IN THE SUPREME COURT
STATE OF NORTH DAKOTA
|Shannon R. Dieterle,|
|Plaintiff and Appellee,||BRIEF OF|
|Angela L. Dieterle,|
|Defendant and Appellant.|
|Supreme Court No. 20120329|
|Sheridan County Case No. 42-2011-DM-00021|
Appeal of the Judgment and Decree of Divorce, dated August 17, 2012, by the Honorable Donald J. Jorgensen, District Judge, South Central Judicial District, such appeal being taken to the North Dakota Supreme Court
|Lynn M. Boughey (04046)|
|Attorney for Appellant|
|P.O. Box 836|
|Bismarck, ND 58502-0836|
|I. TABLE OF CONTENTS|
|I. Table of Contents2|
|II. Table of Citations3|
|III. Statement of Issues....¶1|
|IV. Statement of the Case....¶8|
|V. Statement of the Facts....¶30|
|A. Issue 1¶32|
|B. Issue 2¶57|
|C. Issue 3¶61|
|D. Issue 4¶70|
|E. Issue 5¶87|
|F. Issue 6¶89|
|VII. Certificate of Compliance Word Count.¶97|
|VIII. Certificate of Word Processing Program.¶99|
|II. TABLE OF CITATIONS|
|Cass County Elec. Co-op., Inc. v. Northern States|
Power Co., 518 N.W.2d 216, 221 (N.D. 1994) .¶68
|Chiappone v. Chiappone, 984 A.2d 32, 39 (R.I.2009) .¶67|
|Crandall v. Crandall, 2011 ND 136, ¶¶ 17-19, 799|
|Dilbeck v. Dilbeck, 245 P.3d 630, 2010 OK|
CIV APP 142.¶67
|Edwards v. Rothschild, 60 A.D.3d 675, 678, 875|
|N.Y.S.2d 155, 159 (N.Y.A.D. 2 Dept. 2009) ..¶67|
|Farm Credit Bank v. Brakke, 512 N.W.2d 718, 720 |
|Fischer v. Fischer, 139 N.W.2d 845 (N.D. 1966).¶71|
|Grisanti v. Grisanti, 4 A.D.3d 471, 474475, 772|
|Hammeren v. Hammeren, 2012 ND 225 ¶¶ 6-7, ___|
|N.W.2d ___. ..¶34, ¶60|
|Held v. Gomez, 35 A.D.3d 608, 824 N.Y.S.2d 741.¶67|
|In re Marriage of Brown, 778 N.W.2d 47, 54|
|In re Marriage of Kilpatrick, 198 P.3d 406, 410|
|In re Marriage of Matthews, 101 Cal.App.3d 811,|
161 Cal.Rptr. 879, 882 (1980)...¶67
|In re Marriage of Stephens, 810 N.W.2d 523, 830-831|
(Iowa App.,2012). ¶67
|In re Marriage of Young, 370 N.W.2d 57, 6566 |
|In re M.B., 2006 ND 19 ¶ 12, 709 N.W.2d 11 ..¶68|
|In re Paternity of A.R.R., 634 N.E.2d 786, 789|
|Kosobud v. Kosobud, 2012 ND 122, ¶6, 817|
|Larocka v. Larocka, 43 So.3d 911, 91213|
|Meyr v. Meyr, 195 Md.App. 524, 7 A.3d 125, 138|
|Meyr v. Meyr, 195 Md.App. 524, 549, 7 A.3d 125, 140|
|Molitor v. Molitor, 2006 ND 163 ¶ 21, 718 N.W.2d 13¶94|
|Morton County Social Service Bd. v. Schumacher,|
2004 ND 31 ¶¶ 30-31, 674 N.W.2d 505..¶68
|Pratt v. Pratt, 56 So.3d 638, 644 (Ala.Civ.App.2010)¶67|
|Ruff v. Ruff, 78 N.D. 775,52 N.W.2d 107 (1952) .¶71|
|Telek v. Bucher Not Reported in S.W.3d, 2010 WL|
1253473 page 4 (Ky.App. 2010) ...¶67
|Walters v. Walters, 12 Neb.App. 340, 673 N.W.2d|
585, 592 (2004).¶67
|Wolt v. Wolt, 803 N.W.2d 534, 2011 ND 170 ¶ 40 ¶66|
|Woodward v. Woodward, 2010 ND 143, ¶9,|
|785 N.W.2d 902.¶93|
|Yates v. Yates, 963 A.2d 535, 540, 2008 PA Super 296 ¶67|
|North Dakota Century Code|
|N.D.C.C. § 14-05-24(1)¶34, ¶71|
|N.D.C.C. § 14-09-2-02¶66|
|N.D.C.C. § 14-09-06.2¶94|
|Rules of Court|
|Iowa Rules of Court|
|Iowa Code § 598.41¶67|
¶1 III. STATEMENT OF ISSUES
¶2 Issue 1: The district court failed to apply the best interest factors, failed to make sufficient or proper findings as to any of the best interest factors, and failed to make proper findings of fact in regards to the domestic violence committed by Shannon against Angie and the child, which were described through the testimony of Angie and her two other daughters, totally disregarding the testimony in one sentence where the district court found both the mother and her older twin daughters "not credible."
¶3 Issue 2: The district erred in awarding primarily residential responsibility to Shannon.
¶4 Issue 3: The district court has improperly delegated its decision as to the issuance and content of the parenting plan to a parenting coordinator.
¶5 Issue 4: The district court, in awarding property, has made numerous and obvious mistakes, and failed to take into account the parties differences in income, Shannon's insistence that Angie quit her job, and both parties testimony that Angie should be allowed to remain on the ranch.
¶6 Issue 5: The district court, in awarding spousal support, failed to take into account Angie quitting her job at the insistence of Shannon; moreover, the district court should have awarded Angie substantially more in spousal support given the difference in income of the parties and the stated desire of both parties for Angie to be able to stay on the ranch.
¶7 Issue 6: In the event of a remand, the district court should not continue on the case due to the district court's demonstrated bias against Angie as shown by the district court's explicitly declaring Angie to have no credibility, ignoring any countervailing evidence (even that submitted by the custody investigator), issuing factual findings that are absolutely incorrect or not supported by the evidence received, and failing to look at the evidence fairly and objectively.
¶8 IV. STATEMENT OF THE CASE
¶9 This is a divorce and custody action involving a two and one-half year-old female child who has lived with her mother full-time her whole life. The parties began dating in the fall of 2008 and were married on February 20, 2009. At the time the action was filed Angie had three children from a prior relationships, an adult son and two twin daughters, age 13 at the time of trial. Memorandum Decision at page 1, App. 134.
¶10 Shannon and Angie had one child from the marriage, B.D. The parties had separated on July 23, 2011, and the action was commenced on August 1, 2011. Summons and Complaint, Doc. No. 1 & 2, App. 12-15. (Angela had different counsel throughout the early phases of the matter; Mr. Boughey was substituted as counsel in May 2012, approximately one month before the trial. Doc. 213.)
