Kershaw v. Finnson , 2022 ND 165 ( 2022 )


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  •                                                                                 FILED
    IN THE OFFICE OF THE
    CLERK OF SUPREME COURT
    SEPTEMBER 1, 2022
    STATE OF NORTH DAKOTA
    IN THE SUPREME COURT
    STATE OF NORTH DAKOTA
    
    2022 ND 165
    Jacob Dalles Kershaw,                                   Plaintiff and Appellee
    v.
    Shelby Lynn Finnson,                                Defendant and Appellant
    and
    State of North Dakota,                        Statutory Real Party in Interest
    No. 20210355
    Appeal from the District Court of Nelson County, Northeast Central Judicial
    District, the Honorable Donald Hager, Judge.
    AFFIRMED.
    Opinion of the Court by McEvers, Justice.
    Pamela F. Coleman, Grand Forks, ND, for plaintiff and appellee.
    Sarah M. Kyte, Grand Forks, ND, for defendant and appellant.
    Kershaw v. Finnson, et al.
    No. 20210355
    McEvers, Justice.
    [¶1] Shelby Finnson appeals from a judgment awarding primary residential
    responsibility of the parties’ minor child to Jacob Kershaw. She claims the
    district court’s findings are unsupported by the record; the court’s parenting
    time decision is unreasoned; the court erred when it allowed Kershaw to call
    an undisclosed witness for purposes of rebuttal; and the presiding judge erred
    because he failed to certify himself as familiar with the record. We affirm the
    judgment.
    I
    [¶2] The parties lived together but never married. Their child was born in
    2019. On August 6, 2020, two days after they separated, Kershaw sued for
    primary residential responsibility of the child. Along with his complaint,
    Kershaw filed an application for an ex parte interim order requesting
    temporary custody. The next day, on August 7, 2020, Finnson filed an ex parte
    petition for a domestic violence protection order. The parties’ filings resulted
    in two conflicting orders from different judges granting temporary custody of
    the child to the other parent. In the primary residential responsibility case,
    Judge Hager entered a temporary ex parte order awarding custody of the child
    to Kershaw. In the protection order case, Judge Knudson entered a temporary
    protection order granting custody to Finnson. Judge Knudson later amended
    his protection order to remove the provision granting custody to Finnson.
    [¶3] On August 28, 2020, for reasons not clear from the record, Judge
    McCarthy held a combined hearing on both cases and found Kershaw had
    engaged in domestic violence. He explained he would enter a protection order
    and he discussed the terms. He then addressed the primary residential
    responsibility dispute:
    I will now turn to that and the interim order. After hearing
    the testimony, I am going to amend[] the interim order and grant
    Shelby primary residential responsibility and primary decision
    1
    making responsibility of the minor child . . . subject to Jacob’s right
    to reasonable parenting time.
    Judge McCarthy entered a six-month protection order granting temporary
    custody of the child to Finnson. On September 16, 2020, Judge McCarthy
    subsequently entered an interim order in the primary residential
    responsibility case. The order notes the matter was heard “in conjunction with
    a hearing on Shelby’s application for a Domestic Violence Protection Order.”
    The order awarded Finnson temporary primary residential responsibility and
    Kershaw parenting time every other weekend.
    [¶4] On August 18, 2021, Judge Hager held a two-day trial on the issues of
    primary residential responsibility and child support. Each party testified in
    addition to their parents or step-parents. Judge Hager also allowed Kershaw
    to call an undisclosed private investigator after Finnson rested her case. Judge
    Hager entered an order for judgment granting primary residential
    responsibility to Kershaw. He awarded Finnson parenting time every other
    weekend and an additional week each month during the summer.
    II
    [¶5] Finnson argues the district court erred by allowing Kershaw’s counsel to
    ask her questions on cross-examination that were beyond the scope of
    Finnson’s direct testimony. She claims Kershaw did so for the sole purpose of
    calling his private investigator as an undisclosed rebuttal witness. Finnson
    asserts this amounts to an unfair surprise and the court should have granted
    her a continuance.
    [¶6] We review a district court’s decision on evidentiary matters for an abuse
    of discretion. State v. Peltier, 
    2016 ND 75
    , ¶ 3, 
    878 N.W.2d 68
    . “A trial court
    abuses its discretion when it acts arbitrarily, unconscionably, or unreasonably,
    or when its decision is not the product of a rational mental process.” 
