IN THE SUPREME COURT
STATE OF NORTH DAKOTA
|Plaintiff-Appellant,||Supreme Court No. 20080012|
|vs.||Divide County No. 06-C-0055|
APPEAL FROM THE DIVIDE COUNTY DISTRICT COURT
NORTHWEST JUDICIAL DISTRICT
BRIEF OF PLAINTIFF-APPELLANT,
|Kevin J. Chapman|
|Chapman Law Office|
|417 First Ave. East|
|PO Box 1920|
|Williston, ND 58802-1920|
|Telephone: (701) 572-3966|
|FAX: (701) 572-9181|
|Attorney for the Appellant|
|ND Bar ID No. 05076|
TABLE OF CONTENTS
|Table of Authorities||2|
|Statement of the Issues||3|
|Statement of the Case||3|
|Statement of the Facts||3|
|I. The Trial Court's Findings of Fact and Ultimate Conclusions|
|Are Clearly Erroneous|
|Certificate of Compliance||24|
|Certificate of Service||25|
|Reprint of NDCC Section 14-09-06.2||26|
TABLE OF AUTHORITIES
|Berg v. Berg, 2002 ND 69, 642 NW2d 899, 901 (ND 2002)||12|
|Coons v. Coons, 2003 ND 115, 665 NW2d 60 (ND 2003)||19|
|Dalin v. Dalin, 512 NW2d 685, 689 (ND 1994)||13|
|Klein v. Larson, 2006 ND 236, 724 NW2d 565 (ND 2006)||12,13,21,22|
|Koble v. Koble, 2008 ND 11, 743 NW2d 797 (ND 2008)||12,13|
|McDowell v. McDowell, 2003 ND 174, 670 NW2d 876 (ND 2003)||13,14|
|N.D.C.C. Section 14-09-06.1||12|
|N.D.C.C. Section 14-09-06.2||13,16,17,18|
|West's Legal Thesaurus and Dictonary, (1985)||21|
STATEMENT OF THE ISSUES:
STATEMENT OF THE CASE:
This is an appeal from the District Court of Divide County, the Honorable Gerald Rustad presiding. The Appellant, Ryan Hanisch ("Ryan") is the Plaintiff in this action and Denise Osvold ("Denise") is the Appellee. This is an action involving the primary care, custody and control of the parties minor child.
The District Court awarded the primary care, custody and control of the minor child to Denise, despite her past suicide attempts and unstable past, and which was a reversal of the Interim Order entered in this case.
Ryan disputes the decision of the District Court and appeals to this Court, seeking a reversal and the primary care, custody and control of the minor child.
STATEMENT OF THE FACTS:
Ryan is the father, and Denise is the mother of the minor child at issue in this proceeding, a boy, who was born on [Redacted], 2006. (Ap. at 10). The parties were never married. Id. The parties and the child live in Crosby, North Dakota. Id. Initially, there was no custody order in place; informally, between the child's birth, [Redacted] and December 10, 2006, the child lived with Denise more than with Ryan. Id.
On Sunday, December 10, 2006, Denise attempted to commit suicide, and was hospitalized. Id. Because of this fact, and other facts, as itemized by Ryan in his "Affidavit in Support of Motion for Interim Order," Ryan filed a motion with the Court for immediate, ex parte custody of his son. (Ap. at 8)
On December 12, 2006, the Honorable Gerald Rustad signed an ex parte Interim Order, which granted Ryan's request for immediate, ex parte Interim Custody, and granted Denise visitation, every Tuesday and Thursday evenings from 3:00 pm - 7:00 pm and one weekend day each weekend from 10:00 am to 7:00 pm.(1) (Ap. at 13).
Trial of the case was November 7, 2007, almost 11 months after the Interim Order was issued in the case. (T. at 1).
