Justia North Dakota Supreme Court Opinion Summaries

Gregory Krueger appealed a district court's order that denied his motion to enforce visitation along with the court's subsequent order that increased his child support obligation. Gregory and Deborah Krueger (now known as Bentz), were married in 1992 and divorced in 1999. They had one child, L.K., who was born in 1994. Upon divorce, Bentz was given custody of L.K., but Krueger maintained liberal visitation rights. Numerous motions, mostly concerned with adjustments in visitation and child support, were filed after the divorce. The district court amended its original judgment in 2003. This amended judgment allowed Bentz to retain custody of L.K. and restricted Krueger's visitation rights. This arrangement continued until 2007, when an incident occurred while L.K. was visiting Krueger. This incident allegedly turned physical, with both the 13-year-old L.K. and Krueger pushing each other. The relationship between L.K. and Krueger became strained, and all visitation apparently ceased following this incident. Krueger again moved to amend the judgment that would restore his visitation with L.K. In 2009, the district court ordered visitation should resume in the form of joint counseling sessions between L.K. and Krueger. After the new order was in place, the therapy sessions quickly broke down, and the unrestricted visitation contemplated in the order never materialized. Krueger again moved to amend the judgment and require visitation. The court concluded in its order denying Krueger's motion that there was "nothing for the Court to order" and refused to establish a visitation schedule between L.K. and Krueger. In a separate order, the district court amended its judgment to increase Krueger's child support obligation. The order did not specify how it arrived at its new net income figures, but rather stated its decision was based on a net monthly income and was made according to the State Child Support Guidelines. The Supreme Court affirmed the denial of Krueger's visitation motion, concluding the 2009 order remained in effect and restricted full visitation. The Court reversed the order increasing Krueger's child support obligation, because the district court did not make independent, specific findings regarding his net income and remanded the case for those findings to be made.

Dominique Smith appealed a district court judgment that granted Angie Martinez primary residential responsibility of the parties' child. Smith and Martinez have never been married to each other. They have one child, C.R.S., born in 2009. Shortly after C.R.S. was born, Martinez left North Dakota and moved to Texas. Smith initiated an action seeking primary residential responsibility of C.R.S. At the district court hearing, both parties alleged the other perpetrated incidents of domestic violence. Smith alleged Martinez had been violent, had a felony record, was unemployed, and had a "serious psychological history." Martinez alleged Smith caused the problems she had, and she has improved since leaving Smith. In its analysis of the factors to determine the best interests of the child, the district court included some findings on domestic violence between the parties, but the court did not address the domestic violence presumption. The court awarded Martinez primary residential responsibility with parenting time for Smith. Smith appealed, arguing the court erred by not analyzing whether the domestic violence presumption applied, and he argued the court erred in its findings on several other factors under the best interests of the child analysis. Upon review, the Supreme Court concluded the district court made inadequate findings on domestic violence between the parties and the presumption against awarding primary residential responsibility to the perpetrator of domestic violence. The Court reversed and remanded the case back to the district court to make the necessary findings.

F.T. (the Father) appealed a district court judgment that granted the State's petition to involuntarily terminate F.T.'s parental rights. In September 2009, the State filed a petition to terminate F.T.'s parental rights, alleging that T.T., a child, was deprived, neglected and abandoned. A hearing was held in December. F.T. moved to sequester the State's witnesses. The district court granted the motion, stating that the State's witnesses should remain in the hallway until called to testify and that Irene Dybwad, the representative from Grand Forks County Social Services, could stay in the courtroom. During a recess F.T.'s attorney observed Dybwad speaking with the State's witnesses. F.T. raised the issue to the court. The court gave F.T. the opportunity to question the witnesses that were seen talking in the hallway. The witnesses testified that no specific testimony was discussed, that they were told the State had a hard time qualifying a witness as an expert and that they were told to stick to their reports. F.T. moved for a mistrial. The district court granted the motion, explaining: "I guess I should have explained that sequestering means do not go--leave the courtroom and talk to any of the witnesses." Before the second hearing, F.T. moved to prevent the State's three witnesses involved in the mistrial from testifying at the second hearing, arguing that allowing the witnesses to testify would be unfair because the witnesses knew the questions F.T.'s attorney would ask. The district court denied F.T.'s motion, stating that the mistrial was granted based on Dybwad's misconduct and that F.T. would be able to cross-examine the three witnesses about the sequestration violation. Trial proceeded, and the district court eventually entered its judgment terminating F.T.'s parental rights. On appeal to the Supreme Court, F.T. argued that the district court abused its discretion by allowing the State's three witnesses involved in the sequestration violation to testify. Upon careful consideration of the record, the Supreme Court found that the district court's findings were supported by the record and were not clearly erroneous. The Court affirmed the termination of F.T.'s parental rights.

