IN THE SUPREME COURT
STATE OF NORTH DAKOTA
|Dawn Michelle Siewert,|
Alan Dean Siewert,
Supreme Court Numbers
20080065 and 20080095
Civ. No. 09-02-C-3625
APPEAL FROM CROSS MOTIONS TO AMEND JUDGMENT DATED MAY 25, 2007, AND AMENDED JUDGMENT ENTERED JANUARY 15, 2008
CASE NO.: 09-02-C-3625
COUNTY OF CASS
EAST CENTRAL JUDICIAL DISTRICT
HONORABLE CYNTHIA ROTHE-SEEGER
BRIEF OF APPELLANT
|Susan L. Ellison|
|Attorney for Appellant|
|ND ID #04774|
|MN ID #214012|
|OHNSTAD TWICHELL, P.C.|
|901 - 13th Avenue East|
|P.O. Box 458|
|West Fargo, ND 58078-0458|
|TEL (701) 282-3249|
|FAX (701) 282-0825|
TABLE OF CONTENTS
TABLE OF CASES, STATUTES, AND OTHER AUTHORITIES ii
STATEMENT OF THE ISSUES 1
STATEMENT OF THE CASE 4
STATEMENT OF FACTS 10
STANDARD OF REVIEW 62
LAW AND ARGUMENT 65
I. The District Court erred when it determined it is in the best interests of R.S. and C.S. to remain in their mother's custodial care and reduced their father's visitation. 65
A. A material change of circumstances has occurred to modify custody. 66
B. The District Court erred in disregarding expert testimony of Dr. Stephen Timm. 74
C. It is in the best interests of the children to change physical custody to Alan. 84
1. Findings of Fact 12 and 13 are erroneous. 95
2. Finding of Fact 14 is erroneous. 96
3. Finding of Fact 16 is erroneous. 97
4. Finding of Fact 17 is erroneous. 98
II. The District Court erred when it determined it is in the best interests of the children for their mother to have sole legal custody. 101
A. Finding of Fact 5 is erroneous. 102
III. The District Court erred when it denied Alan Siewert's request for a guardian ad litem. 109
CERTIFICATE OF SERVICE
TABLE OF CASES, STATUTES, AND OTHER AUTHORITIES
|Bladow v. Bladow, 2005 ND 142, ¶ 10, 701 N.W.2d 903 (N.D. 2005) 85|
|Brandt v. Brandt, 523 N.W. 2d 264, 266 (N.D. 1994) 74|
|Dietz v. Dietz, 2007 ND 84, 9, 733 N.W.2d 225 (N.D. 2007) 66, 69|
|Fast v. Mayer, 2005 ND 37, ¶ 10, 692 N.W.2d 138 (N.D. 2005) 77|
|Flatt v. Kantak, 2004 ND 173, 15, 687 N.W. 2d 208 (N.D. 2004) 63|
|Gajewski v. Taylor, 536 N.W. 2d 360 (N.D. 1995) 64|
|Gietzen v. Gabel, 2006 ND 153, 6, 718 N.W. 2d 552 (N.D. 2006) 62|
|Hanson v. Hanson, 2005 ND 82, ¶ 16, 695 N.W.2d 205 (N.D. 2005) 109|
|Hendrickson v. Hendrickson, 2000 ND 1, 25, 603 N.W.2d 896 (N.D. 2000) 85, 99|
|Hilgers v. Hilgers, 2002 ND 173, ¶ 7, 653 N.W.2d 79 (N.D. 2002) 63|
|In Interest of Kupperion, 331 N.W. 2d 22 (N.D. 1983) 64|
|In re T.T., 2004 ND 138, ¶17, 681 N.W.2d 779 (N.D. 2004) 75|
|In re Thompson, 2003 ND 61, ¶ 7, 659 N.W. 2d 864 (N.D. 2003) 68|
|Loll v. Loll, 1997 ND 51, ¶ 22, 561 N.W. 2d 625 (N.D. 1997) 74|
|Mayo v. Mayo, 2000 ND 204, ¶¶ 23-25, 619 N.W.2d 631 (N.D. 2000) 75|
|McDowell v. McDowell, 2001 ND 176, 24, 635 N.W.2d 139 (N.D. 2001) 93|
|Olson v. Olson, 361 N.W.2d 249, 251 (N.D. 1985) 101|
|Rittenour v. Gibson, 2003 ND 14, 29, 656 N.W. 2d 691 (N.D. 2003) 63|
|Rueckert v. Rueckert, 499 N.W. 2d 863, 868 (N.D. 1993) 62|
|Schiff v. Schiff, 2000 ND 113, 10, 611 N.W. 2d 191 (N.D. 2000) 62|
|Selzler v. Selzler, 2001 ND 138, 21, 631 N.W.2d 564 (N.D. 2001) 68|
|Sweeney v. Sweeney, 2002 ND 206, at ¶ 12, 654 N.W. 2d 407 (N.D. 2002) 85|
|Thompson v. Olson, 2006 ND 54, 10, 711 N.W. 2d 226 (N.D. 2006) 84|
|Zuger v. Zuger, 1997 ND 97, 36, 563 N.W. 2d 804 (N.D. 1997) 62|
|N.D.C.C. 14-09-06.2 84, 86|
|N.D.C.C. § 14-09-06.6(4) 69|
|N.D.C.C. § 14-09-06.6(6) 66, 67|
|N.D.C.C. § 14-09-06.6(6)(b) 84|
|Hynan, Interviewing Children in Custody Evaluations,|
36 FAMCCR 466, 474 (1998) 78
|Judith S. Wallerstein et al., Surviving the Breakup 77 (1980) 90|
|N.D.R. Civ. P. 52(a) 62|
|N.D.R. Ct. R. 8.7(c) 109, 110, 111|
STATEMENT OF THE ISSUES
Whether the District Court erred when it determined it is in the best interests of R.S. and C.S. to remain in their mother's custodial care and reduced their father's visitation.
Whether the District Court erred when it determined it is in the best interests of the children for their mother to have sole legal custody.
Whether the District Court erred when it denied Alan Siewert's request for a guardian ad litem.
STATEMENT OF THE CASE
[¶4] For purposes of this brief, 1) Plaintiff and Appellee, Dawn Michelle Siewert, shall be "Dawn"; Defendant and Appellant, Alan Dean Siewert, shall be "Alan"; and Alan's wife, Kathleen Siewert, shall be "Kathleen".
[¶5] Dawn and Alan were divorced on May 12, 2004. (App. 22).
[¶6] On March 14, 2007, Dawn moved to modify the divorce judgment by granting her sole legal custody and restricting Alan's visitation to a supervised setting. (App. 23). On March 16, 2007, Dawn requested ex parte relief for supervision of Alan's visitation pending resolution of her motion. (App. 28).
[¶7] On April 24, 2007, Alan moved to modify the judgment by granting Alan sole legal and physical custody of the children, for appointment of a guardian ad litem, and custody investigator, and for a parental capacity evaluation. (App. 30).
[¶8] On May 25, 2007, the trial court appointed Laurie Christianson ("Ms. Christianson") custody investigator, denied temporarily restricting Alan's visitation, ordered an evidentiary hearing, and denied a parental capacity evaluation and guardian ad litem. (App. 35).
[¶9] Ms. Christianson submitted a report on October 15, 2007. (App. 41). Following evidentiary hearing on November 15 and 16, 2007, the District Court issued its decision on January 8, 2008, which granted Dawn sole legal custody and significantly reduced Alan's visitation. The Amended Judgment was entered on January 15, 2008. (App. 54). A Notice of Entry of Amended Judgment was served on January 15, 2008. (App. 80). Alan filed a Notice of Appeal on March 5, 2008. (App. 82).
STATEMENT OF FACTS
[¶10] Alan and Dawn have a 14-year-old son, R.S., and a 10-year-old daughter, C.S. (App. 54).
[¶11] The parties' stipulated judgment ordered joint legal custody granting each parent equal rights to make the children's major decisions (education, health care and religious training). (App. 9). Dawn was granted physical custody; Alan was granted almost 50% visitation. (App. 11).