    Id.
    (quoting Davis v. Killu, 
    2006 ND 32
    , ¶ 6, 
    710 N.W.2d 118
    ). A party must make
    a specific objection at the time evidence is offered to give opposing counsel an
    opportunity to argue the objection and the court the opportunity to fully
    understand the objection and rule appropriately. May v. Sprynczynatyk, 2005
    
    2 ND 76
    , ¶ 26, 
    695 N.W.2d 196
    . “Under N.D.R.Ev. 103, a district court’s decision
    whether to allow or to exclude evidence will not be reversible error unless the
    party objected to the court’s decision and the party’s substantial rights were
    affected.” Command Ctr., Inc. v. Renewable Res., LLC, 
    2021 ND 59
    , ¶ 22, 
    956 N.W.2d 755
    .
    [¶7] Finnson objected when Kershaw sought to introduce evidence concerning
    an online dating account because it was beyond the scope of her direct
    testimony. She also objected near the beginning of the private investigator’s
    testimony when Kershaw sought to offer his surveillance notes. She did not
    object to the line of questioning that the investigator was called to rebut. Nor
    did she request a continuance or object generally to the investigator’s
    testimony based on unfair surprise. Absent a specific objection on these
    evidentiary issues, we hold the district court did not abuse its discretion.
    III
    [¶8] Finnson argues the district court erred when it awarded primary
    residential responsibility to Kershaw. Finnson challenges the court’s findings
    regarding domestic violence. She also asserts the court erred by uncritically
    adopting Kershaw’s proposed findings, which she claims are unsupported by
    the record.
    [¶9] A district court’s primary residential responsibility decision is a finding
    of fact that we analyze under the clearly erroneous standard of review. Iakel-
    Garcia v. Anderson, 
    2021 ND 210
    , ¶ 6, 
    966 N.W.2d 892
    .
    A finding of fact is clearly erroneous if it is induced by an erroneous
    view of the law, if no evidence supports it, or if this Court, on the
    entire record, is left with a definite and firm conviction a mistake
    has been made. Under the clearly erroneous standard, we do not
    reweigh the evidence nor reassess the credibility of witnesses, and
    we will not retry a custody case or substitute our judgment for a
    district court’s initial primary residential responsibility decision
    merely because we might have reached a different result.
    Vetter v. Vetter, 
    2020 ND 40
    , ¶ 8, 
    938 N.W.2d 417
     (internal quotations and
    citations omitted).
    3
    [¶10] The district court must award primary residential responsibility of a
    child to the parent who will promote the child’s best interests and welfare.
    Boldt v. Boldt, 
    2021 ND 213
    , ¶ 7, 
    966 N.W.2d 897
    . When making its
    determination, the court must consider the N.D.C.C. § 14-09-06.2(1) best
    interest factors, which are:
    a.    The love, affection, and other emotional ties existing
    between the parents and child and the ability of each parent to
    provide the child with nurture, love, affection, and guidance.
    b.    The ability of each parent to assure that the child receives
    adequate food, clothing, shelter, medical care, and a safe
    environment.
    c.   The child’s developmental needs and the ability of each
    parent to meet those needs, both in the present and in the future.
    d.    The sufficiency and stability of each parent’s home
    environment, the impact of extended family, the length of time the
    child has lived in each parent’s home, and the desirability of
    maintaining continuity in the child’s home and community.
    e.   The willingness and ability of each parent to facilitate and
    encourage a close and continuing relationship between the other
    parent and the child.
    f.     The moral fitness of the parents, as that fitness impacts the
    child.
    g.    The mental and physical health of the parents, as that
    health impacts the child.
    h.    The home, school, and community records of the child and
    the potential effect of any change.
    i.     If the court finds by clear and convincing evidence that a
    child is of sufficient maturity to make a sound judgment, the court
    may give substantial weight to the preference of the mature child.
    ...
    4
    j.    Evidence of domestic violence . . . .
    k.    The interaction and inter-relationship, or the potential for
    interaction and inter-relationship, 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.
    l.    The making of false allegations not made in good faith, by
    one parent against the other, of harm to a child.
    m.    Any other factors considered by the court to be relevant to a
    particular parental rights and responsibilities dispute.