Dr. Stephen Podrygula was called by Ryan to testify at the Trial.(2) (T. at 9). Dr. Podrygula testified that his main area of work is in clinical psychology, which is working with people with depression and other kinds of emotional disorders. (T. at 10). Dr. Podrygula reviewed Denise's mental health records. (T. at 11). The Dr. testified that Denise's records indicate that she "has struggled with a variety of mental health issues for a long time. Probably since early adolescence or early child hood. And among those issues have been depression. She has repeatedly been diagnosed by mental health experts with depression." (T. at 18). The Dr. noted that her recent medications are welbutrin, an antidepressant and coprogram, a tranquilizer, to treat anziety. (T. at 19-20).
Dr. Podrygula testified that based upon her medical records, Denise has had five separate hospitalizations, starting back in 1995. (T. at 20). Denise had two separate incidents in 1995, which appeared to involve depression and suicidality. Id. In March of 2001, she was civilly committed because she stabbed herself. She was admitted in Cheyenne, Wyoming for suicidal thoughts and drug overdose. (T. at 21). She was admitted in December of 2006 because of drug overdose and suicidal thinking, although she denied trying to kill herself on that occasion; she said she drank too much. Id.
Dr. Podrygula noted that alcohol abuse has been noted in the records to be a problem, although Denise doesn't see it as much of an issue. Id. The Dr. noted that she denied alcohol treatment in December of 2006. Id. Based upon the past hospitalizations, the Dr. noted that her hospitalization in December of 2006 involved a BAC of .15, so she was drinking when she overdosed on drugs; in Wyoming, in February of 2004, her BAC was .15, so she was drinking when she overdosed on drugs; in March of 2001, when she was civilly committed, her BAC was .27. (T. at 23-24).
As far as Denise's follow up with after-care, Dr. Podrugula noted that her follow up is "nil." (T. at 24). In the past, she generally declined referrals for alcohol and drug treatment; she hasn't taken medication for her mental health disorders, i.e. she takes the medications for awhile and then stops. Id. The Dr. did note that she has followed through with seeing a social worker, Ms. Larson, after her most recent episode in December of 2006, seeing Ms. Larson up through April of 2007, for a total of 10 visits. Id. The Dr. has concerns about her future stability. Id. at 28. The Dr. recommends that it would be prudent for her to be careful and continue to get care. Id. at 29.
The second witness at trial was Ms. Liz Larson.(3) (T. at 42). Mr. Nehring, counsel for Denise, was allowed to call this witness out of turn. Ms. Larson has a bachelor's degree from Minot State University in Social Work and a Master's Degree from Sacramento State University in California. (T. at 43).
Ms. Larson initially saw Denise on 11-21-06. (T. at 45). Denise came in for depression and anxiety. Id. When asked, she claimed that the therapy went "extremely well." Id. She had three goals for Denise, i.e. a) eliminate negative thoughts; b)control her emotions; and c) supportive therapy regarding custody issues. (T. at 46). Ms. Larson testified that Denise met her goals, so there was no need for further therapy. (T. at 47). Ms. Larson indicated that she had no more concerns about Denise; she admitted that she is not an expert in alcohol and drug treatment. (T. at 48).
On cross examination, Ms. Larson admitted that the last time she saw Denise was April 19, 2007. (T. at 50). However, she spoke to Denise the week before trial, preparing for trial. Id. On cross examination, it became unclear when she first saw Denise, because she testified that she did not see Denise until after the hospitalization in December of 2006.(4) (T. at 51-52). Ms. Larson's knowledge of Denise's past history with suicidal gestures, hospitalizations and commitments was not very good, as evidenced by her lack of knowledge of those issues, and her asking for copies of the records. (T. at 53-54). She claims to have discussed those issues with Denise, however. (T. at 54).
When the Judge asked her questions, she doesn't remember why Denise was hospitalized in December of 2006, but thinks it was related to alcohol; doesn't remember if it was pills; that she would have to get the records; she would be guessing. (T. at 59).
Ryan's testimony begins on page 77 of the Transcript. Ryan lives in Crosby; he has one child, the minor child at issue in this proceeding, whom he had temporary custody of at the time of trial. (T. at 77). Ryan owns a house, a three bedroom, split level home. (T. at 79). The child has his own room. Id. There are numerous relatives that live in Crosby, including his mother and father, aunts and uncles. (T. at 79-80).
