Voigt v. Nelson , 2020 ND 113 ( 2020 )

Filed 06/02/20 by Clerk of Supreme Court
IN THE SUPREME COURT
STATE OF NORTH DAKOTA
2020 ND 113
George M. Voigt, Plaintiff and Appellant
v.
Brenna M. Nelson, Defendant and Appellee
No. 20190285
Appeal from the District Court of Cass County, East Central Judicial District,
the Honorable Susan J. Solheim, Judicial Referee.
AFFIRMED.
Opinion of the Court by McEvers, Justice.
Joshua Nyberg, Fargo, ND, for plaintiff and appellant.
Tasha M. Gahner, Fargo, ND, for defendant and appellee.
Voigt v. Nelson
No. 20190285
McEvers, Justice.
[¶1] George Voigt appeals from a judgment establishing paternity and
primary residential responsibility. On appeal, Voigt argues the district court’s
award of primary residential responsibility and decision making authority for
non-emergency healthcare decisions was clearly erroneous and the court
abused its discretion by adopting the recommendations from a biased
parenting investigator. We affirm.
I
[¶2] George Voigt and Brenna Nelson were never married, but have one
daughter, S.M.V., born in 2013. Voigt filed a complaint to establish paternity
and parental responsibility in October 2018. In March 2019, Voigt sought
interim relief, requesting equal residential and decision making responsibility.
In April 2019, the district court ordered that the parties have joint residential
responsibility and joint decision making on an interim basis. A trial was held
on July 23, 2019. At trial, Voigt requested joint and equal residential
responsibility and decision making authority. Nelson requested primary
residential responsibility and decision making authority as determined by the
court.
[¶3] The district court made findings of fact, including findings regarding the
best interests factors under N.D.C.C. § 14-09-06.2(1), and entered an order for
judgment. The court found two factors favored Nelson, one factor favored
Voigt, and the remaining factors were either equally favorable to each of them,
were neutral, or did not apply. The court found Voigt was S.M.V.’s father,
which was not disputed. The court also found S.M.V. has attention-deficit
hyperactivity disorder (ADHD) and noted the key dispute between the parties
was the appropriate treatment for this diagnosis. The court awarded Nelson
primary residential responsibility and decision making authority for non-
emergency healthcare decisions. Voigt received parenting time and joint
decision making in other aspects.
1
II
[¶4] Voigt argues the district court clearly erred by adopting the
recommendations from a biased parenting investigator.
The district court is not required to follow a custody
investigator’s recommendation and has the discretion in deciding
what weight to assign to the investigator’s conclusion. Rather, the
district court should take a custody investigator’s report into
consideration, but the court must come to its own conclusion.
Marsden v. Koop, 2010 ND 196, ¶ 13, 789 N.W.2d 531. The court has discretion
in determining the weight to assign to a custody investigator’s conclusions. Id.
at ¶ 8. Therefore, we review whether the court abused its discretion when
considering the parenting investigator’s report.
[¶5] Voigt argues the district court adopted the parenting investigator’s
report as its own, and the report is inaccurate. Voigt does not state how or in
what way the court adopted the report. The court did follow the
recommendation to award Nelson primary residential responsibility.
However, Nelson points out several instances where the court did not follow
the parenting investigator’s report, including the amount of parenting time
Voigt received. Judges are not ferrets, and we will not engage in an unassisted
review of the record in support of a party’s position. Coughlin Constr. Co., Inc.
v. Nu-Tec Indus., Inc., 2008 ND 163, ¶ 9, 755 N.W.2d 867. The court did not
abuse its discretion by adopting some of the parenting investigator’s
recommendations.
[¶6] In terms of inaccuracy, Voigt argues the district court’s findings and the
investigator’s report imply he does not accept S.M.V.’s diagnosis because he
called S.M.V.’s ADHD “borderline” and points to a doctor’s report also using
the phrase “borderline.” The court heard testimony from several witnesses,
including Voigt, about the use of the term “borderline” to describe S.M.V.’s
diagnosis. The court is in the best position to determine credibility of the
witnesses, and we will not reweigh the evidence on appeal.
2
[¶7] Voigt also argues the parenting investigator is biased because she is a
single mother of a child with ADHD. Rule 8.6, N.D.R.Ct., governs parenting
investigators and incorporates the code of conduct. Morris v. Moller, 2012 ND
74, ¶ 14, 815 N.W.2d 266. The code of conduct provides a parenting
investigator should aggressively strive to achieve professional independence:
A parenting investigator shall preserve professional independence
in the discharge of the investigator’s duties. An investigator
should act in accordance with the law, free from all other influence,
rendering investigative services based upon the investigator’s best
knowledge. An investigator should avoid any impairment of
independence and must not permit professional standards to be
compromised by external pressure.
N.D.R.Ct. App. G.
[¶8] The code of conduct also provides a parenting investigator should
aggressively strive to achieve objectivity:
When providing investigative services, a parenting investigator
shall adhere to the facts. Facts should be presented in as neutral
and clear a manner as possible. The facts should speak for
themselves, and conclusions and analysis should not involve
exaggeration, adjectival assistance, or other editorial
overemphasis.
N.D.R.Ct. App. G.
[¶9] A review of the record reflects Voigt did not object to the admission of the
investigator’s report or to her testimony. Because Voigt did not object to the
parenting investigator’s testimony and did not move to strike the investigator’s
report on the basis of alleged bias, we will not address it further on appeal. We
do not consider issues not presented to the trial court. Estate of Brandt, 2019
ND 87, ¶ 32, 924 N.W.2d 762. The district court did not abuse its discretion
considering the testimony and report of the parenting investigator.
3
III
[¶10] We have considered Voigt’s other arguments and conclude the district
court did not clearly err in its analysis of N.D.C.C. § 14-09-06.2(1)(b) and (c).
As to those issues, we summarily affirm under N.D.R.App.P. 35.1(a)(2). We
affirm the judgment establishing paternity and primary residential
responsibility.
[¶11] Lisa Fair McEvers
Gerald W. VandeWalle
Jerod E. Tufte
Daniel J. Crothers
Jon J. Jensen, C.J.
4