    A
    [¶11] Finnson argues the district court erred by finding there was no credible
    evidence of domestic violence and declining to apply the statutory domestic
    violence presumption.
    [¶12] Under N.D.C.C. § 14-09-06.2(1)(j), the district court must consider
    evidence of domestic violence when determining parental rights and
    responsibilities. Domestic violence, as defined by N.D.C.C. § 14-07.1-01(2),
    includes:
    physical harm, bodily injury, sexual activity compelled by physical
    force, assault, or the infliction of fear of imminent physical harm,
    bodily injury, sexual activity compelled by physical force, or
    assault, not committed in self-defense, on the complaining family
    or household members.
    When the court finds there is “one incident of domestic violence which resulted
    in serious bodily injury or involved the use of a dangerous weapon or there
    exists a pattern of domestic violence,” a rebuttable presumption arises against
    awarding primary residential responsibility to the culpable parent. N.D.C.C.
    § 14-09-06.2(1)(j). The district court “may consider, but is not bound by, a
    finding of domestic violence in another proceeding under chapter 14-07.1.” Id.
    5
    [¶13] Here, ruling from the bench in the protection order proceeding, Judge
    McCarthy found Kershaw had engaged in domestic violence. He explained:
    “I’m specifically speaking about the incident where the bottle was slapped to
    the floor and Shelby was grabbed by the hair or the bun on her head and her
    head or hair pulled.” Judge Hager took judicial notice of the protection order
    proceeding in the primary residential responsibility case, but he found there
    was not “any credible evidence of domestic violence in this case, nor one
    incident involving serious bodily injury or use of a weapon, nor a recent pattern
    of domestic violence.”
    [¶14] Finnson claims this case is like Wessman v. Wessman, 
    2008 ND 62
    , 
    747 N.W.2d 85
    , holding a district court erred when it did not address findings of
    domestic violence in a prior case. There, in a protection order proceeding, the
    court found a husband had perpetrated domestic violence against his wife. Id.
    at ¶ 3. In a subsequent divorce proceeding, a different court awarded the
    parties equal residential responsibility of their minor children. Id. at ¶ 11.
    The divorce court took judicial notice of the protection order case, but it found
    there was not sufficient evidence to trigger the factor j domestic violence
    presumption. Id. at ¶¶ 17, 20. We reversed and remanded. Id. at ¶ 25. We
    noted the divorce court did not address two specific findings of domestic
    violence made by the protection order court. Id. at ¶ 21. We explained that
    the divorce court was not bound by those findings, but “because the court took
    judicial notice of the prior domestic violence proceedings and there is testimony
    relating to the alleged sexual assaults, the court must at least make specific
    findings addressing whether these two alleged incidents constituted domestic
    violence. . . .” Id. at ¶ 22.
    [¶15] Unlike Wessman, the district court in this primary residential
    responsibility case specifically addressed the finding of domestic violence made
    in the protection order proceeding. The court noted Finnson’s statements
    about the incident were contradictory, and it found her testimony about the
    alleged incident unpersuasive. To the extent Finnson argues the court erred
    because it did not consider the finding of domestic violence from the protection
    order case, we conclude her argument is without merit.
    6
    [¶16] We also hold the court’s findings under factor j are not clearly erroneous.
    At trial, Kershaw claimed he never assaulted Finnson or threatened her.
    Finnson contradicted Kershaw’s testimony claiming there were several
    physical altercations between the parties. The parties’ family members also
    provided conflicting accounts. Kershaw’s family testified he was not an
    aggressive person and they were shocked at the allegations against him.
    Finnson’s family testified Kershaw was controlling and had a temper. “This
    Court defers to the district court’s ability to judge the credibility of witnesses,
    and resolves contradictory testimony in favor of affirmance.” City of West
    Fargo v. Medbery, 
    2021 ND 81
    , ¶ 15, 
    959 N.W.2d 568
    . We conclude the court’s
    findings under N.D.C.C. § 14-09-06.2(1)(j) are not clearly erroneous.
    B
    [¶17] Finnson claims the district court’s findings under a number of other best
    interest factors are clearly erroneous.        She asserts the district court
    uncritically adopted Kershaw’s proposed findings, which amounts to reversible
    error.
    [¶18] North Dakota Rule of Court 7.1(b) allows district courts to assign
    preparation of proposed findings of fact and conclusions of law to the parties.