¶11 A hearing on a motion for Interim Order was held on October 19, 2011, Transcript Doc. No. 73, where the court stated it would be appointing a parenting investigator (T. 63), ordered both parents to enroll in a parenting program (T. 64), awarded interim primary residential responsibility with Angie with reasonable visitation by Shannon twice a week, two hours each day visitation occurs (T. 64); no overnights were allowed but could be requested later (T. 66). Angie was given use of the primary residence (T. 66). Shannon was ordered to file a financial affidavit by the end of the week and child support would be determined based on that affidavit (T. 67). The Court also awarded Angie $500 a month in interim spousal support (T. 68). An Interim Order consistent with the Court's verbal rulings was issued on November 17, 2011, Doc. No. 61.
¶12 Another Interim Order hearing was held on December 20, 2011, Transcript Doc. No. 88, involving property taken by Shannon from the ranch that were needed to run the ranch and visitation; the Court ordered that the twice-a-week (T. 54) visitation begin immediately and occur at the Family Safety Center (T. 54) until the parties agreed on a third person to use for transfer of the child (T. 58), specified Christmas visitation to include one overnight (T. 56), and authorized Angie to hire someone and make expenditures necessary to the running of the business due to the equipment taken from the property by Shannon, noting that Shannon will have to pay part of these expenditures (T. 59). An Amended Interim Order consistent with the Court's verbal order was issued on January 6, 2012, and also included the appointment of Barb Oliger as the parenting investigator. Doc. No. 75.
¶13 Throughout this case, until the decision was rendered, the child remained with Angie at the ranch which is the only place the child has known and Angie acted as a full-time mom while continuing the ranch operation. Shannon worked at a large plant split shift, working twelve hour swing shifts (day or night) and driving over an hour each way.
¶14 On April 5, 2012, the Court held a hearing on Shannon's motion for contempt against Angie relating to visitation. Transcript Doc. No. 230. Angie testified that the child, now two years old, had been diagnosed with separation anxiety and adjustment disorder due to the visitations (T. 21) and that at the Christmas visit the child was returned at 4 pm on December 26, 2011, but had not been provided lunch or given a nap (T. 34). The Court took a 30 minute break and instructed counsel in Chambers to figure out a visitation schedule from today's date to the date of trial (T. 44). A facilitator was selected to handle any issues (T. 48-49.) The Court issued a Second Amended Interim Order on April 23, 2012, implementing the stipulation arrived at by the parties. Doc. No. 184. There is no indication on the record as to whether the pending motion was withdrawn, and no decision was issued relating to the pending motion.
¶15 The parenting investigator issued her report dated May 18, 2012, recommending that Shannon be awarded primary residential responsibility. Doc. No. 217, App. 26.
¶16 On May 25, 2012, the Court issued an Order denying Angie's motion to amend the Interim Order. Doc. No. 229, App. 64.
¶17 On June 6, 2012, Angie filed her 8.3 Property and Debt Listing. Doc. No. 244. On June 11, 2012, a preliminary Joint Property and Debt Listing was filed. Doc. No. 251. A final version was filed on June 13, 2012. Doc. No. 253.
¶18 A two-day trial was held on June 19 and 20, 2012. At the trial Angie filed a proposed parenting plan , Exhibit 65, Doc. No. 380, App. 109, and an 8.3 Property and Debt Listing, Exhibit 68, Doc. No. 383, App. 124. Shannon filed his 8.3 property and debt listing as well. Exhibit 52, Doc. No. 370, App. 88.
¶19 The nine-page Memorandum Decision is dated July 12, 2012, Doc. No. 255, App. 134-142, in which the Court found domestic violence on the part of Angie and dismissed the testimony of Angie and her older twin-daughters as "not credible." Page 3, App. 136. Primary residential responsibility was provided to Shannon, with Angie receiving weekly parenting time "when [Shannon] is employed." Page 4, App. 137. In addition, Angie was also provided two weekends per month, "again coordinated with [Shannon's] employment," alternating holidays, splitting Christmas holidays once the child begins school, one full week during the summer for vacation, and an unspecified extended parenting time. Page 4, App. 137. The parties were directed to use the parenting coordinator and "develop a parenting plan by and through a parenting coordinator." Page 4, App. 137. The Court accepted the calculations used to determine the child support amount (Exhibit 24) and required Angie to pay $199 per month child support. Page 4, App. 137; Doc. No. 357, Exhibit 24, App. 75.
¶20 As to the division of property and debts, the district court employed Exhibit 68, Angie's Property and Debt Listing, and ordered that the ranch be sold not later than August 1, 2012, and that the equity be split between the parties (Page 6, App. 139); the specific property and debt items were distributed by the court resulting in Shannon receiving a net amount of $112,423.31 and Angie receiving a net amount of $24,184.04. Page 8, App. 141.
¶21 As to spousal support, the district court found that neither party were substantially disadvantaged by the marriage but provided Angie $750 per month rehabilitative spousal support due to her need to relocate and interruption of her self-employment that will be caused by her relocation. Page 8, App. 141.
¶22 In addition, the district court awarded Angie $2,500 in attorney fees. Page 8, App. 141.
¶23 The Order Appointing Parenting Coordinator is also dated July 12, 2012, Doc. No. 256, App. 143-144, and provides that the parenting coordinator shall "develop" the parenting plan and file the plan with the clerk of court.
¶24 Clarification was requested regarding one aspect of the court's decision and the Court issued an "Addendum" clarifying the decision as to who should have the child when Shannon was working (the mother). The district court's Addendum clarifying Angie's parenting time while Shannon is at work is dated August 6, 2012, Doc. No. 266, App. 175-176. The parenting coordinator developed the parenting plan and submitted it to the Court (but apparently not to the Clerk of Court, as directed by the district judge) on or about September 1, 2012 and copies were at some point provided to the parties. At about the time the parenting coordinator submitted the parenting plan to the Court, the Court the Honorable Donald Jorgenson became ill.
¶25 Although copies of the plan have been provided by the parenting coordinator to both counsel (and as mentioned above was sent directly to the Court), the Court did not file the plan and as such it is a matter of record only through subsequent filings. Doc. No. 283, App. 197. The parenting time contained in the plan lasts through the end of December.
¶26 Mr. Boughey attempted to obtain clarification from the Court as to several items, including the obvious mistake contained in the memorandum decision relating to property distribution property items, through letters to the district court dated July 27, 2012 and July 30, 2012. Doc. No. 261-263, App. 145-167.
¶27 Due to an existing protection order obtained by Angie against Shannon, on August 1, 2012, the district court issued an Order Allowing Contact between the parties for the purposes of transferring property. Doc. No. 265, App. 174.
¶28 On August 16, 2012, the district court issued an Addendum to Memorandum Decision selecting a realtor (since the parties were unable to agree) and clarifying the Court's intent regarding parenting time when Shannon was at work. Doc. No. 266, App. 175-176.
