 N.W.2d 756 (quoting Mitchell v. Preusse, 358 N.W2d 511, 514 (N.D. 1984)).
The factual record in this case---despite Alan's attempt to stretch and spin it---is over-whelming. The law applicable to this record is clear. Together, the record of this case and the law applicable to it renders Alan's fact-based appeal "devoid of merit." Whether his pursuit of appellate relief is negligent self-delusion or intentional bad faith matters not: In either instance, it is unjust for Dawn to bear a mountain of fees to contend with it.
The District Court's Amended Judgment, dated January 5, 2008, denying Alan's change-of-custody motion and reducing his visitation, should be affirmed. Alan's appeal should be deemed frivolous. He should be required to pay Dawn double fees and costs.
The District Court's Order of April 15, 2008, dismissing Dawn's motion to review Alan's child support, should be reversed. The District Court should be instructed to modify Alan's obligation back to February, 2008, when such motion began, because North Dakota law makes doing so mandatory.
Respectfully submitted this 18th day of June, 2008.
|Gjesdahl Law Office|
|Michael L. Gjesdahl|
|1375 21st Avenue N., Ste A|
|Fargo, ND 58102|
|Attorney ID #04658|
|Attorney for Dawn Siewert|