[¶12] Shortly before the divorce, Dawn reported Alan to Cass County Social Services for leaving C.S. home alone. (Ct. Ex. 2, p. 144, para. 2; Docket #115, Ex. 18, p. 3, para. 5). Social services determined there were "no risk factors for physical neglect/lack of supervision." (Docket #115, Ex. 18, p. 1). On May 14, 2005, Alan married Kathleen who has physical custody of two sons, T.A. and J.A., ages 16 and 13, who live with Kathleen and Alan. (Tr., vol. I, p. 58, LL. 3-13; Tr., vol. I, p. 133, LL. 11-13). C.S. and R.S. have known J.A. and T.A. since 2003, all four children live in Alan's home and celebrate holidays together; T.A. and R.S. are close in age and play on the same sport teams. (Docket #115, para. B; Docket #117, para. GG; Tr. vol. 1, pp. 146-47, 150, 152, 173-75).
[¶13] In the summer of 2004, Dawn made several criminal complaints of harassment against Kathleen to Fargo Police. (Tr., vol. I, p. 108, LL. 10-17; Docket #94, Ex. 3, pp. 1-2). Police officer Jessica Bergem told Dawn some of her allegations were not harassment but legitimate communication between parents. (Tr., vol. I, p. 110, LL. 11-21; p. 112, LL. 11-13).
[¶14] Dawn denied she intended to file a criminal complaint against Kathleen, but Officer Bergem believed otherwise. (Tr., vol. I, p. 19, LL. 4-6 and p. 108, LL. 10-17). Dawn wrote to Officer Bergem, "If she (Kathleen) is not prosecuted, I need the reports as soon as possible to pursue a disorderly conduct restraining order." (Docket #94, Ex. 4, p. 5, para. 1). Dawn continued complaining to Fargo Police into 2005. (Tr., vol. I, p. 109, L. 17-p. 110, L. 6; p. 111, L. 20-p. 112, L. 8). Officer Bergem described Dawn's behavior as "overly critical," immature, and mocking Kathleen. (Tr., vol. I, p. 128, L. 20-p. 129, L. 17; Tr., vol. II, p. 165, L. 24-p. 166, L. 20; Ct. Ex. 2, pp. 1-2).
[¶15] Dawn suffered from depression for several years, was diagnosed in 2001 with major depression, and prescribed Celexa. (Ct. Ex. 2, p. 154, para. 2). In June of 2004, Dr. David Hanekom who wrote, "Ms. Siewert has had some significant change in her mood with irritability, anhedonia and depression over the last few weeks. She is having some difficulty coping with her ex-husband and his new girlfriend. . . . is now willing to see a clinical psychologist. . .." (Ct. Ex. 2, p. 133, para. 2). Dawn reported feelings of helplessness and that Alan was trying to control her. (Ct. Ex. 2, p. 144, para. 2; p. 148, para. 1; p. 150, para. 4).
[¶16] Dawn had a history of "adjustment disorder chronic with mixed anxiety and depressed mood" due to "relationship stress with ex-husband". (Ct. Ex. 2, p. 121 and157).
[¶17] Kathleen asked Dawn more than once to leave her and her family alone. (Ct. Ex. 2, p. 1; Docket #94, Ex. 3, Ex. 4, p. 2, para. 4).
[¶18] Following R.S.'s basketball game in November 2004, Dawn ripped C.S. out of Kathleen's arms, nearly falling down the bleachers with C.S. (Docket #115, p. 25, para 2). While Alan and Kathleen honeymooned in May of 2005, Dawn pulled R.S. from a baseball game, yelled at Alan's mother making her cry, and humiliated R.S., which confirmed his fear about confrontation and embarrassment. (Docket #110, para. 7; Docket #117, para. 3J, para. 1; Docket #116, para. 3; Ct. Ex. 2, pp. 241-42). This prompted Kathleen to leave a voice mail for Dawn on May 16, 2005. (Docket #94, Ex. 4, p.9).
[¶19] On June 26, 2005, after Dawn called Kathleen a "bitch" at a baseball game, Alan emailed Dawn, about her "absurd outburst". (Docket #94, Ex. 4, p. 7). Dawn replied on June 27, 2005, (Docket #94, Ex. 4, p. 6), and Kathleen commented on June 28, 2005. (Docket #94, Ex. 4, pp. 3-4).
[¶20] On June 28, 2005, within hours of receiving Kathleen's email, Dawn emailed Officer Bergem a string of emails, said she had a tape recording to personally deliver and stated, "Please let me know when I may do this and receive a report(s) to give to my attorney . . . I need the reports as soon as possible to pursue a disorderly conduct restraining order." (Docket #94, Ex. 4, p. 5). A day later, Dawn sent the same information to another police officer ("JRK"). (Docket #94, Ex. 4, p. 2). Kathleen told the second officer about confrontations at the children's baseball games when Dawn called Kathleen a "bitch" in front of other parents and children and said she sent emails out of frustration wanting Dawn to leave her alone. (Docket #94, Ex. 4, p. 2).
[¶21] Kathleen had contact with Dawn, or the children at Dawn's home, nine times from 2004 to 2007, the majority of which told Dawn to stop harassing Kathleen. (Docket #117, paras. 3J and 3L). Dawn's complaints to police were not prosecuted. (Tr., vol. I, p. 109, LL. 14-16).
[¶22] Shortly after the baseball incident in May of 2005 and just before she began making reports to Fargo Police, Dawn took C.S. to licensed psychologist Dr. Carita Shawchuck without informing Alan, who learned of the therapy through an insurance EOB in July 2005. (Docket #94, Ex. 4; Ct. Ex. 3, Tr. Ex. 1, pp. 1-5 and 15-17; Tr., vol. I, p. 159, LL. 21-25). Dawn complained to Dr. Shawchuck that Kathleen frequently said bad things about her to the children, Alan condoned Kathleen's behavior, and the children are not allowed to talk to her when they are with Alan. (Ct. Ex. 3, Tr. Ex. 1, p. 2). C.S. was in first grade. C.S. repeated Dawn's complaints to Dr. Shawchuck. (Ct. Ex. 3, Tr. Ex. 1, p. 9).
[¶23] Dawn claimed school counselor Bonnie Clarice made the referral, but there was no written referral, and Ms. Clarice did not mention this to the custody investigator, nor talk to Dr. Shawchuck. (Docket #86, para. 24; Ct. Ex. 2, p. 277; Tr., vol. I, p. 22, LL. 9-12; Ct. Ex. 3, p. 9, LL. 23-25). Dawn's handwritten notes about Ms. Clarice dated 11/24/04 and 11/13/04 were written seven months prior to counseling and did not mention a referral.(Docket #86, Ex. B, p. 1 and Ex. C, p. 3).
[¶24] Under cross-examination, Dawn claimed she informed Alan of C.S.'s counseling in June of 2005. (Tr., vol. I, p. 26, LL. 11-19 and p. 28, LL. 3-10). She refused to believe that Alan learned of the counseling through insurance. (Tr., vol. I, p. 28, LL. 14-17).
[¶25] C.S. saw Dr. Shawchuck 16 times from June 8, 2005, to February 2, 2006, with Dawn present fourteen times. (Ct. Ex. 3, Ex. 1, 8, 12, 18, 21, 23, 24, 28, 30, 34, 35, 38, 41, and 44). Alan attended four sessions after he learned of the counseling. (Ct. Ex. 3, Ex. 1, pp. 25, 37, 39, and 43).
[¶26] On several occasions, C.S. echoed Dawn's comments of negative feelings about her father and stepmother. On June 8, 2005, Dawn reported to Dr. Shawchuck that "she perceives that her ex-husband's wife frequently says bad things about her . . . [C.S.] has told her that she no longer attempts to tell her father . . . she perceives that father is aware and condones Kathleen's behavior." (Ct. Ex. 3, Tr. Ex. 1, p. 2). C.S. was present to hear Dawn's complaints to Dr. Shawchuck. (Ct. Ex. 3, p. 11, LL. 9-19 and Tr. Ex. 1, p. 1). Subsequently, accompanying Dawn, C.S. reported, "Kathleen swears and swears about my mom." (Ct. Ex. 3, Tr. Ex. 1, p. 9). On July 11, 2005, Dawn reported C.S. "will suffer repercussions" and C.S. reported "dad doesn't believe me . . . and punishes her for behavior she has not done." (Ct. Ex. 3, Tr. Ex. 1, p. 18). On July 25, 2005, both C.S. and her mother stated Alan would be angry with C.S. if he knew of her complaints. (Ct. Ex. 3, Tr. Ex. 1, p. 21). On August 2, 2005, "mother corroborates" [C.S.'s] report that C.S. perceived father and stepmother were trying to take her away from her mother. (Ct. Ex. 3, Tr. Ex. 1, p. 23). On January 11, 2006, both Dawn and C.S. report C.S. will get into trouble if she talks to or interacts with her mother when C.S. is with her father and stepmother. (Ct. Ex. 3, Tr. Ex. 1, p. 41). At that time, Dr. Shawchuck told Dawn to refrain from "venting negative talk about father or expectations that the children would carry messages between the parents". (Ct. Ex. 3, p. 61, LL. 13-20, and Tr. Ex. 1, p. 42).