¶29 The district court's Findings of Fact, Conclusions of Law, and Order for Judgment were entered on August 17, 2012. This document failed to include the modification made by the district court's Addendum and failed to allow Angie to revert back to her maiden name. Judgment and Decree of Divorce was entered on August 17, 2012, Doc. No. 268, App. 187, and Notice of Entry of Judgment was issued on August 20, 2012. Doc. No. 269, App. 194. The Notice of Appeal was filed on August 20, 2012. Doc. No. 270, App. 195.
¶30 STATEMENT OF THE FACTS
Relevant facts in dispute are as follows:
1. the child had been diagnosed with separation anxiety and adjustment disorder due to the visitations, T. 21;
2. Angie has a history of getting and then terminating terminating domestic violence orders, T. 235, 236, 296, 435, Doc. 217 at 8, 33;
3. Angie properly used the court processes and whether Shannon and his family did so as well, T. 235, 236, 296, T. 435, Doc. 217 at 8, 33.
4. Angie committed domestic violence against Shannon, Angie T. 44-48, 55-58, 293-296; MH T. 270-271; LH 291; Doc. 217 at 35.
5. Shannon committed domestic violence against Angie and the child, Angie T. 65-66, 293-296; M.H. T. 267, 268, 269-271, 273; LH 283, 284, 286-287, 290, 291; Doc. 217 at 17, 21, 35.
6. The testimony of Angie and her older twin-daughters is "not credible" Page 3, App. 136; Angie T. 293-296; M.H. T. 267, 268, 269-271, 273; LH 283, 284, 286-287, 290, 291; Doc. 217 at 17, 21, 35.
7. The Court provided insufficient spousal support given the joint decision for Angie to stay home and raise the kids, including an amount insufficient for Angie to stay on the ranch as both parties had agreed, Page 8, App. 141, T. 12-13, 41-42, 91-92, 363, 374-375, 384, 418, 470, 479, 480.
8. Angie should have been awarded primary residential responsibility, passim.
9. The division of property is unfair to Angie, page 8, App. 141.
10. The district court has demonstrated palpable bias against Angie by its refusal to consider her or her children credible and by deciding the case by applying only two of the thirteen best interest factors, App. 134-142.
The following facts are undisputed :
1. The child raised by the mother her entire life and nothing in the record indicates that Angie is or has been anything but a good mother to the child, T. 416, passim.
2. The Court made many obvious mistakes relating to division of property, including failing to award some property and awarding other property to both parties, App. 140, Doc. Nos. 260-263, and 258-259.
3. The Court failed to allow Angie to remain on the property, even though both parties agreed to this, Page 6, App. 139, T. 95-96, 125, 247-248, 422.
4. The district court allowed the parenting coordinator to draft the parenting plan and failed to issue a parenting plan, Doc. No. 256, App. 143.
¶31 VI. ARGUMENT
¶32 Issue 1: The district court failed to apply the best interest factors, failed to make sufficient or proper findings as to any of the best interest factors, and failed to make proper findings of fact in regards to the domestic violence committed by Shannon against Angie and the child, which were described through the testimony of Angie and her two other daughters, totally disregarding the testimony in one sentence where the district court found both the mother and her older twin daughters "not credible."
¶33 The lower court failed to discuss each of the best interests factors and in reaching its decision, obliquely discussed only two factors: domestic violence and willingness to facilitate parenting time. The lower court's decision and analysis in regards to placement of the child with Shannon consisted in this one sentence:
The evidence of domestic violence presented to this Court, together with [Angie's] behavioral patterns in the manipulation and interference with parenting time, precludes this Court from placement of the minor child B.D. in the primary parenting responsibility of [Angie].
Page 4, App. 137. Significantly, the district court did not discuss whether the domestic violence presumption applied. Instead, the district court delved into Angie's history and determined that Angie, through her prior acts, had "destroyed her credibility with this Court" by her prior conduct. Page 4, App. 137. But the fact that the district court decided that Angie was not credible to him does not relieve the court from its duty to determine the best interests of the child and to apply all thirteen of the best interests factors.
¶34 This Court has often stated the the lower court must consider the best interests of the child and all the relevant factors contained in Section 14-09-06.2(1):
The trial court must award primary residential responsibility to the parent who will better promote the child's best interests. [Citation omitted.] The court must consider the best interests of the child in awarding primary residential responsibility and all the relevant factors under N.D.C.C. § 14-09-06.2(1).
. . .
"Although a separate finding is not required for each statutory factor, the court's findings must contain sufficient specificity to show the factual basis for the custody decision." [Citation omitted.]
Hammeren v. Hammeren, 2012 ND 225 ¶¶ 6-7, ___ N.W.2d ___. Instead of applying the facts to the best interest factors, the district court simply decided that Angie was not credible and therefore Shannon would receive primary residential responsibility.
¶35 Even if the conclusions about Angie were true (which we assert they are not), she may nonetheless be the person who would be the better parent.
¶36 The evidence clearly indicated in regards to factor a (the love, affection, and other emotional ties existing between the parents and child and the ability of each parent to provide the child with nurture, love, affection, and guidance) that Angie had a closer connection to the child and that indeed the child had been diagnosed with separation anxiety and adjustment disorder due to the visitations. The district court did not discuss this factor at all.
¶37 The evidence clearly indicated in regards to factor b (the ability of each parent to assure that the child receives adequate food, clothing, shelter, medical care, and a safe environment) that Angie had been and was able to continue assuring that the child's needs were met. The district court did not discuss this factor at all.
¶38 The evidence clearly indicated in regards to factor c (the child's developmental needs and the ability of each parent to meet those needs, both in the present and in the future) that Angie had been providing for the child's developmental needs throughout its first two years of live to the present and would do so in the future. The district court did not discuss this factor at all.
¶39 The evidence clearly indicated in regards to factor d (the sufficiency and stability of each parent's home environment, the impact of extended family, the length of time the child has lived in each parent's home, and the desirability of maintaining continuity in the child's home and community) the evidence is undisputed that the child had lived only at Angie's home, from birth through separation and that the Court had allowed Shannon very limited visitation throughout the interim period. The district court did not discuss this factor at all.
¶40 The district court did discuss factor e (the willingness and ability of each parent to facilitate and encourage a close and continuing relationship between the other parent and the child) and concluded that Angie would not facilitate parenting time with Shannon. But of course this is only one of the best interests factors and the district court is imbued with sufficient powers to ensure that parenting time occurs.
¶41 There was reference by the district court to factor f (the moral fitness of the parents, as that fitness impacts the child). Although the district court made some comments that could be perceived as finding moral failings by Angie, such failings were not delineated with any specificity or supported by a specific findings of fact, and none of the concerns mentioned by the district court that could be construed as moral failings were in explicitly tied to negatively impacting the child.
¶42 The evidence in regards to factor g (the mental and physical health of the parents, as that health impacts the child) did not indicate that Angie had any mental or physical problems, but the evidence did indicate that Shannon had a drinking problem. The district court did not discuss this factor at all.
¶43 The evidence clearly indicated in regards to factor h (the home, school, and community records of the child and the potential effect of any change) that the child lived at the same ranch her whole life and in the community where the range was located and any change to that living environment would be difficult for the child. The district court did not discuss this factor at all.