Ryan works full time for Farmer's State Bank, working 8:30am - 4:00 pm, five days per week. (T. at 80). He makes about $1,800 per month. Id.
Denise did not contribute any financial support for the benefit of their son, since December of 2006. (T. at 81).
Ryan has been taking care of his son's medical needs, appointments, immunizations. Id. He related that on one occasion, he brought his son to the emergency room because of constipation, with the outcome being, feed the boy more prunes. (T. at 82-83).
Ryan sees his parents frequently, working with his father, who is the President of the Bank, and seeing his mother about every other day. (T. at 83). Ryan socializes, estimating that he probably goes out and drinks about four times per month. (T. at 84). If he does go out, he would bring his son to his parents' house. (T. at 85).
Ryan described some of the behavior he witnessed of Denise. Ryan's view was that when Denise drank, she usually got intoxicated. (T. at 89). On one occasion, Denise jumped out a window at Ryan's uncle's farm. Id. He found her later, outside, crying and stating that her other child(5) would be better off with Ryan. (T. at 90).
Ryan recalled the night of her attempted suicide in December of 2006. Denise called him to get back together, and he told her that it wouldn't happen. (T. at 91). She told him to "take good care of [minor child]." Id.
On one occasion, she threatened to move with their son. (T. at 91). She wanted to change their son's last name, because if they weren't together, he should not carry Ryan's last name. (T. at 92).
In October of 2006, Denise broke into Ryan's house, after she had been uptown drinking. (T. at 92). She destroyed a lot of their son's things. Id. Another night, she called the cops to come and pick up their son, even though it was Ryan's weekend to have him. (T. at 94).
The day that Denise attempted suicide, their son was in her care. (T. at 96). The boy was at her parent's house, however. (T. at 95).
Since the Interim Order, Ryan never caused Denise to miss any visitation. (T. at 96). Ryan expressed his concern about Denise's lack of stability. (T. at 97).
Ryan explained that his son had symptoms of teething, while in his custody, i.e. diarrhea. (T. at 122).
Denise put in evidence, pictures of their son having a rash. The rash was explained by witness Kim Olson, called by Ryan. Ms. Olson explained that she remembers when she was caring for the child, he got sick, with diarrhea. (T. at 140). "And within an hour, it was a full-blown rash. But there was nothing you could do. Change diapers, and he would, you know, go in it." Id.
Denise's testimony begins on page 145 of the Transcript. Denise testified that she lives in a five bedroom house in Crosby. (T. at 145). She lives with her other son, and her fiance; her other son is five years old. (T. at 145-146).
She described that she began her relationship with Ryan in June or July of 2005, and that lasted until November of 2005; and after that the parties were intimate, on occasion. (T. at 146-147).
She described the suicide incident of December of 2006, as her going out to an office party, drinking alcohol, and later went home and talked to Ryan on the phone, which sent her over the edge. (T. at 148). She clarified that she did actually see Ms. Larson in November of 2006, prior to her attempted suicide. (T. at 150). She claims she no longer uses alcohol. Id. She "just quit" using alcohol. (T. at 151).
She first met her "fiance" in November of 2006; she claims they were engaged in June of 2007. (T. at 151). Apparently, at the time of trial, her fiance was on workers compensation, due to an injury. (T. at 152).
She explained that before the Interim Order, Ryan would come over and see their son three times per week, hang out, and help bathe him "and stuff." (T. at 154). He later began taking him every other weekend and once in awhile during the week. Id.
Denise testified that she believes that their son is dirty when she gets him for visitations. (T. at 161). In fact, as shown by exhibits introduced by Denise, she would basically strip the child down and take naked pictures of the child, apparently, to help "document" her case for custody. Her pictures were taken between February and October of 2007. (T. at 171).