    We disapprove of courts adopting wholesale or verbatim, proposed findings and
    conclusions. Estate of Albrecht, 
    2020 ND 27
    , ¶ 9, 
    938 N.W.2d 151
    ; In re M.B.,
    
    2006 ND 19
    , ¶ 11, 
    709 N.W.2d 11
    . Nor should litigants use proposed findings
    as an advocacy tool. Cty. of Sargent v. Faber, 
    2022 ND 155
    , ¶ 29, --- N.W.2d --
    - (McEvers, J., concurring). Parties must prepare proposed findings in a
    manner that accurately portrays the evidence presented at trial. See
    N.D.R.Civ.P. 11(b) (presenting a document to the court requires certification
    that its factual contentions have evidentiary support). However, a court’s
    wholesale adoption of proposed findings is not reason alone to reverse its
    decision. In re M.B., at ¶ 11. We will uphold adopted findings if they
    adequately explain the rationale for the court’s decision and are not clearly
    erroneous. Estate of Albrecht, at ¶ 9.
    [¶19] The district court adopted, at times verbatim, many of the findings
    prepared by Kershaw. Finnson specifically takes issue with the court’s findings
    7
    regarding the child’s health, which she argues are contradicted by the medical
    records. The court found Finnson’s care for the child resulted in the child
    becoming ill and subject to infections. We agree with Finnson that the medical
    records she presented characterize the child, during the relevant period, as
    normal, well-nourished, well-developed, happy, and healthy.          However,
    Kershaw presented photographic evidence and testimony that indicated the
    child had prolonged diaper rashes, illnesses, and developmental regression.
    On this record, we hold the court’s findings concerning the child’s health are
    not clearly erroneous.
    [¶20] Finnson also challenges the district court’s findings concerning, among
    other issues, her ability to care for the child, her home environment, her
    willingness to facilitate a relationship between Kershaw and the child, her
    moral fitness, and whether Kershaw made false allegations against her. As
    Finnson points out, a number of the court’s findings are inconsistent with the
    trial transcript. For example, the court found: “There was no testimony Jacob’s
    home environment was unsafe.” However, Finnson specifically testified she
    was concerned for the child’s safety because a dog in the residence “has
    attacked people.” The court found Finnson resides in a two-bedroom
    apartment. But Finnson testified she has a four-bedroom house. The court
    found Finnson “claims to not have depression or anxiety.”               Finnson
    unequivocally admitted to having anxiety. The court found Finnson’s own
    family did not support her allegations concerning Kershaw’s anger issues.
    However, Finnson’s mother testified she was concerned about Kershaw’s
    “temper and the alcohol.” The court found the private investigator testified
    Finnson left the child “unattended for nearly fifty minutes, leaving [the child]
    on top of a picnic table near a busy roadway . . . .” The private investigator
    actually testified the child was unattended for “30 to 40 seconds,” and the child
    was on top of a table “at one point.”
    [¶21] These inconsistencies are concerning. Many of these questionable
    findings were included in the findings Kershaw proposed. Kershaw’s counsel
    apparently bears some responsibility for these inaccuracies. We are mindful
    the court’s focus while conducting a hearing or trial may at times be drawn
    more towards a witness’s demeanor than to the exact details of the testimony.
    8
    We reiterate our disapproval of indiscriminate adoption of a party’s proposed
    findings. In this case, we are not convinced the inconsistencies Finnson has
    identified require reversal. The parties presented conflicting evidence on
    nearly every issue. It is clear from the district court’s order that it found the
    accounts of Kershaw, his family members, and the private investigator more
    credible than those of Finnson and her family. Had we been present to observe
    the witnesses as they testified, we may have reached a different conclusion.
    However, on this record, we conclude the court’s primary residential
    responsibility determination is not clearly erroneous.
    IV
    [¶22] Finnson argues the district court erred when it awarded parenting time.
    She asserts the court’s decision to award her one week of additional parenting
    time during each summer month is inadequate and unreasoned.
    [¶23] Under N.D.C.C. § 14-05-22(2), the district court must award parenting
    time in a manner that “will enable the child to maintain a parent-child
    relationship that will be beneficial to the child, unless the court finds, after a
    hearing, that such rights of parenting time are likely to endanger the child’s
    physical or emotional health.” The court must award parenting time based on
    the best interests of the child and not preferences of the parents. Eikom v.