[¶27] In December 2005, C.S. had "improved mood" and decreased anxiety and emotional upset after visiting her father 12 days. (Ct. Ex. 3, Tr. Ex. 1, p. 38). In that same month, Alan agreed to see a mediator with Dawn to work on parenting skills; Dawn refused. (Ct. Ex. 3, Tr. Ex. 1, pp. 35, 37, and 40). When Alan attended a January 2006 session, C.S. was "in remission" and "appeared visibly relieved, smiling, her facial muscles relaxed noticeably, and she began asking her father additional questions". (Ct. Ex. 3, p. 62 and Tr. Ex. 1, p. 43). In the final session during the first wave of counseling on February 22, 2006, C.S. was "happy" and denied "problems with worries and anxiety". (Ct. Ex. 3, Tr. Ex. 1, p. 44).
[¶28] Dawn took C.S. to eight additional counseling sessions between September 7, 2006, and March 14, 2007, without Alan's knowledge. (Ct. Ex. 3, p. 65, LL. 11-25, and Tr. Ex. 2; Docket #115, p. 15, para. ee). During that second wave of counseling, C.S. again "corroborated" Dawn's reports that C.S. was having difficulties visiting her father and with negative comments about her mother. (Ct. Ex. 3, Tr. Ex. 2, pp.1 and 3).
[¶29] On September 7, 2006, Dawn reported and C.S. corroborated that C.S. will get into trouble with her father if he finds out about C.S.'s counseling. (Ct. Ex. 3, Tr. Ex. 2, pp. 1-3). On October 18, 2006, C.S. reported and Dawn corroborated that Kathleen says mean things about Dawn and C.S. perceives father and stepmother are angry with Dawn. (Ct. Ex. 3, Tr. Ex. 2, pp. 5-6). On November 8, 2006, R.S. and Dawn reported Kathleen becomes angry when mom calls father's home while the children are in his care. (Ct. Ex. 3, Tr. Ex. 2, pp. 9-11). Dawn's handwritten notes of November 8, 2006, describe her private discussions with R.S. about the same issues he echoed in counseling. (Ct. Ex. 3, Tr. Ex. 2, p. 11; Docket #86, Ex. C, p. 6). On January 10, 2007, R.S. and C.S. reported they would get into trouble with their father about their complaints; and Dawn discussed C.S. being angry, upset, and emotional upon return from father's home. (Ct. Ex. 3, Tr. Ex. 2, pp. 15-17). On February 10, 2007, Dawn reported C.S. continued to express problems with stepmother and C.S. reported feeling upset, angry, and frustrated by visiting her father. (Ct. Ex. 3, Tr. Ex. 2, pp. 18-19). On March 14, 2007, Dawn told C.S. and R.S. she was bringing their father to court for changes in visitation; "[R.S.] is tearful, crying, with his head in his hands during discussion of mother's action to return to court" and R.S. stated, "it's going to make things worse." (Ct. Ex. 3, Tr. Ex. 2, pp. 20-21). During this visit "[C.S.] appears anxious, moving from her seat to another, frequently attempting to interrupt mother . . ." (Ct. Ex. 3, Tr. Ex. 2, p. 20). Notes of the last counseling session with Dr. Shawchuck reveal Dawn prompting C.S. to clarify for Dr. Shawchuck her fear that Alan will be angry at her if he learns of C.S.'s dislike for Kathleen. (Ct. Ex. 3, Tr. Ex. 2, p. 21, bottom of p.).
[¶30] On November 8, 2006, Dawn and Dr. Shawchuck discussed consulting an attorney. (Ct. Ex. 3, Tr. Ex. 2, p. 11). On November 29, 2006, Dr. Shawchuck discussed discontinuing counseling "due to parental obligation to inform noncustodial parent"; Dawn "strongly" disagreed with informing Alan and requested counseling notes to give to her attorney for litigation. (Ct. Ex. 3, p. 80, LL. 18-23; p. 182, LL. 13-17, and Tr. Ex. 2, pp. 13-14). Dr. Shawchuck sought a "professional consult" about discontinuing therapy because Alan was not informed but, Dawn convinced Dr. Shawchuck to counsel through March 14, 2007, the day Dawn filed her motion papers. (Ct. Ex. 3, Tr. Ex. 2, pp. 12 and 15-22). Dawn planned to use the children's statements to restrict Alan's visitation. (Ct. Ex. 3, Tr. Ex. 2, p. 15, para. 3). After Dawn filed her motion, she again sought to continue the children's counseling without informing Alan. (Ct. Ex. 3, pp. 87-88, and Tr. Ex.7, p. 6). C.S. repeatedly stated during counseling she wished her father would divorce Kathleen and remarry her mother. (Ct. Ex. 3, Tr. Ex. 1, p. 45 and Tr. Ex. 2, p. 2, para. 4 and p. 4, para. 4 and p. 6, para 2, and p. 10, bottom of p.). Dr. Shawchuck believed that a lot of C.S.'s statements "came from her desire for her father and stepmother to divorce". (Ct. Ex. 3, p. 137, LL. 21-25). She wrote, "Assessment suggests that feelings of sadness and dysphoria are contributed to by the wish that father and Kathleen get a divorce. It is likely that as the wish remains unfulfilled feelings of hopelessness, anger and dysphoria increase, as well as contributing to difficulty accepting and adjusting to father's marriage." (Ct. Ex. 3, Tr. Ex. 2, p. 5, para. 5).
[¶31] Dr. Shawchuck did not corroborate the truth of C.S.'s reports about Kathleen, Dr. Shawchuck relied on C.S.'s perception and "the desire (for her father to divorce) had an effect on what she was perceiving." (Ct. Ex. 3, pp. 142-143 and 154). Dr. Shawchuck explained that "[p]erceptions are perceptions. It's not that they're genuine and true. Perceptions are, you know, a belief for the way that we see things." (Ct. Ex. 3, p. 136). She concluded that C.S. was more sensitive to negativity about her mother because of her desire for her father to divorce Kathleen and that influenced C.S.'s perception. (Ct. Ex. 3, p. 184). C.S. "perceived" that her father and Kathleen were angry with her mother and that they were planning to get sole custody of R.S. and her, however, "her perception may not be consistent with the actual experience of what was going on." (Ct. Ex. 3, p. 76, LL. 6-8 and Tr. Ex. 2, p. 7, para. 4).
[¶32] Prior to his parent's divorce, R.S. began counseling with licensed psychologist Dr. Wenstrom for sleep problems and stomachaches attributed to "separation and divorce of parents". (Ct. Ex. 2, pp. 251-52). Both Dawn and Alan participated. (Ct. Ex. 2, pp. 238, 241, 244, 247, and 250). Dr. Wenstrom diagnosed R.S. with "adjustment disorder with mixed disturbance of emotions and conduct". (Ct. Ex. 2, p. 250). Stomachaches were also caused by stressors other than the divorce. (Ct. Ex. 2, p. 239, para. 1; pp. 244-45; ). In May of 2004, R.S. told Dr. Wenstrom that "if he told his mother something about his father, he felt that his mother would try to use this against his father, so he oftentimes did not share anything with either parent about the other". (Ct. Ex. 2, p. 248. para. 1). R.S. repeated this concern several times to Dr. Wenstrom. (Ct. Ex. 2, p. 245, para. 3 and p. 248, para. 3). R.S. reported to Dr. Wenstrom he "accepts whatever his mother tells him to do, even though he has other thoughts and feelings . . ..". (Ct. Ex. 2, p. 245, para. 3). R.S.'s last session with Dr. Wenstrom in September 2004 revealed R.S. "was not experiencing any significant anxiety or depressive symptoms" and R.S. was discharged from therapy services. (Ct. Ex. 2, p. 239, para. 1, p. 240, para. 3).