With respect to Denise's self evaluation, she claims that she has no concerns about relapsing; because "I have two children that count on me." (T. at 174).
When asked why she thinks she should have custody, she replied: "Because I am his mother, and I believe the children should be with their mother. And I believe that I can provide better care for him. Better medical care, better hygiene for him. And more stable. We have a more stable home. My fiance and I am getting married." Id.
On cross-examination, Denise admitted that she gave the boy a bathe every time she saw him, during the Interim Order period, which was at least three times per week. (T. at 178). She testified that the filthy white matter that comes from a diaper, gets on her son's penis, and she cleans it off; and sometime he is dirty because he was playing outside. (T. at 180).
Denise testified that her other son was about 2.5 years old when she was hospitalized in 2004 for her suicide attempt, when she lived in Wyoming. (T. at 180).
Denise admitted that she was charged with simple assault in November of 1999. (T. at 184). She claims that a man came over to her other son's father's house and started dragging him out of the house, and she tried to stop him, and ripped his shirt; that he threw her into the tailgate of the pickup truck; and that the judge told her if she stayed out of trouble until she was 21, it would be erased from her record. (T. at 184-185).
She had to talk to social services from Minot about the naked photographs she took of the child at issue; apparently, Wal Mart notified the authorities after developing some of the pictures that she offered into evidence at trial of this matter.(6) (T. at 187).
John Grifith, Denise's fiance', testified at trial. He testified that they have been living together since the middle of April, 2007. (T. at 192). He has two daughters from a previous relationship. Id.
On cross examination, John testified that he and Denise began dating in February of 2007. (T. at 197). John's daughters live in Wyoming, and he has not precluded the idea of moving back to Wyoming. (T. at 199).
Jena Hanisch, Ryan's mother, testified at trial. She testified that she would see the child about three to four times per week; and that if Ryan and the child were over for dinner, Ryan would give the child a bath, or she would give the child a bath. (T. at 228). She and her husband would watch the child on Friday nights, sometimes Saturday. (T. at 229).
Despite the facts set forth above, the Honorable Gerald Rustad issued an Order, dated November 17, 2007, which set forth his findings, and wherein he concluded that "Overall, the Court determines that placement of the child with the mother, Denise, would be in the child's best interests, subject to significant and regular visitation with the Plaintiff, Ryan, and his extended family." (Ap. at 20).
Ryan appeals this decision and respectfully requests a reversal of the decision, and place his son's primary care, custody and control with him.
Standard of Review: "A finding of fact is clearly erroneous only if it is induced by an erroneous view of the law, if no evidence exists to support it, or if, upon review of the entire evidence, we are left with a definite and firm conviction that a mistake has been made." Berg v. Berg, 2002 ND 69, 642 NW2d 899, 901 (ND 2002);See also Klein v. Larson, 2006 ND 236, 724 NW2d 565 (ND 2006); and Koble v. Koble, 2008 ND 11, 743 NW2d 797 (ND 2008).
In analyzing the trial court's findings and decision, we must keep in mind a very important rule of law, that there is no presumption and should be no bias in favor of a male or female, which is codified in NDCC Section 14-09-06.1 "Awarding Custody - Best Interests and Welfare of Child":
"An order for custody of an unmarried minor child entered pursuant to this chapter must award the custody of the child to a person, agency, organization, or institution as will, in the opinion of the judge, promote the best interests and welfare of the child. Between the mother and father, whether natural or adoptive, there is no presumption as to who will better promote the best interests and welfare of the child."
NDCC Section 14-09-06.1 (2004) (emphasis added).
"Gender bias in judicial proceedings is wholly unacceptable." Dalin v. Dalin, 512 NW2d 685, 689 (ND 1994). The former "tender years" doctrine has been reversed, and there is to be no gender bias in custody decisions. Klein v. Larson, 20006 ND 236, 724 NW2d 565, 568 (ND 2006), citing, McDowell v. McDowell, 2003 ND 174, p19, 670 NW2d 876.