¶44 Factor i, relating to the preference of the child who is of suitable age and maturity to state a preference, would not apply due to the young age of the child -- although Angie strongly asserts that the child does prefer to be with her. The district court did not discuss this factor at all.
¶45 In regards to domestic violence, best interest factor j, it is clear that the district court found this factor in favor of Shannon and against Angie, but it is not clear if the district court applied the presumption against Angie.
¶46 The district court did not limit itself to domestic violence in the relationship between the parties but delved into Angie's history of claiming domestic violence in prior relationships (which were verified through the parenting investigator's report). It is clear however that the district court made no reference to any domestic violence incident which resulted in serious bodily injury or involved the use of a dangerous weapon. And in regards to any pattern, the district court merely referred to a pattern of verbal abuse by Angie. Nor can it be said that the domestic violence found by the district court was current, nor did the district court "cite specific findings of fact to show that the residential responsibility best protects the child and the parent or other family or household member who is the victim of domestic violence." The district court also considered Angie's conviction for simple assault even though both parties had not been charged and that the other proceeding was not under chapter 14-07.1.
¶47 The evidence clearly indicated in regards to factor k (the interaction and interrelationship, or the potential for interaction and interrelationship, of the child with any person who resides in, is present, or frequents the household of a parent and who may significantly affect the child's best interests) that the child has a close relationship with her two older step-sisters and taking the child away from that close relationship would be detrimental to the child. The district court did not discuss this factor at all.
¶48 Factor l, involving allegations of harm to a child as defined in section 50-25.1-02, did not apply. The district court did not discuss this factor at all.
¶49 The evidence clearly indicated in regards to factor m (any other factors that may be relevant) that Shannon's work schedule is not conducive to taking care of the child, that Angie was able to be a full-time mom, and if she had been awarded primary residential responsibility and a fair equitable division of the property (such as being awarded sufficient funds to pay off the range loan) Angie would have been able to remain at the ranch and allow the child and her two sisters to remain at their home and place of Angie's business selling and rearing horses. The district court did not discuss this factor at all.
¶50 In regards to any discussion of facts, the district court apparently based its conclusion relating to domestic violence on the following factual findings which will be reviewed to determine if there are any facts on the record to support these conclusions or if the fact listed by the district court is inaccurate or irrelevant:
¶51 "Defendant has secured various domestic violence protection orders on a temporary basis, with the issuing Court terminating the same prior to granting permanent status for such protection orders." Page 3, App. 136.
As clearly indicated in the parenting investigator's report and her testimony, this statement of fact (that all of the protection orders were terminated by the issuing court) is simply not true. Angie did obtain a protection order against Shannon (in which the issue of Shannon stalking or driving by the hoe where Angie was staying was confirmed by a third person, Shirley Singer, T. 296) which remained in effect after a hearing, but there is no evidence of "various" protection orders that were dismissed. And she did file a protection order against Mr. Hansen (in 2001) and Mr. Koble, but those orders were continued after a hearing and therefore must have had a basis of fact. T. 435. Moreover, the district court implies that only Angie was obtaining protection orders. It is undisputed that Angie was the not only one obtaining protection orders; Shannon got one against Angie and Shannon's parents (who were estranged from Shannon for two full years while he was with Angie) obtained a protection order as well which was dismissed. T. 236. Dillon also obtained a protection order against Angie in July 2011, which was also dismissed. Doc. 217 Parenting Investigator Report at 33. Moreover, it is also undisputed that the protection orders relating to Shannon and the ones relating to her prior boyfriends over an 18 year period were not terminated but stayed in effect after a hearing on the merits by a court. T. 435. And although Angie did not file a protection order against Mr. Opdahl, police reports indicated a factual basis for Angie's allegation relating to Mr. Opdahl regarding a 2006 incident. T. 235; Doc. 217 Parenting Investigator Report at 8. The district court totally ignored this contrary evidence.
¶52 "Throughout [Angie's] relationships with adult males, she has established a history of terminating relationships after approximately two years, and alleging domestic violence and alcohol abuse on the part of her former partners." Page 3, App. 136.
Although Angie has dated around 5 men over an 18 year period, her own testimony clearly indicated that the problems that occurred with these individuals were in fact true given the fact that a court, after a hearing, issued either a restraining or protection order. But the fact that Angie had problems with some of the men she dated in the past does not justify awarding the child to Shannon and is not in any way tied by the district court to a detriment to the child.
¶53 "[Angie] has also engaged in patterns of verbal abuse towards her male partners when they fail to meet [Angie's] expectations." Page 3, App. 136.
The only evidence supporting this conclusion (that Angie was verbally abusive to her prior partners) is the hearsay testimony of Shannon which was not allowed and hearsay evidence in the parenting investigator's report. None of these individuals testified.
¶54 "More recently and in the current marriage of the parties, [Angie] has routinely engaged in profane verbal abuse of [Shannon] and has extended the same to her adult son." Page 3, App. 136.
Angie contests this assertion, and the twin daughters' testimony supports her position that it was Shannon who is the one who has a pattern of verbal abuse, not Angie. Indeed, the girls testified (and previously reported to counselors and the parenting investigator) that Shannon has abused them both verbally and physically, had stuck and hit the child at issue, and has been the one abusing Angie. M.H. T. 267, 268, 269-270, 273; LH 283, 284, 286-287, 290, 291; Doc. 217 Parenting Investigator Report at 21. The girls provided consistent information relating to Shannon's abuse to counselors, the parenting investigator, and to the district court. As soon as some of the counselors asserted that the girls had been coached regarding the allegation that Shannon had not taken proper care of the child when Angie was arrested and away from the home for a few days, they were no longer believed by the parenting investigator or the court. Doc. 217 Parenting Investigator Report at 17. The district court refused to consider properly the contrary evidence that Shannon had been abusive to Angie, the girls, or the child in question, finding Angie and the girls not credible.
¶55 "In [Angie's] current relationship with Shannon Dieterle, [Angie was convicted of simple assault on June 15, 2012, in the District Court, Sheridan County, North Dakota. That conviction arose when [Angie] struck [Shannon] and in addition thereto bit [Shannon] upon the upper chest area while [Angie] was in a fit of anger and [Shannon] was attempting to restrain her." Page 3, App. 136.
In regards to this incident, the district court totally ignored Angie's testimony and the testimony of the only non-participant witnesses, Angie's twin daughters (who are 12 at the time of the trial, not 13). Angie T. 293-296; MH T. 270-271; LH 291. In addition, the fact of the conviction should be considered with the fact that the police and prosecutor ignored Angie and the twins statements and charged only Angie; had both persons been charged, the truth would have come out. Shannon states in his testimony that he always just walks away, and yet on this particular incident he claims that he was restraining Angie when he was bit in the chest. Even the parenting investigator considered a bite to the chest as usually indicative of a defensive act. Doc. 217 Parenting Investigator Report at 35. The lower court received evidence of domestic violence by the father directed at the mother and the young child, but dismissed such evidence as "not credible" despite the consistency in the testimony of all three individuals as well as parenting investigator assertion that the bite marks found on Shannon's chest were defensive in nature.