C.S. appealed from a juvenile court's order that found his child T.S., a delinquent and unruly child for committing disorderly conduct. At the hearing, the State presented evidence about the two alleged acts of disorderly conduct. The State asserted the first act of disorderly conduct involved a classroom incident. T.S.'s second-grade teacher testified that while attending class, T.S. started screaming words that were not making sense. T.S. later kicked the aide after a short "time out." The second act of disorderly conduct took place on a school bus. The bus driver testified that while driving the special needs bus, she heard T.S. scream the "N" word. She asked T.S. to go to the front of the bus but he refused and called her "a**hole" and "fat a**." The bus driver used physical force to restrain T.S. The juvenile court found T.S. a delinquent child and an unruly child in need of treatment and rehabilitation. The court concluded it was in the best interest of T.S. to be removed from the care of his father and be placed in the care, custody, and control of Stutsman County Social Services for one year. On appeal, C.S. argued that insufficient evidence was presented to support the juvenile court's findings of fact. Furthermore, C.S. asserted the juvenile court violated T.S.'s constitutional rights by failing to sua sponte conduct a competency hearing. Upon careful consideration of the juvenile court's record and the applicable legal authority, the Supreme Court concluded that the evidence presented was sufficient to support the court's finding. Furthermore, the Court concluded that the juvenile court did not violate T.S.'s due process rights by failing to sua sponte order a competency hearing. The Court affirmed the juvenile court's order.

R.A. appealed a juvenile court order that transferred its jurisdiction to the district court and the district court's order affirming the transfer. In March 2010, a delinquency petition and notice of intent to transfer to district court was filed, alleging R.A. committed the offenses of gross sexual imposition and terrorizing. The State alleged R.A. engaged in a sexual act with another juvenile, A.H., by compelling A.H. to submit by threat of imminent death or serious bodily injury. The State alleged R.A. sent A.H. text messages and other messages through the Internet that contained threats. After a hearing on the transfer request, the judicial referee found there was probable cause to believe R.A. committed the offenses and ordered the case be transferred to district court. R.A. requested a district court judge review the judicial referee's findings and order, arguing the evidence did not support a finding of probable cause, the judicial referee misinterpreted or misapplied the transfer statute because the statute requires the threats be to the victim and not another person, and his confrontation rights were violated. The district court affirmed and adopted the judicial referee's findings and order. On appeal to the Supreme Court, R.A. argued there was not sufficient evidence to support a finding of probable cause because the threats of physical harm were threats of future conduct and were not imminent. The Supreme Court concluded the juvenile court did not err in finding there was probable cause R.A. committed the offenses. The Court affirmed the lower courts' orders.

