IN THE SUPREME COURT
STATE OF NORTH DAKOTA
Supreme Court No. 20120329
Sheridan County Case No. 42-2011-DM-00021
|Shannon R. Dieterle,||)|
|Plaintiff and Appellee,||)||BRIEF OF|
|Angela L. Dieterle,||)|
|Defendant and Appellant.||)|
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
|II. Certificate of Compliance Word Count|
|III. Certificate of Word Processing Program|
¶1 Appellee asserts at page 3 and pages 4-5 that changes to the interim orders were necessary due to Angie's failure to comply with the orders. Appellee's Brief at 3, 5-6. This is untrue Angie attempted to work with Shannon (who failed to show up for some visits) on the unspecified schedule and there were problems in communication through Angie's prior attorney, Mike McIntee regarding some requests, but neither party could agree to anything and many problems developed. 4-5-11 Transcript, 5, 10, 15-16. 72. The Court took a break and had the parties come up with a schedule. T. 44-45. Once a specific schedule was set out by the parties (during a break in the hearing) both parties followed it. T. 75 line 8, 406.
¶2 Shannon asserts at page 4 that he co-parented and assisted in raising the children. This is contested Angie AND her twin daughters testified that Shannon did very little to assist and was abusive. T. 271, 276, 288, 384, 392-393
¶3 Shannon asserts at page 4 that Angela had a significant history of being involved with various men. This is contested Angie over 25 years had dated a total of five men. T. 354-363.
¶4 Shannon asserts at page 5 that Angie made a false allegation against Shannon relating to domestic violence. This contested Angie claims she was the one beaten up and the twins' testimony supports this because of the defensive teeth marks on Shannon's chest, Angie was arrested the police and prosecutor ignored Angie's testimony and ignored evidence of bruising that appeared after the altercation; indeed both police reports include a reference to the red marks but only Shannon was charged. T. 270-271, 291-292, 393-396, Parenting Investigator's Report page 32, Doc. No. 217, App. 57.
¶5 Shannon asserts at page 6 that Angie improperly reported Shannon for a violation of the protection order on February 10, 2012. Mr. Pagel gives the wrong date (it was the 11th) and fails to mention that Shannon did more than show up at the rodeo according to a third person who testified Shannon approached Angie and came right up to her (within 7-8 feet) and stared at her and failed to leave and began following her while the person accompanying her was in the bathroom it is at this point that she notified police. T. 343-346.
¶6 Shannon asserts at page 8 that it is not necessary for the court to make separate findings and discuss with specificity each and every one of the best interest factors. And yet the case quoted by Shannon immediately after making this statement provides that the court "must consider and evaluate the factors [and that] the court's findings should be stated with sufficient specificity so that we can understand the factual basis for its decision."
¶7 Shannon basically argues that the court considered and evaluated the evidence, but not on paper or in its decision, but in its head! He further attempts to correct the court's failure to address the best interest factors by listing evidence received, thus assuming that the Court considered such evidence since it was received. There is simply and plainly insufficient discussion of the factors that would allow this Court to divine what the Court was thinking. Worse yet, what little is provided by the lower court demonstrates a decision not to believe anything Angie (or any of her witnesses provided as corroboration) even when (as shown in the main brief) the assumptions and factual conclusions are generally not supported by the evidence received, and are contested by not only Angie's testimony but the testimony of her witnesses.
¶8 This Court is indeed, to quote the case quoted by Shannon at page 8, "left to speculate as to whether factors were or were not properly considered, the findings and determination of the trial court are not clearly erroneous." Appellees Brief at page 8
¶9 On pages 11-12 the Appellee lists the best interest factors and blithely and without any reference to where the lower court actually addresses the factor or any reference whatsoever to the record. The Appellee simply makes a statement following each factor that there was some evidence, but provides no reference to any exhibits or transcript pages. Appellee then asserts, without foundation, that 7 of the 12 (there are actually 13 factors) were addressed by the lower court. But as shown from a reading of the court's decision, in reality only two factors were discussed and evaluated.
¶10 And although domestic violence is discussed in the lower court's decision, the court fails to make specific findings relating to the contested evidence or if any presumption applied.
¶11 Angie does go through each of the best interest factors in her brief and actually provides reference to the record; appellee fails to provide this Court with any such indications of support in the records as to the specific factors, just as the lower court failed to properly address the factors.