¶56 Because the police noticed teeth marks on Shannon's chest (which, by the way, were deemed "defensive" by the parenting investigator), Angie was arrested for domestic violence assault; despite bruising on Angie that appeared after the police left, Shannon was never charged. Ironically, because of these "defensive" teeth marks, the mother was arrested and charged for domestic violence, but the father was not; although there were witnesses to the bruising of the mother (as well as the twins' own testimony that their step-father was beating up their mother). Angie was convicted of the domestic violence. The father was never charged.
The parenting investigator's stated in her report that the teeth marks found on the father were most probably defensive and as such the father was the perpetrator of the domestic violence, and that the bruising of the mother did not show up at the time of the mother's arrest; the district court ignored the testimony of the mother (concluding that the mother was not credible based on a the court's improper finding of pattern of the mother of domestic violence on her male partners) and the twins and did not apply the presumption of domestic violence against the father.
¶57 Issue 2: The district erred in awarding primarily residential responsibility to Shannon.
¶58 The two-year-old child has lived with her mother her entire life, including throughout the divorce process and interim order. The child has been with the mother since the child was born and the district court made no findings that the care of the mother was in any way negative to the child at issue. Given the fact that there was no evidence that Angie's care of the child was in any way deficient and the fact that the district court did not question the care of the child by the mother, the child should remain with the mother.
¶59 The district court's decision to award primarily residential responsibility to Shannon is clearly erroneous. The mother is able to devote full-time to the child while the father is absent from the home for fifteen hours on days he works; the mother lives on the parties' ranch and is able to devote full-time to the child, whereas the father works twelve-hour swing shifts (either 6 am to 6 pm or the converse) at a mine and given drive time puts in up to fifteen hours a day on days he is working; although the district court has opined that the child would be with the mother whenever the father is at work, such a parenting schedule has not been employed or initiated, leaving the child with third parties while the father is at work or sleeping due to his lengthy shift schedule. Taking the child out of its normal surroundings and away from her mother and two step-sisters and subjecting the child to a new and unsettling environment will be and already has been detrimental on the child.
¶60 As mentioned in Issue 1, the district court really only applied two of the thirteen factors. We are aware of the heavy burden in showing that the district court's decision is clearly erroneous but believe such a conclusion should be reached in this case:
A court's award of primary residential responsibility is a finding of fact, and this Court will not reverse an award unless it is clearly erroneous. [Citation omitted.]. A finding of fact is clearly erroneous if it is induced by an erroneous view of the law, if no evidence exists to support it, or, although there is some evidence to support it, on the entire record, we are left with a definite and firm conviction a mistake has been made. [Citation omitted.].
[¶8] In applying the clearly erroneous standard, we will not reweigh evidence, reassess witness credibility, retry a custody case, or substitute our judgment for the trial court's decision merely because this Court may have reached a different result. [Citation omitted.] A choice between two permissible views of the weight of the evidence is not clearly erroneous. [Citation omitted.] "[O]ur deferential review is especially applicable for a difficult primary residential responsibility decision involving two fit parents." [Citation omitted.]
Hammeren v. Hammeren, 2012 ND 225 ¶¶ 7-8, ___ N.W.2d ___. As described above, many of the conclusions reached by the district court are not supported by the evidence and indeed some of the conclusions are contrary to undisputed evidence.
¶61 Issue 3: The district court has improperly delegated its decision as to the issuance and content of the parenting plan to a parenting coordinator.
¶62 Instead of issuing a parenting plan, the district court delegated its decision as to the contents of the parenting plan to a parenting coordinator. The district court ordered the parenting coordinator to "develop" a parenting plan and instructed the parenting coordinator to devise a plan that accounts for the needs of the child while Shannon is at work and and to allow Angie to "provide child care for B.D. when Shannon is so employed." Doc. No. 256, App. 143. Angie understandably interprets this as allowing her to provide day care for the child when Shannon is at work. However, the parenting coordinator's parenting plan fails to allow Angie to have the child whenever Shannon is at work.
¶63 Based on the language of the Order Appointing Parenting Coordinator, the parenting coordinator and Angie interpreted the plan as being adopted by the Court through the Court's direction for the parenting coordinator to develop the plan and file it with the Court:
IT IS SPECIFICALLY THE ORDER OF THE COURT that a parenting coordinator shall:
1. Develop a parenting plan which addresses and makes provision for the needs of the minor child while [Shannon] is engaged in his employment, and provides reasonable opportunity for [Angie] to provide child care for B.D. when [Shannon] is so employed.
2. That the parenting time of [Angie] with the minor child shall be structured so as to allow the minor child to share time with her sisters when they are not devoted to school activities.
3. That the parenting coordinator shall identify appropriate parent training programs for each [parent] to successfully complete, with said parent education and training designed to enhance the capacity of each [parent] to best meet the needs of the minor child B.D.
4. That the parenting coordinator shall also emphasize the each [parent] shall refrain from alcohol usage when they have parenting responsibility for the minor child B.D.
IT IS THE REQUEST OF THE COURT that the parenting coordinator file with the Clerk of Court a parenting plan as soon as the same is available, but not later than September 1, 2012. Periodic reports by the parenting coordinator may be made to the Court at the discretion of the parenting coordinator.
There is no indication in the district court's Order that the Court will review or take any further action on the parenting plan and that it will be in effect upon its filing. Shannon, however, decided that the parenting plan was not explicitly adopted by the Court and does not consider it necessary to abide by the plan.(1)
¶64 The opposing side and the parenting coordinator initially interpreted the district court's decision so as to allow the father to retain the child even while at work; a request for clarification was made in which the district court issued an addendum stating that the district court had indeed wanted the child to be with the mother while the father was at work:
Parenting Coordinator Ashley [sic] Mahoney has corresponded with the court inquiring whether it was the intent of the Court that the minor child of the parties should receive parenting time by Angela Dieterle when the Plaintiff Shannon Dieterle is unavailable due to employment obligations.
It is the intent of the Court that Angela Dieterle be granted first opportunity to provide parenting time for the minor child when the Plaintiff is unable to do so. Should the Defendant be unable to or unavailable, Plaintiff shall then have the discretion to employ child care as he deems appropriate.
Doc. No. 266, App. 176. The parenting coordinator failed to apply that clarification to her plan.(2)
¶65 The parenting coordinator, by developing the parenting plan and then making decisions interpreting that plan, has with the court's permission usurped the role and authority of the district court. Once a district court has made its own decision as to the content of the parenting plan, it is appropriate for the parenting coordinator to apply the plan, interpret it, and make rulings on the application of the plan as long as the final resting point for any conflict or disagreement remains with the district court.