Custody determinations are supposed to based solely on what is in the child's best interests, pursuant to NDCC Section 14-09-06.2, (See Reprint, Infra.). Koble v. Koble, 2008 ND 11, 743 NW2d 797 (ND 2008).
With the above very important rules of law in mind, lets analyze the trial court's Order, dated November 14, 2007. (Ap. at 17-21).
The first factor under Section 14-09-06.2, i.e. the love, affection, and other emotional ties existing between the parents and child, the court determined "slightly favors Denise." The court wrote that "Denise, clearly articulated her love, affection, and emotional ties with the child and the child's apparent reactions to her and the child's sibling who lives with them in the home. Although it is clear that the Plaintiff likewise has great affection and love for the child, it is the Court's opinion that this factor slightly favors Denise." (Ap. at 19).
This finding is clearly erroneous, and is not based upon any testimony in the Transcript. In reviewing Denise's testimony, which begins on page 145 of the Transcript, she describes the child as smart, loving, that he loves his family, that he misses his brother, and that he is a normal five year old boy. (T. at 146). The remainder of her testimony focused on her overdosing on medications in December of 2006, (T. at 149), her sessions with Ms. Liz Larson, social worker, (T. at 150), her alleged abstaining from alcohol, (T. at 150-151), her new live-in boyfriend, whom she calls her fiancé' (T. at 152), some testimony regarding her complaints that Ryan isn't perfect, (T. at 153-160), testimony regarding the child's diaper rash, which she took photos of, (T. at 161), as well as other parts of the child's body, i.e. her son's penis, (T. at 166), her opinion that her son was constipated because of an improper diet, (T. at 171), her testimony that now she goes to church and doesn't drink anymore, (T. at 172), her self-diagnosis that she won't ever relapse again, (T. at 174), and her opinion that she should have custody because she is the mother and leads a more stable lifestyle. (T. at 174).
The Court did not make any findings, under any factor, pertaining to the undisputed evidence that Denise broke into Ryan's house and destroyed property belonging to their son, (T. at 92). This clearly shows her lack of love and affection for the child. She failed to provide any financial support during the interim order period, almost 11 months in duration. (T. at 81).(7) Denise told Ryan to "take good care of [minor child]," prior to her suicide attempt. (T. at 91). This clearly shows a lack of love and respect for the child.
On the other hand, Ryan was showing his love, by being a stable parent, taking his son to his medical appointments and being a good father. (T. at 82-83). There is no evidence in the Record that Ryan was amiss in his parenting responsibilities, or factors negating his love and affection for his son, other than Denise's drastic attempts to throw mud at Ryan by claiming he wasn't keeping the child clean while in his care. She also claimed that Ryan would go out and drink alcohol, on occasion. She also attempted to attribute fault to Ryan, for her own suicide attempt in December of 2006, (T. at 148), despite her lengthy and troubled history of mental illness and past suicide attempts, which pre-date her ever meeting Ryan.
The Court, in its analysis, writes that Ryan has great love and affection for the child, but despite the overwhelming evidence of Denise's past behavior, determines that the factor "slightly favors Denise." Based upon the undisputed evidence in the Record, there is no reasonable basis, or evidence in the Record, to support this finding and/or conclusion; it is clearly erroneous.
If the facts were reversed, and Ryan had the past suicide attempts, breaking into Denise's house and destroying property belonging to his son, not paying support for 11 months, having a new live-in whom he dated for a couple of months prior to bringing her into the home, stripping the boy down before each visitation and taking naked and disturbing photos, for purposes of "documenting" innocent diaper rashes, and a history of significant alcohol and drug abuse, he would not have been "slightly favored."
It is clearly erroneous, under the facts presented in this case, that the parties were not at least "neutral" with neither parent obtaining an advantage under this factor. The only explanation for this factor going in Denise's favor is gender bias, which is impermissible.
The Court then writes that "the capacity and disposition of Denise to give love, affection also slightly favors Denise." (Ap. at 19). Thus, the Court gives her the advantage under Section 14-09-06.2(b). The Court does not explain why, with a history of suicide attempts, mental health commitments, destroying property belonging to their son, frequent relationships with men, and a history of alcohol and drug abuse, this factor favors Denise.