[¶33] R.S. again counseled from July 25, 2005, through March 29, 2006, in 15 sessions with clinical psychologist Dr. Meryl Willert while C.S. counseled with Dr. Shawchuck. (Docket #86, Ex. F; Docket #115, Ex. 2). On August 2, 2005, Dawn brought R.S. to Dr. Willert and the following was noted: "stepmom/mom tension" and "stepmom's mean voice messages left for mom + stepmom's (-) comments about her x-husband". (Docket #86, Ex. F, note 8/2/05). On August 12, 2005, R.S. resisted Dawn's attempts to "confront pt's suppression of stress & encourage disclosure". (Docket #86, Ex. F, note 8/12/05). On November 9, 2005, January 24, 2006, and February 22, 2006, Dr. Willert noted "(zero) somatic complaints or signs of anxiety", decrease "worry & dissatisfaction w/ parents & situation" and "denies any anxiety or issues". (Docket #115, Ex. 2, notes 11/9/05, 1/24/06, and 2/22/06). As of the evidentiary hearing, R.S. had not had a stomachache in Alan's care for over a year. (Tr., vol. I, p. 165, LL. 7-11).
[¶34] Dawn used Dr. Shawchuck's counseling notes to support her motion. (Docket #86, para. 25 and Ex. A and G; Docket #88, paras. 3-6).
[¶35] Dawn continued discussions with the children about Kathleen's and Alan's bad behavior after she filed her motion. (Ct. Ex. 2, p. 160; p. 162, para. 5; p. 163, para. 1; p. 165; paras. 1-3; p. 167, para. 1; p. 170; p. 186, para. 1). Dawn solicited information from the children as stated in her October 2007 email to Ms. Christianson: "(R.S.) heard at least part of the encounter on 9-26-07 between Kathleen, (C.S.), and Al. (R.S.) said something about it, and I asked is it true that Kathleen really called dad, as (C.S.) says, the b word? He said Kathleen yelled a word that rhymes with itching, not called him a B." (Ct. Ex. 2, p. 170, para. 1). Dawn explained how she questioned C.S. about calling Kathleen "mom" and C.S. did not want to visit Alan the next day. (Ct. Ex. 2, p. 170, para. 2). Dawn claims she "works very hard to avoid any negative discussion on her behalf of Alan and Kathleen." (Ct. Ex. 2, p. 267).
[¶36] Alan's expert witness was licensed clinical psychologist Dr. Stephen Timm who holds a doctorate degree of philosophy in clinical psychology; for 30 years Dr. Timm has provided psychotherapy for families regarding a variety of problems including parent child conflicts, depression, and anxiety; and Dr. Timm has rendered expert opinions in over 100 cases involving custody and visitation, several times being a court-appointed neutral. (Tr., vol. II, p. 6, LL. 11-22, Docket #114, Ex. A, p. 1). Dr. Shawchuck has practiced about half as many years as Dr. Timm and only four years in private practice, had not had her deposition taken before this proceeding, and had not testified in a court. (Ct. Ex. 3, pp. 5-7).
[¶37] Dr. Timm believed Dawn influenced the children's statements to Dr. Shawchuck, and he was concerned that counseling occurred without Alan's knowledge. (Tr., vol. II, p. 45, LL. 9-11). Frequently, Dr. Timm has dealt with therapy situations "where there is potential for litigation and there is litigation going on where one parent will bring the children in or want to bring the children in to me. And almost always when that's the case, the children are there to speak what they think that parent wants me to hear. . . . I won't agree to start the treatment with the children with only one parent's permission." (Tr., vol. II, p. 45, LL. 11-21). Dr. Shawchuck first refused to involve Alan because she was "contracted" by Dawn, but eventually realized she should not counsel the children without Alan's knowledge or involvement. (Ct. Ex. 3, Tr. Ex. 2, p. 1, para. 4; Tr. Ex. 7, pp. 5-6 and 8).
[¶38] In Ms. Christianson's experience, when a child blurts out negative remarks about a parent without being questioned, that indicates the child may be programmed to make statements. (Tr., vol. II, p. 136, LL. 2-22). When Dawn brought C.S. to counseling on October 18, 2006, Dr. Shawchuck wrote, "(C.S.) enters the therapy office and immediately begins describing an incident that recently occurred at father's house resulting in increased feelings of sadness and anxiety"; C.S. continued to describe bad things Kathleen said about Dawn. (Ct. Ex. 3, Tr. Ex. 2, p. 6, para. 1). Ms. Christianson did not rely upon Dr. Shawchuck's counseling notes because they were "tainted" by not involving both parents in the counseling process. (Tr., vol. II, p. 138, L. 19-p. 139, L. 3).
[¶39] Dr. Timm opined, "[C.S.] was being heavily influenced by her mother's perception of the situation, and that a lot of what she (C.S.) was sharing with Dr. Shawchuck was based on how she perceived her mother's feelings and opinions toward Kathleen." (Tr., vol. II, p. 46, LL. 5-9; Docket #114, para. 3.) ". . . [s]ome children are very sensitive to what each parent wants in a situation like this, and so they wax back and forth because they feel so caught in the middle, so they reflect the views and the feelings and the emotions of the parent that's present that's brought them to the visit." (Tr., vol. II, p. 46, L. 21-p. 47, L. 1). Dr. Timm did not believe Kathleen was continually berating Dawn in front of the children because R.S. and C.S. were comfortable around Kathleen. (Tr., vol. I, p. 49, L. 19-p. 50, L.18; Ct. Ex. 2, pp. 78-79 and 82-83 and 87).
[¶40] Dr. Timm stated that "there was not a systematic consistent attempt on [Kathleen's] part to badmouth C.S.'s mother" and Kathleen's frustrations were due to the ongoing conflict between Dawn and Kathleen. (Tr., vol. II, p. 47, LL. 2-15 and p. 47, LL. 16-20). The following exchange took place with Dr. Timm during the hearing:
Q.Now if [we] were to assume in this case that there is an outside professional opinion that the children have indicated they are uncomfortable when Kathleen and Dawn are together or when they are in each others' presence. And then if we were also to assume that Dawn has repeatedly approached Kathleen when [C.S.] is with Kathleen at games. Wouldn't that suggest that Dawn is instigating some sort of conflict?
. . . .
Q. And how would that influence your opinion in this case?
A.Well, that would influence my opinion in the sense that Kathleen is reacting or responding to Dawn's behavior as opposed to instigating the behavior herself."
(Tr., vol. II, p. 47, L. 21-p. 48, L. 11).
Q. In your observations or from what you have read prior to your giving your affidavit, do you have an opinion as to who is causing the conflict?
Q. And who is that?
A. I believe Dawn is the major instigator of the conflict.
Q. And why do you believe that?
A. Primarily because she's the one who continually brings up the issues that she has with Kathleen's behavior based on what she's hearing from C.S. primarily, and also from R.S.
Q. In reviewing Dr. Shawchuck's records, is it fair to state that there were numerous occasions where Dawn had discussions with the children regarding this alleged name calling by Kathleen?
Q. What did you think about that?
. . . .
Q. You had testified regarding Dawn's interactions with the children and the numbers of times that this discussion about the name calling, how do you believe that affected the children?
A. I think that affects the children's feelings about the situation. It makes it clear to them what that parent's perception is of the situation and reinforces that parent's perception of the situation.
(Tr., vol. II, p. 61, LL. 15-21; p. 63, LL. 5-12).
[¶41] Ms. Christianson agreed with Dr. Timm that Kathleen was not the primary instigator of conflict. (Tr., vol. II, p. 147, LL. 18-21). The following exchange occurred at hearing with Ms. Christianson:
Q. Let's make some assumptions. If the Court finds in this case that there is discord among Alan and Dawn, and Kathleen and Dawn, and if the Court finds that this discord is affecting the children, and if the Court further finds that Dawn has instigated the discord, would you agree that a change in custody from Dawn to Alan would be warranted?
A. I just really don't know how to answer that.
Q. Would your opinion change if you drew the conclusion that Dawn was instigating the discord that has been created?
Q. Yeah, I probably would have changed my opinion if I believed that she was the one initiating the discord.
(Tr., vol. II, p. 203, LL. 15-25).
[¶42] On numerous occasions Dawn approached Alan and Kathleen and the children in public upsetting the children. (Docket #117, paras. 3E, 3J, and 3K; Docket #115, Ex. 9; Tr., vol. II, p. 92, L. 10-p. 95, L. 18). Dawn approached C.S. four times when C.S. was with Kathleen at R.S.'s June 16, 2007, soccer tournament, which made C.S. uncomfortable and "crying". (Tr., vol. II, p. 96, L. 21-p. 97, L. 25; Docket #133, para. 2; Docket #145, paras. 9-16). Dr. Timm testified that "if a child knows two people are having conflict with one another, if they're in the same place at the same time, the child is going to be very uneasy in that situation". . . and it will "definitely create anxiety and discomfort in the child." (Tr., vol. II, p. 48, LL. 17-24). C.S. experienced discomfort when her mother and stepmother were both in the same place with her. (Ct. Ex. 2, p. 267).