¶12 Appellee at page 13 claims that "The "separation anxiety" was never in fact diagnosed," thereby impugning Angie's credibility yet again. Angie testified at the April 5, 2012 hearing that therapist Valerie Meyers had indeed diagnosed the child "with separation anxiety and adjustment disorder." T. 21. Mr. Pagel then asserts that Angie lied about this and refers to page 55 of the Appendix, the parenting coordinators report. This is a perfect example of twisting the facts and making false allegations once the facts are twisted. The custody investigator's report states that Val Meyer diagnosed "BD with adjustment disorder" and later discusses the option of having Shannon participate in "a joint sessions with BD and her father to discuss appropriate ways to deal with anxiety." App. 55 (emphasis added). Angie's testimony is NOT contradicted by the parenting report indeed, the report supports her testimony of her understanding from Val Meyers that the child was diagnosed with separation anxiety and adjustment disorder.
¶13 Angela does indeed asserts that "the evidence did indicate that Shannon had a drinking problem." Brief of Appellant, p. 17. Angie testified to Shannon's drinking to a point where he passed out and repeatedly threw up on himself. T. 378. Shannon admitted to this. T. 485. But Mr. Pagel at pages 13-14 blithely asserts that this too is another lie. It seems that the lower court entirely bought into Mr. Pagel's spurious and unsupported statements of "fact" and didn't properly consider the evidence instead deciding that anything Angie said is false.
¶14 Appellee admits at page 14 to its and the court's overreaching in regards to Angie receiving "various domestic violence orders" (plural) and then the court terminating the same (plural), admitting (finally) that only one such instance occurred and all other orders were kept in place following proper hearings.
¶15 Shannon states at page 15:
Angela makes the broad assertion that there was no evidence that her care was deficient and as such residential care should not have been granted to Shannon. Even if it were true . . . "
Interestingly, the Appellee provides absolutely no reference to any testimony or other evidence that this statement is not true. In other words, they concede the point that there is no evidence that her care of the child was in any was deficient.
¶16 The reality is that the lower court discussed to any extent that could be considered following the law only two factors, domestic violence (without making proper findings) and frustration of parenting time. Nothing more.
¶17 In regards to improper delegation of the parenting coordinator, the Appellee at pages 17 and 19 cites the statute and rule but fails to acknowledge that the statute does not allow the parenting coordinator to draft and adopt the parenting plan. The Appellee states that the parenting coordinator appointed by the court may "assist the parties in resolving issues or disputes related to parenting time" -- "[s]hall attempt to resolve a parenting time dispute by facilitating negotiations between the parties to promote settlement and, if it becomes apparent that the dispute cannot be resolved by an agreement of the parties, shall make a decision resolving the dispute." -- "Monitor implementation of a voluntary or court-ordered parenting plan or parenting schedule as requested by the families or the court" "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." Appellee's brief at pages 17, 18, 19. Nowhere in the recitation of the statute or the rule is there an indication that the parenting coordinator is vested with the authority to develop and adopt a parenting plan. Indeed, Rule 8.1 (3) seems to indicate that the parenting coordinator is supposed to implement an existing plan.
¶18 The cases cited by Angie demonstrate that the parenting coordinators role should be to make recommendations for the court's consideration and not assume the role of the court. The Appellee fails to discuss any of the cases on point and merely incorrectly asserts at 20 that one appears to be to stand for something other, despite the language in that case (that does support Angie's position) that "The trial court had resolved the primary issues relating to legal custody, physical custody, and visitation" and that " The parenting coordinator was empowered merely to resolve "ancillary" custody disputes, such as 'determining temporary variances in the custody schedule, exchanging information and communication, and coordinating [the daughter's] recreational and extracurricular activities.'" Appellee's Brief at page 20, quoting the Maryland decision at length.