Ryan works at a bank, has banker's hours, does not have any history of drug or alcohol abuse, does not have a history of mental illness, is not on medications, does not have a history of frequent relationships with other women, and lived alone in his house at the time of trial. Ryan had temporary custody of the child for 11 months preceding the time of trial. The child, who was born [Redacted], 2006, was only about seven months old when the exparte Interim Order went into effect. Ryan had the child in his care a great majority of the child's life at the time of trial and showed and proved that he has the capacity and disposition to provide the child love and affection.
In contrast, when the child was only five months old, Denise broke into Ryan's house, and destroyed their son's property. A few months later, she attempts suicide. A few months later, she has her new boyfriend move in with her. Denise has a lengthy history of alcohol and drug abuse, civil commitments, suicide attempts, and failed relationships. Of course, at the time of trial, she is going to church, she quit drinking, etc., but that doesn't mean that the Court can ignore the undisputed evidence pertaining to her history of instability and her lack of capacity and disposition to provide love and guidance for the child.
Again, the Court can only be acting upon gender bias or some other impermissible and unexplained factor. The Court's finding is clearly erroneous, there not being factual support in the Record for such a finding. Again, if the situation and facts were reversed, Ryan would not be "slightly favored" over Denise. This is gender bias.
The Court writes, under Section 14-09-06.2(c), that "the parents are both disposed to feed, clothe, and care for the medical needs of the child. The mother appears slightly more inclined to believe these activities are her calling rather than an obligation. She seems more inclined to notice the welling-being of the child." (Ap. at 19). Another advantage for Denise, which is unwarranted under the undisputed facts of the case.
Ryan testified regarding his taking care of the child's needs, i.e. taking the child to the clinic for medical appointments, and he even took the child to the emergency room on one occasion because of constipation. There was no evidence that the child's medical needs suffered while in Ryan's care. Ryan testified that he is employed full time with the bank, has a home, and is otherwise disposed to provide these needs for the child.
The Court apparently gave the advantage to Denise, because of her tactics of stripping the child at the start of her visitations, and taking pictures of his naked body, to prove that the child had a diaper rash, and that the child's penis would collect the white material inside diapers. Denise's development of these photos at Wal Mart prompted a call to the local authorities. Denise's behavior in this regard should be viewed as a negative, not a positive. It shows her immaturity, and taking actions not in the best interests of the child. It was not in the child's best interests to have photos of his private parts exposed for all to see. It shows that she continues to make poor choices and that she is immature.
Additionally, these are behaviors that she exerted after the Interim Order and prior to trial, when she was attempting to build her case for custody. There was no proof of her being overly concerned for the child's welfare prior to her suicide attempt in December of 2006. The evidence prior to her suicide attempt was that she destroyed the child's property in October of 2006, told Ryan to take good care of their child, and attempted to commit suicide in December of 2006. She didn't pay any child support for the 11 months during the interim period. Yet the Court makes a finding that "the mother appears slightly more inclined to believe these activities are her calling rather than an obligation." (Ap. at 19).
Again, her obtaining the advantage in this factor is clearly erroneous, and is a function of implied gender bias. If the roles and gender were reversed, Ryan would not obtain such an advantage.
The Court then does a cursory analysis of factor "d" and states: "the Plaintiff has provided a stable home since December 2006. The Defendant provided the home prior to that. I don't find an advantage for either parent relating to this factor." (Ap. at 19).
Part "d" of Section 14-09-06.2 reads "the length of time the child has lived in a stable satisfactory environment and the desirability of maintaining continuity."
The Court did find Ryan's home to be "stable" and we don't dispute that. The Court does not find that Denise's home was "stable" the Court just stated she provided the home. We agree that Denise's home, was not stable, and that the Court was correct in not finding her home to be stable. What we disagree with, is that there is no advantage to Ryan under this factor.