¶66 Section 14-09-2-02 authorizes the district court to appoint a parenting coordinator "to assist the parties in resolving issues or disputes related to parenting time" but does not determine what role must be left to the courts and what role can be delegated to the parenting coordinator. The specific role of parenting coordinators is delineated in Rule 8.11 of the Rules of Court:
(1) Inform the parties of the role of a parenting coordinator;
(2) Monitor implementation of a voluntary or court-ordered parenting plan or parenting schedule as requested by the families or the court;
(3) Facilitate the resolution of disputes regarding the implementation of the parenting plan, the schedule, or parenting time issues provided such resolution does not involve a substantive change to the court's order;
(4) Recommend strategies for implementing the parenting plan or resolving other parenting issues that may be impacting the parenting plan;
(5) Assist the parties in developing communication and cooperation for the purpose of effective co-parenting of the children, including helping the parents find resources to develop effective communication skills; and
(6) Document the services provided and record agreements reached.
We assert that Rule 8.11 does not provide or envision a parenting coordinator developing an initial parenting plan or choosing (when the parties have presented opposing parenting plans to the court for consideration) what aspects of a parenting plan should be adopted or implemented. In regards to North Dakota case law, it is an open question whether a parenting coordinator can be delegated the power to draft the initial parenting plan. Parenting coordinators are mentioned in four North Dakota decisions, only of of which addresses the issue of improper delegation of judicial authority. In Wolt v. Wolt, 803 N.W.2d 534, 2011 ND 170 ¶ 40, the Court stated the following:
[¶ 40] The district court's visitation award also included the following provision: "When the counselors make a recommendation to the Court for more and less restrictive visitation, the Court will consider a new and increased visitation schedule." On appeal, Steve Wolt argues this provision is an improper delegation improper delegation of the court's authority to unnamed counselors to decide when a change in circumstances occurs. We, however, construe this provision as simply permitting the counselors to make recommendations to the district court, which the court would consider in any future visitation decision. We do not construe this provision as placing an additional limitation on Steve Wolt's access to the court in seeking a change in the visitation schedule nor as an improper delegation.
In the Wolt case the district court merely that the district court "will consider a new and increased visitation schedule" and in no way relinquished its role in deciding the case and any aspects relating to parenting time.
¶67 Other states have concluded that it is improper to delegate such roles to a parenting coordinator or other third persons. A recent review of this aspect of the law is found in a recent Iowa decision:
It is well established that the district court is the only entity that can modify a custody or visitation order, subject to the review of the appellate courts. In re Marriage of Brown, 778 N.W.2d 47, 54 (Iowa Ct.App.2009); see also Iowa Code § 598.41 (providing the factors the court should considering in awarding custody and visitation rights). This obligation to modify a decree cannot be delegated to any person or entity because that person or entity has no jurisdiction to render such a decision.FN3 The legislature has granted to *531 the court the responsibility to make an impartial and independent determination as to what is in the best interests of the child, and this decision cannot be controlled by the agreement or stipulation of the parties. See Walters v. Walters, 12 Neb.App. 340, 673 N.W.2d 585, 592 (2004). While the district court could seek and consider the therapist's recommendations only the district court could modify the decree after the parties had the the right to be heard.
FN3. The following states agree the court may not delegate its judicial power to determine visitation or custody arrangements to the parties or a third party: Pratt v. Pratt, 56 So.3d 638, 644 (Ala.Civ.App.2010) ("We also reiterate that [t]he trial court is entrusted to balance the rights of the parents with the child's best interests to fashion a visitation award that is tailored to the specific facts and circumstances of the individual case. That judicial function may not be delegated to a third party." (internal citations omitted)); In re Marriage of Matthews, 101 Cal.App.3d 811, 161 Cal.Rptr. 879, 882 (1980) (holding as invalid the provision in the court order authorizing a third party to alter the visitation scheduled in any way she deemed reasonable and necessary); Larocka v. Larocka, 43 So.3d 911, 91213 (Fla.Dist.Ct.App.2010) (holding it is the responsibility of the court to establish the visitation schedule between the mother and child and may not delegate that responsibility to a counselor); In re Paternity of A.R.R., 634 N.E.2d 786, 789 (Ind.Ct.App.1994) (finding the court impermissibly endowed an executive agency with the judicial power to control the frequency of the visitation); Meyr v. Meyr, 195 Md.App. 524, 7 A.3d 125, 138 (Md.Ct.Spec.App.2010) ("[A] court may not delegate to other individuals decisions regarding child visitation and custody."); In re Marriage of Young, 370 N.W.2d 57, 6566 (Minn.Ct.App.1985) (holding that the court can rely on an expert's opinion, but the court must make the ultimate decision on visitation rights); Walters v. Walters, 12 Neb.App. 340, 673 N.W.2d 585, 592 (2004) ("[T]he courts have held that the authority to determine the custody and visitation of a minor child cannot be delegated to a third party, because it is a judicial function"); In re Marriage of Kilpatrick, 198 P.3d 406, 410 (Okla.Civ.App.2008) (striking the portion of the court's order that provided the parenting coordinator's recommendations should be observed as orders of the court because it constituted an improper delegation of judicial power and is contrary to the parent's due process rights); Chiappone v. Chiappone, 984 A.2d 32, 39 (R.I.2009) ( "The issues of custody and visitation fall squarely within the realm of judicial responsibility and may not be delegated to a therapist, no matter how qualified or well-intentioned the therapist may be.").
In re Marriage of Stephens, 810 N.W.2d 523, 830-831 (Iowa App.,2012). Cases involving only parenting coordinators include the following (in addition to the Kilpatrick case listed above): Dilbeck v. Dilbeck, 245 P.3d 630, 2010 OK CIV APP 142; Meyr v. Meyr, 195 Md.App. 524, 549, 7 A.3d 125, 140 (2010)(no violation because the trial court resolved the primary issues relating to custody and visitation, and its delegation of authority to Ms. Meta involved merely the coordination of family reunification therapy); Telek v. Bucher, Not Reported in S.W.3d, 2010 WL 1253473 page 4 (Ky.App. 2010)(in a high conflict case such as this, the parenting coordinator merely assists the court by ensuring that the court's mandates are being carried out in a manner that serves the best interests of the child); Edwards v. Rothschild, 60 A.D.3d 675, 678, 875 N.Y.S.2d 155, 159 (N.Y.A.D. 2 Dept. 2009)(appointment of parenting coordinator constituted an improper delegation of court's authority to determine issues relating to visitation), citing Matter of Held v. Gomez, 35 A.D.3d 608, 824 N.Y.S.2d 741 and Matter of Grisanti v. Grisanti, 4 A.D.3d 471, 474475, 772 N.Y.S.2d 700; Yates v. Yates, 963 A.2d 535, 540, 2008 PA Super 296 (not an improper delegation of authority where the trial court empowered the parenting coordinator specifically to resolve only ancillary custody disputes, such as determining temporary variances in the custody schedule, exchanging information and communication, and coordinating Ashley's recreational and extracurricular activities).