[¶43] Kathleen's co-worker observed C.S. was happy and comfortable around Kathleen (Docket #109, para. 2). Another witness observed C.S. enjoyed being around Kathleen and talking about vacations, school and friends. (Docket #111, para 5). A mother attending the children's events observed Kathleen and C.S. "conversed, laughed and displayed signs of affection between themselves without reservation" and that Kathleen encouraged C.S. to go over and say "Hi" to Dawn. (Docket #134, paras. 2-3). Kathleen comforted and reassured R.S. after he spilled juice on a new sweatshirt and he was worried his mother would be mad. (Docket #113, para. 4). The children are not fearful, anxious or uncomfortable around Kathleen. (Docket #113, para. 6). C.S. is respectful of Kathleen and her father while in her father's care, and she is eager to do chores and be helpful around Alan's. (Docket #115, para. 4X, p. 14).
[¶44] When Ms. Christianson observed C.S., R.S. and Kathleen together, she noted there was "easy conversation" between them, they "laughed" together, "kids asked Kathleen's opinion and she asks them what they thought", "kids openly gave ideas", and "easy interaction between K, R, C". (Tr., vol. II, p. 191, LL. 5-13; Ct. Ex. 2, pp. 78-79 and 82). C.S. sat in Kathleen's lap, R.S. sat close to Kathleen more than once, and Kathleen gave R.S. a head rub. (Tr., vol. II, p. 192, LL. 8-23, Ct. Ex. 2, pp. 83 and 88). When C.S. commented "everyone is mean to me," Kathleen "tried to encourage her"; when R.S. teased C.S., Kathleen told R.S., "you be nice, (R.S.)". (Ct. Ex. 2, p. 81). When C.S. wanted to take the dog for a walk, she looked to Kathleen for guidance. (Ct. Ex. 2, p. 86, top of p.). When Alan and Kathleen's boys joined Kathleen, C.S. and R.S., "all kids & adults engaged in conversation". (Ct. Ex. 2, p. 86, bottom of p.). Ms. Christianson did not believe the interaction between Kathleen and the children was staged. (Tr., vol. II, p. 191, LL. 15-18).
[¶45] On March 14, 2007, when Dawn announced her court action she told the children she wanted "them [mom, dad, and kids] to go to family counseling so she and dad can find out all about what they think and feel, and all the things that happened that upset them, so she and dad can work on changing them", which is inconsistent with Dawn's actions to exclude Alan from counseling. (Ct. Ex. 3, Tr. Ex. 2, p. 21, para. 1; Docket #145, para. 23; Ct. Ex. 3, Tr. Ex. 2, p. 21, para. 2 and Ct. Ex. 3, p. 179, LL. 17-p. 180, LL.12). Dawn again told the children that she intended to "request counseling to insure their comfort and happiness at both homes." (Docket #100, para. 6). As late as April 5, 2007, Dawn instructed Dr. Shawchuck not to release counseling information to Alan. (Ct. Ex. 3, Tr. Ex. 7, pp. 12-13).
[¶46] Dr. Timm believed that Dawn had misled the children "by the way Dawn stated what she had done." (Tr., vol. II, p. 61. LL. 13-14). Dr. Timm viewed a DVD recording of Alan's discussion with R.S. and C.S. about the legal action. (Ex. P-19). The children were unaware they were being recorded. (Ct. Ex. 2, p. 67, para. 2). Dr. Timm concluded Alan's meeting with the children was "appropriate and helpful" because the children were old enough to be told the information, and Alan gave R.S. and C.S. factual information "to appreciate what was going on." (Tr., vol. II, p. 58, LL. 5-p.59, LL. 11).
[¶47] Dawn has repeatedly failed to inform Alan of the children's medical appointments, daycare and school information and extracurricular activities. (Docket #132, para 4, 5 and 6; Docket #115, para. J, pp. 42-42 and Ex. 17; Docket #145, Ex. A). After filing her motion, Dawn rescheduled a doctor's appointment for R.S. without informing Alan. (Tr., vol. I, p. 140, LL. 14-15). On several occasions, Dawn canceled doctor appointments made by Alan and prevented him from obtaining medical care for the children and taking the children to counseling. (Docket #115, para. K, p. 44-45 and Ex. 17).
[¶48] Alan and Dawn have agreed to enroll the children in several activities including soccer, basketball, baseball, confirmation, gymnastics, "Just for Kix"dance, Girl Scouts, and Sunday school. (Docket #115, para 4S, p. 11). Disagreements arose when Dawn enrolled either child in an activity on a night of Alan's visitation without first consulting him. (Docket #115, para 4S, p. 11, para. GG, p. 19).
[¶49] Dawn has been inflexible when Alan has requested a change in his visitation, and a dispute over clothing stemmed from Dawn's inappropriate purchases of clothing for C.S. (Docket #115, paras. 4R, 4S, 4GG). In 2005, after Alan notified Dawn of his extended and uninterrupted visitation as required (Judgment para. k, pp. 8-9). Dawn intended to take her one week of uninterrupted time during Alan's visitation time; and when Alan pointed this out, Dawn attempted to take one week of uninterrupted time as individual days.(Docket #115, p. 9, para. P and Ex. 10, 4/13-21/05 emails). Dawn refused to follow the Judgment for the 2005 Christmas break visitation, which prompted Alan to call the police for assistance. (Docket #115, para. B, pp. 36-37 and Ex. 11). In the spring of 2006, Dawn refused to allow Alan to have the children after school beginning spring break for his one-week vacation/trip (paragraph Hh of the Judgment). (Docket #115, para. C, p. 38 and Ex. 12). Dawn caused Alan to miss a day of visitation on Memorial Day weekend 2006. (Docket #115, para. E, pp. 38-39). In 2006, Dawn's resistence to follow the summer vacation schedule resulted in several communications between the parties. (Docket #115, para. D, p. 38 and Ex. 13). Dawn has refused to cooperate with Alan in changing visitation times when conflicts arise even though Alan has accommodated Dawn's requested changes. (Docket #115, para. H, p. 40 and Ex. 13,15 and 16). Dawn has taken the children from Alan's custody during his visitation without his permission. (Docket #115, para. I, pp. 41-42).
[¶50] When Alan informed Dawn about enrolling the children for less expensive health insurance, Dawn failed to respond. (Tr., vol. I, p. 165, L. 24-p. 166, L. 18). Dawn has repeatedly failed to cooperate by not giving Alan information about the children's out-of-pocket medical expenses for which Alan owes one-half. (Tr., vol. I, p. 167, L. 11-p. 168, L. 16 and Ex. D-13).
[¶51] Dawn has interfered with Alan's written and telephonic contact with the children. (Docket #115, para. M, pp. 46-47). Dawn has not informed Alan of the children's whereabouts when she has left the state with the children and taken the children out of school. (Docket #115, para. N, p. 47).
[¶52] R.S. does well in school, participates in many sports, loves to play with friends, loves his parents and stepmother, and has a good relationship with Alan's and Kathleen's extended families. (Tr., vol. I., p. 53, LL. 13-p. 55, L. 11; Ct. Ex. 2, p. 223). Alan's extended family is larger than Dawn's. (Tr., vol. I, p. 176, LL. 9-15).
[¶53] C.S. does well in school, participates in many activities, likes to socialize with friends, loves her parents and stepmother, and has a good relationship with Alan's and Kathleen's extended families. (Tr., vol. I., p. 55, L. 18-p. 57, L. 7). Dr. Shawchuck believed Alan was sincere when he told her that C.S. is "a happy, well-adjusted little girl" when C.S. is with Alan and Kathleen. (Ct. Ex. 3, p. 28, LL. 20-25).
[¶54] R.S.'s teachers described him as "happy", "talkative & interacts with me and his peers"; he is "energetic and upbeat"; "focused"; and "continues to do extremely well". (Ct. Ex. 1, p. 8, last para.; Ct. Ex. 2, pp. 261-63 and 266). C.S.'s teachers described her as "delightful personality", "polite", "respectful", "no problems with homework". (Ct. Ex. 1, p. 9, para. 2; Ct. Ex. 2, p. 279). Teachers report both children have a neat and clean appearance. (Ct. Ex. 1, p. 6, last para.).