The factor specifically states that the Court must look to the length of time that the child has lived in a stable and satisfactory environment and the desire to maintain continuity. Ryan had the child in his care for 11 months at the time of trial. The trial took place on November 8th, 2007. The child was born [Redacted], 2006. Interim Custody was granted on December 12th, 2006. Thus, at the time of trial, the child had lived with Ryan for 11 months out of his [Redacted] months of life.
The North Dakota Supreme Court has recognized that emotional bonds may be created while a custody case is pending that are desirable to perpetuate in the permanent custody order. Coons v. Coons, 2003 ND 115, 665 NW2d 60 (ND 2003). Furthermore, the Court recognizes that "temporary custody orders have a tendency to become permanent custody orders." Id. (citations omitted). "The phenomenon exists largely because of the court's concern for the physical and psychological stability of the child." Id.
It was clearly erroneous for the trial court not to give the advantage to Ryan, for providing the child with a stable home, and for ignoring the desirability to maintain the continuity of the home for the child. The trial court found Ryan's home to be stable; didn't find that Denise's home was stable, but yet, doesn't give Ryan the credit he deserves in providing the child with a stable home for a significant majority of the child's life.
The trial court discusses factor "e", which is the permanence, as a family unit, of the existing or proposed custodial home, and gives that advantage to Denise, because "the mother offers the more traditional family unit...." (Ap. at 19).
This finding is likewise clearly erroneous. The undisputed factual history involving Denise is that she has a child from a prior, failed relationship, her relationship with Ryan failed, she has a history of mental illness, drug and alcohol abuse, and suicide attempts. While she was allegedly recovering from her last suicide attempt, she meets her new boyfriend, they start dating in February of 2007, they begin living with each other a short two months later, April of 2007, and she proudly proclaims during trial that they are engaged, i.e. "[m]y fiancé and I am getting married." (T. at 174). The trial court considers this "the more traditional family unit."
Denise's home and lifestyle are not "the more traditional family unit." Denise has no history of a stable home or stable lifestyle. Her miraculous alleged recovery from years of drug and alcohol abuse and suicide attempts, after only 10 sessions with Mr. Liz Larson, a social worker, should not overshadow her past history. Denise's past history should have been relevant in this case, irregardless of her alleged recovery, but it was not considered by the trial court, as evidenced throughout the court's decision. There is no evidence in the Record to suggest that Ryan has any instability factors in his history; all evidence suggests he provided a stable home for son, and that prior to his son living with him, he had regular and consistent contact and was very involved in his son's life. Yet, the trial court gives the advantage to Denise on this factor.
As explained by this Court in Klein v. Larson, supra., the stability of a child's home can be undermined in various ways. It could include frequent moves to unfamiliar settings, a succession of persons residing in the home, live-in romantic relationships and other potential disruptions. Klein, 2006 ND at p.4 (citations omitted). Furthermore, a proper consideration of factor "d" requires the court to assess the quality and stability of the child's past environment. Id. This statutory factor does not require a showing of adverse harm to the child before a parent's unstable lifestyle may be considered in awarding custody. Id.
In this case, the trial court failed to consider Denise's checkered past, relying upon her self serving testimony that she is cured. Again, the trial court's finding is clearly erroneous, not supported by the facts in the Record, and can only be explained by implied gender bias.
In assessing factor "f" the Moral fitness of the parents, the trial court wrote, "Moral fitness is not an issue in this case." (Ap. at 19).
"Moral," is defined as "pertaining to conscience or to the general principles of right conduct (moral judgment). Ethical, religious, right-and-wrong. Demonstrating correct character or behavior (moral person). Honorable, aboveboard, principled, appropriate, proper, noble." West's Legal Thesaurus and Dictonary, (1985).