¶68 North Dakota has discussed improper delegation of authority in other spheres. In re M.B., 2006 ND 19 ¶ 12, 709 N.W.2d 11 (allowing attorneys to draft proposed findings not an improper delegation of referees authority because once singed by the referee they became the court's findings);
Morton County Social Service Bd. v. Schumacher, 2004 ND 31 ¶¶ 30-31, 674 N.W.2d 505 (district court referring to the custody investigator's report not an improper delegation of judicial authority because the court did not make the report the conclusive basis for its decision); Cass County Elec. Co-op., Inc. v. Northern States Power Co., 518 N.W.2d 216, 221 (N.D. 1994)(application of tariffs by PSC not an unconstitutional delegation of legislative authority).
¶69 It is our position that when the district court provides little to no direction or details to a parenting coordinator and the parties disagree as to the content of an initial parenting plan, then the issue should go to the court and not be delegated to the parenting coordinator. At the very least, it is the court that should be providing the major elements of the parenting time (number of days per month, overnights, supervised, length of summer parenting time, etc.).
¶70 Issue 4: The district court, in awarding property, has made numerous and obvious mistakes, and failed to take into account the parties differences in income, Shannon's insistence that Angie quit her job, and both parties testimony that Angie should be allowed to remain on the ranch.
¶71 The law relating to a fair and equitable division of property is as follows:
In Crandall v. Crandall, 2011 ND 136, ¶¶ 17-19, 799 N.W.2d 388 (internal quotation marks and case citations omitted), we explained the principles to be considered in distributing marital property and our standard for reviewing marital property distributions:
Under N.D.C.C. § 14-05-24(1), a district court must make an equitable division of the parties' marital estate in a divorce action. In making an equitable distribution of marital property, a court must consider all of the parties' assets. After including all of the parties' marital assets in the marital estate, the court must consider the following factors emanating from Ruff v. Ruff, 78 N.D. 775,52 N.W.2d 107 (1952), and Fischer v. Fischer, 139 N.W.2d 845 (N.D. 1966), in its distribution of the parties' assets:
. . . the respective ages of the parties, their earning ability, the duration of the marriage and conduct of the parties during the marriage, their station in life, the circumstances and necessities of each, their health and physical condition, their financial circumstances as shown by the property owned at the time, its value at the time, its income-producing capacity, if any, whether accumulated before or after the marriage, and such other matters as may be material. The trial court is not required to make specific findings, but it must specify a rationale for its determination.
A property division need not be equal to be equitable, but a substantial disparity must be explained. Generally, long-term marriage[s] support an equal distribution of [marital] property. However, financial misconduct and dissipation of assets are grounds for an unequal property distribution.
A district court's property distribution is treated as a finding of fact, and we will not reverse [the distribution] unless the district court's findings are clearly erroneous. A finding of fact is clearly erroneous if it is induced by an erroneous view of the law, if there is no evidence to support it, or if, although there is some evidence to support it, on the entire evidence the reviewing court is left with a definite and firm conviction a mistake has been made. A trial court's choice between two permissible views of the weight of the evidence is not clearly erroneous, and simply because we may have viewed the evidence differently does not entitle us to reverse the trial court. On appeal, we do not reweigh conflicts in the evidence, and we give due regard to the trial court's opportunity to judge the credibility of the witnesses.
Kosobud v. Kosobud, 2012 ND 122, ¶6, 817 N.W.2d 384.
¶72 As is clear from the district court's decision, the district court failed to address the factors that must be addressed: the respective ages of the parties, their earning ability, the duration of the marriage and conduct of the parties during the marriage, their station in life, the circumstances and necessities of each, their health and physical condition, their financial circumstances as shown by the property owned at the time, its value at the time, its income-producing capacity, if any, whether accumulated before or after the marriage, and such other matters as may be material.
¶73 The district court, instead of providing residential responsibility to the mother and dividing the property in a way to allow her to be able to stay on the ranch, instead has awarded the child to the father and ordered the ranch to be sold; both parties testified that the mother should be allowed to remain on the ranch and be allowed an opportunity to keep the ranch:
¶74 Mr. Pagel asking questions, Shannon answering:
24 Q. I am going to show you an exhibit later on, but do
25 you have a proposal as to who should get the ranch?
1 A. I propose that she should get the ranch.
2 Q. And she has horses, things of that nature, on the
4 A. Yes.
5 Q. And she can use the ranch in that capacity if she
6 wants to?
7 A. Yes.
8 Q. Is that your understanding of what she wants?
9 A. As far as I know.
10 Q. And the ranch, so we are clear, was purchased by you
11 both during the marriage?
12 A. Yes.
. . .
10 Q. So you would be fine with her paying you half of that
12 A. Yes.
13 Q. What if she can't pay it?
14 A. I propose that the ranch get put up for sale or
¶75 Mr. Boughey asking questions, Shannon answering:
24 Q. You mentioned a lot about stability. You are aware
25 that Angie wants to stay at the ranch?
1 A. Yes.
2 Q. And stay there permanently and let the girls go
3 through high school and the whole bit?
4 A. That's what she has reported.
9 Q. All right. What I am saying is, it is the most
10 stable situation for B. She is presently living with her mom
11 at the ranch, correct?
12 A. Yes.
13 Q. And she is used to that location?
14 A. Correct.
¶76 Mr. Boughey asking questions, Angie answering:
11 Q. All right. What is your plan for the future? If the
12 Court awards you custody, where do you plan on living?
13 A. In our current ranch until they bury me there, and
14 the great grandkids take over and keep running the horse
T. 95-96, 125, 247-248, 422. In addition, if Angie is eventually provided primary residential responsibility, she would most likely be able to afford to remain on the ranch (given a fair and equitable property division and child support from Shannon).
¶77 The division of property, when taken in light of the comparative positions of the parties, is clearly inappropriate. Shannon makes $70,000 to $75,000 a year and has substantial benefits; Angie makes less than $15,000 a year. T. 12-13, 470, 480. At the time of the marriage, Angie was working as a freight broker; she left her job at the insistence of Shannon when they discussed having children and the Angie should be a stay-at-home mom. T. 363, 374-375, 384. Angie also mentioned the desire to complete her ag degree. T. 418. Although the district court did award spousal support, it was for a very limited time and just for the transition from being forced by the district court off the ranch. Memorandum Opinion -- Doc. No. 255, page 8, App. 141.
¶78 The inequalities of the division of property are clear just from the district court's final numbers: Shannon received a net amount of $112,423.31 and Angie received a net amount of $24,184.04. Page 8, App. 141.
¶79 The district court, in awarding property, has made numerous and obvious mistakes, including several property listing that were clearly awarded to the wrong party (according to the testimony of both parties at trial); moreover, some items have been awarded to both parties and other items were not awarded at all. Mr. Boughey attempted to get the district court to review its decision and correct these obvious errors before entry of judgment by a letter dated July 27, 2012 and attachments thereto (Doc. Nos. 260-263(3)
) and opposing counsel subsequently responded the same day (Doc. Nos. 258-259). No action was taken.
¶80 The mistakes made in the property division in the district court's memorandum opinion are substantial and in some cases obvious.
¶81 Items Awarded to Both Parties Item 24 is listed going to both parties (lines 2 and 14); Item 103 is listed as going to both parties (lines 5 and 17); Item 51 going to Shannon at page 7 but a portion of Item 51 going to Angie at page 8. App. 140.