[¶55] R.S. and C.S. are bonded to both parents, can go to either parent if they need to talk and C.S.'s relationship is equally positive toward both parents. (Ct. Ex. 1, p. 6, para. 1). Ms. Christianson did not uncover "declining (school) performance, untreated medical problems, abuse or neglect, behavioral problems, or recommendations that a modification is necessary in order to improve the children's physical or emotional health." (Ct. Ex. 1, p. 10 para. M).
[¶56] Two months before the hearing, Dawn reported that C.S. was anxious, withdrawn, and has "great difficulty sleeping in her own bed"; Alan "did not report this as an issue"; and C.S. stated she had "stomachaches". (Ct. Ex. 2, p. 267). On March 17, 2007, three days after Dawn informed the children of her court action, C.S. was observed at a basketball tournament "happy" and "excited" to see Kathleen and Alan. (Docket #94, Ex.1).
[¶57] C.S. saw Dr. Anand Kantak for animal-related allergies. (Ct. Ex. 2, pp. 271-72). After researching dogs and allergies, Alan got a small dog, "Molly," that does not shed and is allergy-friendly. (Tr., vol. I, p. 136, LL. 5-16, p.137, LL. 1-3). A "peak flow meter" measures C.S.'s breathing and an inhaler was prescribed to stabilize breathing if C.S. has an allergic reaction. (Tr., vol. I, p. 137, L. 13-p. 138, L. 6). Despite Molly's presence in Alan's home, C.S. had not used the inhaler in Alan's home; C.S.'s 8/29/2007 visit to Dr. Kantak revealed no breathing difficulties and C.S. participated in gymnastics and soccer without problems. (Tr., vol. I, pp. 137. LL. 4-6, p. 138, LL. 6-21; Ct. Ex. 2, p. 290 paras. 4 and 6). Ms. Christianson did not believe a dog in Alan's home was a major problem. (Tr., vol. II, p. 171, LL. 15-22).
[¶58] The Amended Judgment reduced Alan's time with the children by almost half. (Tr., vol. I, p. 49, LL. 9-14 and Ex. P-9). Alan proposed keeping the same 50-50 parenting time during the summer as during the school year to avoid confusion for R.S. and C.S. (Tr., vol. I, p. 155, LL. 7-15). The holiday schedule provided in the Amended Judgment is not well-defined to alleviate potential misunderstandings. (Tr., vol. I, p. 155, LL. 16-25).
[¶59] Alan enrolled in co-parenting therapy; Dawn did not, although she proposed it. (Tr., vol. I, p. 18, LL. 10-11 and p. 157, L. 15 - 22).
[¶60] Ms. Christianson did not believe the children were psychologically harmed by the discord between their parents. (Tr., vol. II, p. 145, LL. 19-22).
[¶61] Assessments of the children were conducted by two social workers, Peter Moynihan and Carolyn Meske, neither of whom conducted psychological testing; both relied upon interviews and records. (Ct. Ex. 2, pp. 222-225 and 267-270). Neither Mr. Moynihan nor Ms. Meske recommended changing custody or the parenting schedule; they both recommended co-parenting therapy and neither recommended immediate or continuing therapy for either child. (Ct. Ex. 2, pp. 224-25 and 270). Ms. Meske reported C.S. does not meet criteria for classification as "seriously emotionally disturbed" or "serious and persistent mental illness". (Ct. Ex. 2, p. 269, last para.). Moynihan reported that R.S. does not meet criteria for classification as "seriously emotionally disturbed". (Ct. Ex. 2, p. 224, summary).
STANDARD OF REVIEW
[¶62] A trial court's decision on custody or visitation is a finding of fact that will not be reversed on appeal unless it is clearly erroneous under N.D.R. Civ. P. 52(a). Gietzen v. Gabel, 2006 ND 153, 6, 718 N.W. 2d 552 (N.D. 2006); Zuger v. Zuger, 1997 ND 97, 36, 563 N.W. 2d 804 (N.D. 1997). Schiff v. Schiff, 2000 ND 113, 10, 611 N.W. 2d 191 (N.D. 2000). A finding of fact is clearly erroneous, although there is some evidence to support it, if the reviewing court, on the entire record, is left with a definite and firm conviction that a mistake has been made. Rueckert v. Rueckert, 499 N.W. 2d 863, 868 (N.D. 1993).
[¶63] The trial court's decision to deny appointment of a guardian ad litem will not be overturned unless the court has abused its discretion by acting in "an arbitrary, unreasonable, or unconscionable way". Hilgers v. Hilgers, 2002 ND 173, ¶ 7, 653 N.W.2d 79 (N.D. 2002). Similarly, a trial court's ruling on evidentiary issues pertaining to expert testimony is reviewed under the abuse-of-discretion standard. Flatt v. Kantak, 2004 ND 173, 15, 687 N.W. 2d 208 (N.D. 2004), (citing Rittenour v. Gibson, 2003 ND 14, 29, 656 N.W. 2d 691 (N.D. 2003)).
[¶64] Whether the facts support the trial court's conclusion is a question of law, and questions of law are fully reviewable on appeal. Gajewski v. Taylor, 536 N.W. 2d 360, 362 (N.D. 1995). Conclusions of law are not fortified by the clearly erroneous rule and are fully reviewable on appeal. In Interest of Kupperion, 331 N.W. 2d 22, 27 (N.D. 1983).
LAW AND ARGUMENT
I. The District Court erred when it determined it is in the best interests of R.S. and C.S. to remain in their mother's custodial care and reduced their father's visitation.
[¶65] The District Court's Findings of Fact do not support its Conclusions of Law maintaining sole custody with Dawn, reducing Alan's visitation, and terminating joint legal custody in Dawn's favor.
A. A material change of circumstances has occurred to modify custody.
[¶66] A modification of custody, legal or physical, after two years from the date of a prior custody order, requires a material change in circumstances and, if so, then a decision on whether modification will serve the best interests of the child. Dietz v. Dietz, 2007 ND 84, 9, 733 N.W.2d 225 (N.D. 2007); N.D.C.C. 14-09-06.6(6).
[¶67] North Dakota Century Code Section 14-09-06.6(6) provides, in pertinent part, the following:
The court may modify a prior custody order after the two-year period following the date of entry of an order establishing custody if the court finds:
a. On the basis of facts that have arisen since the prior order or which were unknown to the court at the time of the prior order, a material change has occurred in the circumstances of the child or the parties; and
b. The modification is necessary to serve the best interest of the child.
[¶68] A material change of circumstances involves "important new facts" unknown at the time of the initial custody order. In re Thompson, 2003 ND 61, ¶ 7, 659 N.W. 2d 864 (N.D. 2003). "A material change of circumstances can occur if a child's present environment may endanger the child's physical or emotional health or impair the child's emotional development." Selzler v. Selzler, 2001 ND 138, 21, 631 N.W.2d 564 (N.D. 2001).
[¶69] A material change in circumstances is demonstrated by establishing a prima facie case under N.D.C.C. ¶ 14-09-06.6(4). A moving party is entitled to an evidentiary hearing by alleging in affidavits sufficient facts which, if uncontradicted, would support a custody modification. Dietz, 2007 ND at ¶ 10. The opposing party may rebut a prima facie case by presenting counter affidavits alleging the moving party's facts are incredible or insufficient to justify modification. Id.
[¶70] In the instant case, Alan presented evidence to justify a material change in circumstances. Shortly after divorce, Dawn began a barrage of criminal complaints aimed at Kathleen that lasted two years, during which time Alan married Kathleen. When her allegations did not result in criminal prosecution, Dawn amassed police reports for a custody action. Repeatedly, Dawn approached Kathleen in public upsetting the children and causing Kathleen to demand Dawn cease her behavior. Dawn next took both children to a licensed psychologist and secreted this from Alan, intending to use the counseling record to get Alan's visitation supervised and get sole legal custody.
[¶71] Dawn influenced the children's statements and perceptions and orchestrated counseling to focus on allegations that Kathleen constantly bad-mouthed Dawn around the children. Dawn continually discuss allegations of Kathleen's negative behavior with the children and misled them about her court action.
[¶72] Dawn failed to cooperate with Alan to make major decisions for the children and to allow Alan to pay his share of the children's medical bills. She did not inform Alan of the children's many appointments and activities, and she enrolled them in activities during Alan's visitation without consulting him. Dawn was inflexible when Alan requested minor visitation changes and refused to follow the Judgment for holiday and summer visitation. Dawn took the children without Alan's permission while they were in his custody and interfered with Alan's communication with the children.