The trial Record reflects the absence of facts that Ryan has led an immoral life, i.e. he has no history of drug and alcohol abuse, suicide attempts, failed relationships, criminal history, or other facts to suggest that his morality is less than to be expected of a parent. On the other hand, Denise has all of those factors that have been discussed at length, which fit within the definition of "moral fitness" or the lack thereof. Ryan should have been given the advantage under this factor, but was not, which is clearly erroneous. The parties respective moral positions should have been "relevant" in this case.
The statute has made moral fitness a relevant factor, and there are facts presented in this case, that make it relevant, but the trial court ignored them. The trial court apparently had an erroneous view of the law and what he needed to consider in this important decision. Moral fitness is an issue that is relevant in this proceeding. Denise's past conduct could be detrimental to the child at issue. Failure to consider it and apply the relevant facts is reversible error. Klein, 2006 ND 236, supra.
Ryan receives from the trial court, his first "plus" when the trial court analyzed factor "g" the mental and physical health of the parents. In the trial court's language, "Mental or physical health is not a current issue. If the mother has custody, she must remember her vulnerabilities, however. This item slightly favors the Plaintiff." (Ap. at 20) (emphasis added).
This factor only "slightly favors" Ryan, the court writes, despite the undisputed proof of the lengthy history of mental health issues involving Denise, which included significant alcohol and drug abuse and suicide attempts during the periods of time that she was parenting her children. This factor should strongly favor Ryan, not "slightly favor."
The statement that Denise's mental and physical health is not a "current issue" is also clearly erroneous. Denise has to live with her past, and her past should have been relevant in this best interests of the child analysis. The statute makes her past mental health an "issue." It is a current issue to deal with and should be attributed the appropriate weight to it in the overall best interests of the child analysis.
Under factor "k", the trial court was unclear as to whether either party received an advantage. The trial court comments that both parents have good extended family which affects the best interests of the child, and noted that Denise has a fiancé', which affects the best interests of the child. If this was used as an advantage for Denise, such would be clearly erroneous in that the two together have not shown that they are going to be a stable couple, or that they will actually ever get married. The argument is that this relationship may also be transitory, and that the child will be exposed to other individuals in the home, for temporary periods of time. Her boyfriend has not ruled out moving back to Wyoming to be closer to his two daughters.
The trial court concludes with the statement that "Overall, the Court determines that placement of the child with the mother, Denise, would be in the child's best interests, subject to significant and regular visitation with the Plaintiff, Ryan and his extended family." (Ap. at 20).
This ultimate conclusion of the trial court is based upon findings that are clearly erroneous, as argued above, and should be reversed. The trial court's findings and conclusions are induced by an erroneous view of the law, implied gender bias, and are not supported by the facts. When you look at the entire evidence in this case, there should be no question that a mistake has been made.
For the foregoing reasons, Ryan requests that this Court reverse the decision of the District Court and order that he have the primary care, custody and control of the minor child herein, with Denise having visitations.
Dated this 15th day of May, 2008.
|Chapman Law Office|
|Kevin J. Chapman|
|417 First Ave. East|
|PO Box 1920|
|Williston, ND 58802-1920|
|_/s/ Kevin J. Chapman|
|Kevin J. Chapman #05076|
|ATTORNEY FOR THE APPELLANT|
1. The Motion filed by Ryan was uncontested; the Register of Action reflects that no hearing was ever requested by Denise on the issuance of the ex parte Interim Order.
2. The Court signed an Order Appointing Custody Investigator, which was Dr. Podrygula. (Ap. At 15).
3. The Trial Transcript mistakenly identifies the questioner as Ms. Hermanson, Ryan's Counsel. It was Mr. Nehring, counsel for Denise, asking Liz Larson direct examination questions.
4. Counsel later stipulated that the suicide gesture took place December 10, 2006 and that Ms. Larson's records may be misstated; and that the suicide gesture was an overdose of antidepressant medication. (T. at 62-63).
5. The child's name is in the Transcript, at p. 90.
6. The end result was a "no services were required" finding. (T. at 219).
7. See McDowell v. McDowell, 2003 ND 174, 670 NW2d 876 (ND 2003) (stating parent's don't need a court order to know that they are financially responsible for their children).