¶82 Items Requested by Angie Incorrectly Listed Items 15-20 and 39-40, 34, 36, 44, 45, 120, relate to the horse operation or are personal items (Item 16 being movies and Item 19 being Angie's library). App. 140.
¶83 Items Not Awarded Items 1, 6, 21, 22, 25, 54-57, 62, 65-66, 70-71, 73, and 74 are not distributed. I will note these items by category. App. 140.
¶84 Items Not Awarded That Have Been Sold
Item 122 had been sold and is attributed to Angie as an asset received. Items 1, 21, 22, 25, 73, 122 are all items listed as being sold during the marriage and not attributed as an asset in the property division. Item 122 is treated differently than the others. App. 140.
¶85 Items Not Distributed and Not Contained Elsewhere
Items 6, 41, 70-71, and 74 are not distributed or attributed to the parties. App. 140.
¶86 Items Not Distributed that Are Presumably Contained Elsewhere
Items 44, second 50, 57, 62, 65-66, 70-71, and 74 are not distributed. App. 140.
¶87 Issue 5: The district court, in awarding spousal support, failed to take into account Angie quitting her job at the insistence of Shannon; moreover, the district court should have awarded Angie substantially more in spousal support given the difference in income of the parties and the stated desire of both parties for Angie to be able to stay on the ranch.
¶88 We have already discussed above that the amount of spousal support awarded was insufficient given the difference in earning power of the parties, and most certainly insufficient to allow Angie to remain on the ranch, something that both parties stated should happen. At the very least, Angie should have been provided a sufficient property distribution and spousal support to allow her to remain at the ranch with her twin daughters (though also, with B., the child at issue).
¶89 Issue 6: In the event of a remand, the district court should not continue on the case due to the district court's demonstrated bias against Angie as shown by the district court's explicitly declaring Angie to have no credibility, ignoring any countervailing evidence (even that submitted by the custody investigator), issuing factual findings that are absolutely incorrect or not supported by the evidence received, and failing to look at the evidence fairly and objectively.
¶90 The district court's distain for Angie and refusal to believe anything she says comes out clear in the district court's decision. By concluding that anything Angie said is to be ignored because her credibility has been destroyed, the district court has clearly indicated a bias that should preclude any further action on this matter.
The district court opines that Angie abused the legal system by getting protection orders while totally ignoring the undisputed facts that many of these orders were not temporary orders that had been dismissed but had been issued and found to have a basis following a hearing, including one of the protection orders against Shannon himself.
¶91 The district court implies that Angie has repeatedly and consistently used protection orders and the court process inappropriately, and yet the orders she obtained were obtained over 18 years and as mentioned above, many of the orders were issued following a hearing and therefore a court had found a basis of fact to the continuation of those orders.
¶92 The district court implies that ONLY Angie has repeatedly and consistently used protection orders and the court process inappropriately, yet fails entirely to even mention or discuss the fact that Shannon obtained a restraining order against Angie, or that the first protection order issued relating to this couple was against Angie by Shannon's parents (the same parents who refused to have anything to do with Shannon for two full years), or that Angie did obtain a protection order against Shannon that was continued after a full hearing.
¶93 The law relating to bias by a court is as follows:
[¶ 9] The rules of judicial conduct provide that a judge is required to avoid impropriety and the appearance of impropriety in all the judge's activities. Farm Credit Bank v. Brakke, 512 N.W.2d 718, 720 (N.D.1994). " 'The law presumes a judge is unbiased and not prejudiced.' " Id. (citation omitted). We have said "[a] ruling adverse to a party in the same or prior proceeding does not render a judge biased so as to require disqualification." Id. The test for the appearance of impartiality is one of reasonableness and recusal is not required in response to spurious or vague charges of impartiality. Id. at 721.
Woodward v. Woodward, 2010 ND 143, ¶9, 785 N.W.2d 902.
¶94 The failing to interpretation of the facts fairly, ignoring any contrary evidence (even undisputed evidence) that show the some of the district court's conclusions to be unjustified and totally without merit, and deciding a child's fate based not on the child's best interest but based on a dislike for the mother and belief that anything the mother says is false evidence demonstrates an inappropriate bias that requires that the same district court judge not be allowed to proceed on any remand. This Court has indicated the importance of at least the appearance of a fair hearing by the district court judges:
[¶ 21] Custody decisions are difficult. In reviewing custody disputes, our duty is to ensure district court judges have followed the legislative command of weighing the best interests of the child factors under N.D.C.C. § 14-09-06.2. When a trial judge ignores the legislatively imposed best interest factors, writes perfunctory findings that rely on evidence not in the record, or when we cannot determine the basis for a trial court's decision, we will reverse and send a case back for further analysis and more detailed findings. [Citation omitted.] When a judge evidences bias by using his position as a district court judge to ridicule the parents and children, that judge brings disrespect *21 to the judiciary and destroys public confidence in our justice system. [Citation omitted.]
Molitor v. Molitor, 2006 ND 163 ¶ 21, 718 N.W.2d 13 (Kapsner, J. dissenting,
with Sandstrom, J.).
¶96 The decision of the district court should be reversed and remanded to a different district court judge.
¶97 VIII. CERTIFICATE OF COMPLIANCE ON WORD COUNT
¶98 I hereby certify that this brief complies with FRAP 32(a)(7)(A); the word count is 10,479 (11,236 less caption table citations 757 = 10,479).
¶99 IX. CERTIFICATE OF WORD PROCESSING PROGRAM
¶100 The word-processing program is Microsoft Office Word 2003.
|Dated this 12th day of December, 2011.|
|Lynn M. Boughey (04046)|
|Attorney for Angela Dieterle|
|P.O. Box 836|
|Bismarck, ND 58502-0836(701) 751-1485|
In order to deal with the issues on appeal relating to the parenting plan, counsel for Angie will make a motion to supplement the record to include the the parenting plan that was sent to the district court (instead of the clerk of court as ordered by the judge) that has not been filed (but a copy was sent to counsel -- Doc. No. 283, App. 197). And because the parenting time developed by the parenting coordinator ends on December 31, 2012 and the coordinator awaits court direction as to how to proceed, counsel for Angie will also make a motion to remand the issue of parenting time during the appeal so that the parenting coordinator can extend the parenting plan through the end of May.
2. Despite this clarification, as shown in the parenting plan, Angie has not been allowed to provide day care the entire time while the Shannon is at work but instead is provided a few hours in the day and when Shannon is working at night she does not automatically get the child. Doc. No. 283, App. 197. As noted in footnote 1, counsel will made a motion to request that this document, which was sent to the court instead of the clerk of court prior to the appeal, be added to the record.
3. The exhibit at issue, Exhibit 68, had not been filed and despite numerous telephone calls to the clerk and court reporter, the Exhibit could not be found. As such Mr. Boughey had to provide the Court with his copy of of the Property and Debt listing; following appeal, the Exhibits were found by the court reporter in the district court's desk.