[¶73] The record contains sufficient evidence to find a material change of circumstances to warrant a change of custody.
B. The District Court erred in disregarding expert testimony of Dr. Stephen Timm.
[¶74] The District Court cannot arbitrarily disregard expert testimony; however, it may assign the weight to be given the expert's opinion and does not have to accept the opinion as conclusive. Brandt v. Brandt, 523 N.W. 2d 264, 266 (N.D. 1994). When expert testimony is relevant, the trial court should weigh the validity of the opinion and take it into consideration. Loll v. Loll, 1997 ND 51, ¶ 22, 561 N.W. 2d 625 (N.D. 1997).
[¶75] Alan's expert witness, Dr. Timm, is a well-known clinical psychologist who has testified many times in custody and visitation cases and whose opinion is respected in the legal community. See Mayo v. Mayo, 2000 ND 204, ¶¶ 23-25, 619 N.W.2d 631 (N.D. 2000) (court accepted Dr. Timm's testimony that parentification caused child emotional problems); In re T.T., 2004 ND 138, ¶17, 681 N.W.2d 779 (N.D. 2004) (Dr. Timm qualified as expert witness to testify on parental alienation).
[¶76] In the instant case, the evidence confirms harm to the children by conflict among the adults. Dr. Timm testified that Dawn was the primary instigator of the conflict, which created "anxiety and discomfort" in the children. He testified Dawn's numerous discussions with the children about the conflict influenced their negative statements about Kathleen to Dr. Shawchuck, which were repeated to Ms. Christianson, Ms. Meske and Mr. Moynihan. R.S. repeatedly stated he was afraid to tell his mother something about his father for fear it would be used against his father and that he accepts what his mother tells him to do.
[¶77] Dr. Timm's testimony discredited Dawn's allegations and Dr. Shawchuck's counseling notes because of Dawn's influence over the children and her instigation of conflict. Dr. Shawchuck's records created unresolved questions as to the validity, setting, and circumstances surrounding the children's statements and Dawn's repetition of the story echoed by the children. See Fast v. Mayer, 2005 ND 37, ¶ 10, 692 N.W.2d 138 (N.D. 2005).
[¶78] Dr. Shawchuck, Ms. Christianson and the evaluators had no collateral evidence to corroborate the truth of the children's reports about Kathleen, nor did they seek to determine the source of conflict. When a child speaks extremely positively about one parent, without support from collateral sources, and especially when the other parent wishes the child to have relatively little contact with the other, this may be a sign of parental alienation. Hynan, Interviewing Children in Custody Evaluations, 36 FAMCCR 466, 474 (1998).
[¶79] Dr. Shawchuck concentrated on the children's perceptions, which she admitted "may not be consistent with the actual experience of what was going on" and may have been driven by a desire for their father and stepmother to divorce.
[¶80] Dr. Timm did not believe Kathleen was continually berating Dawn in front of the children and he stated Kathleen was not the instigator but responded to Dawn's behavior. Ms. Christianson's testimony strengthened Dr. Timm's opinion because she did not believe Kathleen was the primary instigator. The police records, along with Kathleen's emails also indicate Dawn caused conflict. The District Court found (Finding No. 15) that Kathleen did not instigate conflict and that Dawn made "police reports and many calls to Fargo Police Officer Jessica Bergem complaining about Kathleen (Finding No. 18).
[¶81] There is no independent, unbiased evidence to prove that Kathleen "alienated or frustrated the children's love and affection for their mother", as set forth in Finding No.14, nor is there independent, unbiased evidence to prove that Kathleen's conduct or words "have caused (R.S.) and (C.S.) emotional distress", as Finding of Fact 16 purports.
[¶82] Dr. Timm's well-reasoned opinion is the only evidence logically and credibly identifying the primary instigator of conflict as Dawn.
[¶83] Not to give Dr. Timm's conclusions great weight is arbitrary and unreasonable and not the product of a rational mental process.
C. It is in the best interests of the children to change physical custody to Alan.
[¶84] Having concluded that a material change in circumstances has occurred, the court may modify custody to promote the best interests of the child. N.D.C.C. § 14-09-06.6(6)(b). The best interest factors outlined by N.D.C.C. 14-09-06.2 must be considered when awarding custody. Thompson v. Olson, 2006 ND 54, 10, 711 N.W. 2d 226 (N.D. 2006).
[¶85] Even though a happy, normal child has strong bonds to the custodial parent, a parent who violates court ordered visitation and shows "an intransigent attitude against visitation rights and alienating behavior can weigh against the child's best interests". Sweeney v. Sweeney, 2002 ND 206, at ¶ 12, 654 N.W. 2d 407 (N.D. 2002) (received on other grounds). This Court has emphasized "divorced parents may not use their children as pawns in their battles. Children benefit from healthy relationships with both parents; divorced parents must seek to facilitate such bonds". Hendrickson v. Hendrickson, 2000 ND 1, 25, 603 N.W.2d 896 (N.D. 2000). Denial of visitation and problems implementing visitation exchanges is sufficient evidence "to implicitly find a persistent and willful denial or interference with visitation" and consider modification of custody. Bladow v. Bladow, 2005 ND 142, ¶ 10, 701 N.W.2d 903 (N.D. 2005).
[¶86] The best interest factors under N.D.C.C. 14-09-06.2 pertinent to the instant case are as follows:
c. The disposition of the parents to provide the child with food, clothing, medical care, or other remedial care recognized and permitted under the laws of this state in lieu of medical care, and other material needs.
g. The mental and physical health of the parents.
k. The interaction and interrelationship, or the potential for interaction or 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. The court shall consider that person's history of inflicting, or tendency to inflict, physical harm, bodily injury, assault, or the fear of physical harm, bodily injury, or assault, on other persons.
m. Any other factors considered by the court to be relevant to a particular child custody dispute.
[¶87] In the instant case, the District Court's analysis suggests an equal weighting of the factors between Alan and Dawn except factors c and k.
[¶88] To suggest factor c is in Dawn's favor is speculative. Although C.S. has allergies, she has not had an allergic reaction to the dog or wood burning in Alan's home. This factor should be equally weighed.
[¶89] Regarding factor g, the District Court ignored Dawn's long history of mental health issues. Symptoms of "irritability, anhedonia and depression" and "helplessness" flared during Dawn's crusade to get Kathleen prosecuted. She was diagnosed with adjustment disorder chronic with mixed anxiety and depressed mood, and she continued to take Celexa for depression. (Ct. Ex. 1, pp. 7-8). After her unsuccessful attempt to prove Alan and Kathleen abused and neglected the children, Dawn began reporting Kathleen and Alan to police in 2004 when Dawn was counseling to "cope with her ex-husband and his new girlfriend" and "feelings of helplessness and that Alan was trying to control her". Dawn was obsessed with getting Kathleen prosecuted. In June 2005, when she learned that Kathleen would not be prosecuted, Dawn took the children to counseling without Alan's knowledge (Finding No. 19) and influenced them to make statements, which she used to support her motion. Dawn's testimony about a school referral for C.S. and informing Alan are not credible. Dawn continued to take anti-depressant medication while instigating conflict among the adults and misleading the children about her litigation intentions.
[¶90] Dawn used R.S. and C.S. as pawns to strike out at Alan over her frustration with Alan's marriage to Kathleen. See Judith S. Wallerstein et al., Surviving the Breakup 77 (1980) (stating young people are "particularly vulnerable to being swept up into the anger of one parent against the other" so as to align with that parent in attacking the other parent; "the embattled parent . . . initiates and fuels the alignment, not infrequently as he or she discovers the involvement of the other partner in a new relationship".
[¶91] It is unreasonable to ignore Dawn's troubled mental health that obviously affect her parenting resulting in harm to the children. Id. at 79 (stating "[p]arents who maintained alignments after the first year were disturbed, angry people, who had yet to reestablish their equilibrium or to respond constructively to the divorce. It is reasonable to suppose that for many parents these anger-driven campaigns warded off impending depressions. It is, therefore, no surprise that their intensity remained undiminished for a long time after separation."). Factor g favors Alan.
[¶92] The District Court's analysis of factor k ignores undisputed evidence that Dawn primarily instigated conflict and influenced the children's negative statements. She deceived the children about counseling and her legal intentions; encouraged them to talk about the conflict, and refused to refrain from discussing the subject with them. Dawn created anxiety in the children by bringing them to a psychologist, prompting them to repeat negative statements, announcing that she was suing their father, and creating conflict in public places. It is unconscionable to reward Dawn for her bad acts. Further, the District Court ignored the sibling-like relationship between C.S. and R.S. and Kathleen's sons, all four of which have lived together in Alan's household for over two years.