    Eikom, 
    2022 ND 91
    , ¶ 7, 
    974 N.W.2d 387
    . A court’s decision on parenting time
    is a finding of fact that we review under the clearly erroneous standard of
    review. Taylor v. Taylor, 
    2022 ND 39
    , ¶ 8, 
    970 N.W.2d 209
    .
    [¶24] Finnson claims this case is like Dyle v. Dyle, 
    2012 ND 248
    , 
    825 N.W.2d 245
    , reversing a district court’s parenting time decision that did not include
    extended parenting time in the summer. The court awarded primary
    residential responsibility to the father. Id. at ¶ 3. The father’s proposed
    parenting plan requested the mother be allowed extended parenting time
    during the summer. Id. at ¶ 18. The court declined to do so without
    explanation. Id. at ¶ 19. We reversed and remanded for reconsideration and
    a reasoned explanation. Id. We noted that absent a reason for denying
    extended summer parenting time, some form of it is routinely awarded. Id.
    9
    [¶25] Unlike Dyle, the district court granted Finnson one additional week of
    parenting time during each summer month over Kershaw’s objection. Kershaw
    requested Finnson receive minimal supervised parenting time—specifically no
    more than two hours each week. Kershaw additionally requested Finnson
    complete parenting classes and obtain a mental health evaluation before she
    receive any unsupervised parenting time. The district court addressed
    Kershaw’s recommendation and determined the evidence did not support such
    a restrictive plan. We are not convinced the court’s decision is unreasoned.
    Based on our review of the record, we conclude the district court’s award of
    parenting time is not clearly erroneous.
    V
    [¶26] Finnson argues her right to due process was violated because Judge
    Hager did not certify himself as familiar with the record.
    [¶27] North Dakota Rule of Civil Procedure 63 requires a successor judge to
    certify him or herself as familiar with a case’s record in certain circumstances.
    It provides:
    If a judge conducting a hearing or trial is unable to proceed, any
    other judge may proceed upon certifying familiarity with the
    record and determining that the case may be completed without
    prejudice to the parties. In a hearing or a nonjury trial, the
    successor judge must, at a party’s request, recall any witness
    whose testimony is material and disputed and who is available to
    testify again without undue burden. The successor judge may also
    recall any other witness.
    Interpretation of a court rule presents a question of law that is fully reviewable
    on appeal. PHI Fin. Servs. v. Johnston Law Office, P.C., 
    2016 ND 114
    , ¶ 17,
    
    881 N.W.2d 216
    . We apply our established methods of statutory construction
    and look to the language of the rule to determine its meaning. In re
    Disciplinary Action Against Feland, 
    2012 ND 174
    , ¶ 20, 
    820 N.W.2d 672
    .
    [¶28] Finnson claims Judge Hager was required to certify himself as familiar
    with the record because different judges presided over the protection order
    proceedings and the interim hearings in this case. We are not convinced.
    10
    “Rule 63 applies to a trial or hearing that has been commenced and is not
    completed by the judge.” Kautzman v. Kautzman, 
    2003 ND 140
    , ¶ 10, 
    668 N.W.2d 59
    ; see also Hilgers v. Hilgers, 
    2006 ND 23
    , ¶ 14, 
    709 N.W.2d 343
    (holding there was no Rule 63 violation because the hearing had not
    commenced when the successor judge was assigned to the case). If a judge is
    unable to adequately familiarize him or herself with a case based upon the
    record, the appropriate course of action is to conduct a new hearing or trial.
    Weigel v. Weigel, 
    1999 ND 55
    , ¶ 9, 
    591 N.W.2d 123
    . Here, Judge Hager was
    not a successor judge. The case was initially assigned to him, he presided over
    the trial from beginning to end, and he made findings based on the evidence
    the parties presented. Rule 63 certification is not required when a different
    judge conducted a hearing or entered an interlocutory order in a case. We
    conclude Finnson’s arguments concerning N.D.R.Civ.P. 63 are without merit.
    VI
    [¶29] The judgment is affirmed.
    [¶30] Jon J. Jensen, C.J.
    Gerald W. VandeWalle
    Daniel J. Crothers
    Lisa Fair McEvers
    Jerod E. Tufte
    11