¶19 Instead of adopting a plan, the lower court merely provided an overview of parenting time and directed the parties to develop a plan with the parenting coordinator by August 1, 2012. Memorandum decision at 4-5, App. 137-138. The parties were unable to agree, and instead of the court issuing a plan or adopting a plan, the parenting coordinator as instructed by the Court's Order Appointing Parenting Coordinator issued in conjunction with the Memorandum Opinion on July 12, 2012 developing the plan and implemented the plan:
"a parenting coordinator is essential for the development of a parenting plan"
"IT IS SPECIFICALLY THE ORDER OF THE COURT that a parenting coordinator shall:
1. Develop a parenting plan . . .
¶20 At Angie's request, the lower court has issued an Order, Doc. No. 395, App. 220, supplementing the record on appeal to include the email submission of the parenting plan to the court (it was never filed with the clerk of court) and the emails and exchange of documents between the court and the parenting coordinator no one of which were provided at the time to counsel. As such, counsel for Angie has filed in conjunction with this brief a Supplemental Appendix continuing the supplemented record. This record clearly shows that the parenting coordinator is the person who developed and then implemented the parenting plan. App. 221, 225, 246-248. In addition, it should be noted that Angie had submitted her own plan and had submitted objections to the plan developed by the coordinator. Doc. No. 310 and 316.
¶21 One last point must be made in regards to the parenting plan and Angie's assertion that Shannon "does not consider it necessary to abide by the plan (end of Para 63, Appellant's Brief) and whether Shannon considered it binding on him and.
Angela untruthfully states that Shannon "does not consider it necessary to abide by the plan". The truth is just the opposite. Shannon has been following the plan . .
Appellee's brief at page 19 (emphasis added). Counsel's statement is a bald lie or just another example of twisting the truth, making appear something is a lie, and providing a half-truth. Shannon asserted, when problems came up, that the lower court had not adopted the plan and therefore he did not have to abide by it. Instead of acknowledging the fact that Shannon ON THE RECORD claims the parenting plan has not been adopted by an order and that this is a defense for any motion to find Shannon in contempt ------ [Doc. 334 at 2-3, Mr. Pagel's words: "There is, quite simply, no order adopting the parenting plan . . ."] ------- Mr. Pagel claims the "truth is the opposite" and asserts that his client has been following the plan. And yet it is undisputed that Shannon refused to take the child to Angie on October 15, 2012, and he has not been taking the child to the WOW program and as such Angie had to make a motion motion to implement the plan Doc. 323 & 324 and that he be held in contempt of court. The motions are pending.
¶22 As to property issues, although the Court did note Shannon's substantial income App. 135, there is no finding in the opinion as to what Angie's income is her circumstances and necessities. Shannon merely asserts in his brief at page 22 that "Clearly the court was aware of the income and disparity in income" but this alone is insufficient. The Court is required to apply the Ruff-Fischer guidelines, and it did not. Shannon admits that the evidence showed that Angie, at best, receives income "is right around minimum wage." Appellee's Brief at page 23, with no reference to the record. Thus the substantial income disparity is a matter of record, and yet no findings or analysis under Ruff-Fischer occurred. And the award to Shannon is $112,423.31, and to Angie, $24,184.04. App. 141. Shannon's statement relating to what is supposedly in the record (at page 24) fails to provide any reference to the record!
¶23 It is undisputed that Angie's counsel tried to get the Judge to re-visit the obvious errors in the property division and instead of doing so the Court demanded a formal Rule 60 or Rule 59 motion. Doc. 261-263. Angie given her concerns about the child and requesting a stay to revert back to the terms of the interim order decided to appeal and not wait any further for the court to delay fixing the problems it created.
¶24 As to the ranch, it is correct that both parties proposed that Angela keep the ranch repeatedly T. 12-13, 41-42, 91-92, 363, 374-375, 384, 418, 470, 479, 480, and only once mentioned the issue of her being able to afford it T. 122-123.
¶25 As to the court's bias, we again assert that a blanket statement made by the lower court that the party is not credible, a complete rejection of all of her testimony and any corroborating testimony of other witness is an adequate demonstration of bias and constitutes sufficient basis to require a different judge on remand.
¶26 VIII. CERTIFICATE OF COMPLIANCE ON WORD COUNT
¶27 I hereby certify that this brief complies with FRAP 32(a)(7)(A); the word count is 2443 (argument only, not counting caption, table of contents, signature line, certificate of compliance).
¶28 IX. CERTIFICATE OF WORD PROCESSING PROGRAM
¶29 The word-processing program is Microsoft Office Word 2003.
Dated this 25th day of January, 2013.
|Lynn M. Boughey (04046)|
|Attorney for Angela Dieterle|
|P.O. Box 836|
|Bismarck, ND 58502-0836||(701) 751-1485|