[¶93] Dawn denies her actions and shows no remorse. Inferences from the evidence can be drawn to find Dawn is paranoid about Alan's relationship with Kathleen and their relationship with the children, she is obsessed about ending their relationships, and she will continue to garner the children's support to accomplish her goal. See McDowell v. McDowell, 2001 ND 176, 24, 635 N.W.2d 139 (N.D. 2001) (the relevant inquiry is whether mental health issues adversely affect the ability to parent). Factor k favors in Alan.
[¶94] Regarding factor m, the District Court erred by not considering Dawn's primary role in instigating a dysfunctional and conflicted relationship. Dawn's hostile, antagonistic behavior harmed the children. Dawn's inflexibility, interference, and lack of cooperation created an unworkable relationship with Alan regarding visitation, and major-decision making for the children. Dawn's willful conduct was calculated to prevent Alan's meaningful relationship with the children. Factor m favors Alan.
1. Findings of Fact 12 and 13 are erroneous.
[¶95] The District Court erred in relying upon the reports of Ms. Meske and Mr. Moynihan. Neither are psychologists, nor did they conduct psychological evaluations. They relied upon four-year-old medical records (Ct. Ex. 2, p. 222, para. 1, and pp. 235-55), Dr. Shawchuck's invalid counseling notes (Ct. Ex. 2, p. 268), and the children's statements influenced by Dawn. Both counselors simply repeated the diagnoses of another professional without current collateral information or testing. Interestingly, both counselors recommended co-parenting therapy provided by their own firm, Solutions Behavioral, the firm recommended by Ms. Christianson and Dawn.
2. Finding of Fact 14 is erroneous.
[¶96] The District Court erred in finding Kathleen alienated or frustrated the children's love and affection for their mother because the children continue to have a loving relationship with their mother. Dawn's instigation actions, however, negatively impacted the children's relationship with their father by significantly reducing contact between father and children and causing them to engage in a negative campaign against him.
3. Finding of Fact 16 is erroneous.
[¶97] The District Court erred in finding that Kathleen's conduct or words caused the children emotional distress. Plaintiff's Exhibit #22 contained words directed at Dawn out of the children's presence. Kathleen's emails were not directed at nor seen by the children. The District Court unreasonably and arbitrarily relied upon "reports of (R.S.) and (C.S.)" to discredit Kathleen given the testimony of Dr. Timm and Ms. Christianson implicating Dawn's behavior. Emotional distress experienced by the children was caused by Dawn inciting conflict among the adults around the children, encouraging the children to talk about negative statements, and prompting their negative statements.
4. Finding of Fact 17 is erroneous.
[¶98] The District Court erred in finding that Alan's discussion with the children about the present court proceedings was not in the best interests of the children. Dr. Timm testified Alan's discussion with the children was "appropriate and helpful" because the children were old enough to be told factual information. To the contrary, Dawn misled the children about her legal intentions.
[¶99] While other remedies should be tried before changing custody in alienation and frustration of visitation cases, modification "may be the only method to correct the damage of a particularly stubborn and defiant custodial parent". Hendrickson v. Hendrickson, 1999 ND 37, ¶ 13, 590 N.W.2d 220 (received on other grounds). In the instant case, Dawn has defiantly interfered with Alan's visitation and instigated conflict harmful to the children. Ms. Christianson testified that if the court found that Dawn instigated conflict she would support a change in custody from Dawn to Alan.
[¶100] It is reasonable to conclude that custody modification is the only method to correct Dawn's harmful behavior.
II. The District Court erred when it determined it is in the best interests of the children for their mother to have sole legal custody.
[¶101] Joint legal custody requires both parents to cooperate in making major decisions for the children to safeguard the child's "physical, mental, emotional, and psychological well-being". Olson v. Olson, 361 N.W.2d 249, 251 (N.D. 1985). "Once the child of a divorce becomes the focus of conflict between parents, many irrational negative attitudes will begin to find expression and the ultimate loser will surely include the innocent child". Id.
A. Finding of Fact 5 is erroneous.
[¶102] It was erroneous to conclude that Alan caused the dysfunctional relationship with Dawn. Overwhelming evidence shows that Dawn has been the uncooperative parent, refusing to inform Alan of the children's appointments, daycare, school information and activities, rescheduled appointments without telling Alan, canceling appointments made by Alan, and preventing him from making appointments. While Alan and Dawn agreed about several activities for the children, disagreements arose when Dawn enrolled either child in an activity during Alan's visitation without consulting him.
[¶103] Dawn has been inflexible when Alan has requested a change in the visitation schedule. In 2005, after Alan notified Dawn of his extended and uninterrupted visitation, Dawn tried to take her uninterrupted time during Alan's visitation. Alan involved police in 2005 to get the children for Christmas break.
[¶104] In 2006, Dawn would not exchange the children after school for Alan's spring break visitation as specified by the Judgment, and Dawn caused Alan to miss a day of visitation over Memorial Day weekend. Dawn caused conflict in scheduling summer visitation 2006, insisting in one communication that she receive eight days of uninterrupted time and finally acknowledging she was only allowed seven days. Dawn's refusal to cooperate with Alan resulted in several communications.
[¶105] When Alan informed Dawn about less expensive health insurance for the children, she failed to respond. Dawn has not given Alan the information he needs to pay his one-half share of the children's out-of-pocket medical expenses. Dawn interfered with Alan's communication with the children and did not inform him of the children's whereabouts when she left the state taking them out of school.
[¶106] Dawn's motive to sabotage her 50/50 visitation agreement with Alan developed early because she was dissatisfied that "Al came up with the entire schedule, and I only agreed because my past attorney caved in". (Ct. Ex. 2, p. 221, last para.).
[¶107] The District Court terminated joint legal custody and gave Dawn final decision-making authority because it determined Dawn should remain the sole physical custodian of the children. This decision was not the product of a rational mental process.
[¶108] Assuming this Court determines Alan should be granted physical custody, he should also be granted sole legal custody of the minor children.
III. The District Court erred when it denied Alan Siewert's request for a guardian ad litem.
[¶109] In any action when either party has reason for special concern about the minor children, and in any contested custody or visitation action, either party may petition the court for appointment of a guardian ad litem to represent the children. N.D.C.C. § 14-09-06.4. Hanson v. Hanson, 2005 ND 82, ¶ 16, 695 N.W.2d 205 (N.D. 2005). A court may appoint a guardian ad litem at its own discretion, except one must be appointed, if an appointment is necessary to protect the best interests of the child involved. Id.; N.D.R.Ct. 8.7(c).
[¶110] Rule 8.7(c) of the North Dakota Rules of Court provides, in pertinent part, as follows:
(c) Criteria for Appointment. A guardian ad litem must be appointed if the court finds an appointment is necessary to protect the best interests of the child involved. In determining whether to appoint a guardian ad litem, the court shall consider among other factors: ....
(6) whether there is an allegation the child is in an unstable environment;
(8) whether the interests of the child and either or both parents are in substantial conflict;
(9) whether a guardian ad litem could provide the court with significant information not otherwise available or likely to be presented by the parents;
(10) whether there are any other areas of special concern which may impact the best interests of the child.N.D.R.Ct. 8.7(c).
[¶111] In the instant case, evidence existed at the time of the interim hearing that Dawn had repeatedly taken the children to Dr. Shawchuck without Alan's knowledge and for purposes of gathering documentation for her motion. There was also evidence that Dawn had influenced the children's negative statements, had caused conflict among the adults, and had used the children as pawns to further her litigation goals. Dawn interfered with Alan's visitation and refused to cooperate to make major decisions for the children. This evidence supports factors 6, 8, and 10 of Rule 8.7(c).
[¶112] Considering Dawn drew the children into the conflict, a guardian ad litem could provide the court with significant information that may not be likely presented by the parties.
[¶113] Alan respectfully requests that the Court reverse the District Court's order and grant Alan sole physical and legal custody of the children.
Dated this 21st day of May, 2008.
/s/ Susan L. Ellison Susan L. Ellison Attorney for Appellant ND ID #04774 MN ID #214012 OHNSTAD TWICHELL, P.C. 901 - 13th Avenue East P.O. Box 458 West Fargo, ND 58078-0458 TEL (701) 282-3249 FAX (701) 282-0825