B.T., the father of L.T., appealed the juvenile court's order that adopted a judicial referee's findings of fact and order committing L.T. to the care of the Division of Juvenile Services following his admissions to gross sexual imposition and ingestion of a controlled substance. During his initial appearance and his pretrial conference, L.T. appeared with court-appointed counsel, but his parents were not separately represented. L.T. admitted to the charges in the State's petition following an amendment. The amendment reduced the felony level of the gross sexual imposition charge against L.T. which allowed him to avoid being tried as an adult. At the dispositional hearing, L.T. and his parents B.T. and H.T. were all represented by separate court-appointed counsel. There was much debate over mandatory registration of L.T. as a sexual offender, but the judicial referee concluded L.T. would be required to register. Neither L.T. nor his mother H.T. appealed the judicial referee's order committing L.T. to Juvenile Services and mandating his registration as a sexual offender. However B.T. appealed, requesting the juvenile court to review the judicial referee's order. B.T. argued the referee erred by not adequately advising B.T. that L.T. would be required to register as a sexual offender after admitting to the State's charges. Furthermore, B.T. contended it was unconstitutional for an indigent parent to be denied court-appointed counsel during the adjudicative phase of a juvenile delinquency proceeding. The juvenile court rejected B.T.'s arguments and adopted the judicial referee's findings and order. On appeal, B.T. argued the State Uniform Juvenile Court Act was unconstitutional, and his constitutional right to counsel was violated in the first of L.T.'s adjudicative hearings. Upon careful consideration of the trial record, the Supreme Court concluded that the right-to-counsel statute in North Dakota's Uniform Juvenile Court Act protects the constitutional rights of parents and juveniles. The Court affirmed the juvenile court's disposition of L.T.'s case.

G.K.T. appealed the district court's judgment granting T.L.T.'s motion for summary judgment and dismissing his complaint against T.L.T. and T.K. for intentional infliction of emotional distress. T.M.T. was born in 1997 to T.L.T. and T.K., the child's biological mother and father. T.L.T. and T.K. did not have a continuing relationship. G.K.T. moved to a house near T.L.T. and they became friends. In 1998, they began to live together with the child, and they married in 2000. G.K.T. adopted the child with T.K.'s consent in 2001. In 2007, G.K.T. and T.L.T. divorced; the court awarded T.L.T. primary residential responsibility and G.K.T. received parenting time. According to G.K.T., the divorce occurred because T.L.T. tried to re-establish T.K.'s relationship with the child. In 2008, T.L.T. began a new relationship with T.K., who began to spend time with the child. G.K.T. believed his relationship with his adopted child deteriorated because of the new relationship between T.L.T. and T.K, whom he sued for intentional infliction of emotional distress. He claimed T.L.T. and T.K. tried to "spoil and ruin [his] father-daughter relationship." G.K.T. asserted, as a result, that he "lost the love and affection of his daughter who is now acting in a hateful manner towards [him by] stating [he] is not her father." G.K.T. asserted that T.L.T. and T.K. acted outrageously, causing him to experience severe emotional distress. G.K.T. claimed to have lost sleep, experienced heartache and stress, and lost his job as a result of his emotional distress. On appeal to the Supreme Court, G.K.T. argued the district court erred in granting summary judgment in favor of T.L.T. and T.K. because it did not consider the differences between the elements of intentional infliction of emotional distress and the elements of alienation of affections in a parent-child relationship. He also argued the district court erred as a matter of law by failing to recognize intentional infliction of emotional distress as an actionable tort in North Dakota. Upon review, the Supreme Court concluded that G.K.T.'s his claims against T.L.T. and T.K. did not rise to the level of extreme and outrageous conduct. The Court affirmed the lower court's decision dismissing the case.

Ricky Becker appealed a divorce judgment that awarded his ex-wife Jill spousal support and established her child support obligation. Ricky and Jill Becker married in 1989 and had four children together. Mr. Becker is a plastic surgeon and has his own medical practice. Mrs. Becker worked part-time as a speech pathologist during the marriage, but there were times when she did not work outside the home and she has not worked outside the home since 2003. The parties owned a spa and hair salon. In 2008, Mr. Becker filed for divorce. The parties agreed Mr. Becker would have primary residential responsibility for the children and later agreed on property and debt distribution. The parties agreed Mrs. Becker would receive ownership of the spa. After a September 2009 hearing on the spousal support and child support, the court awarded Mrs. Becker spousal support of $7,000 per month for June 2010 through December 2012 and $6,000 per month thereafter until her death or remarriage. The court found Mr. Becker's net income was more than three times that of Mrs. Becker's income. Mr. Becker argued on appeal that the district court erred in calculating his income for purposes of deciding whether to award spousal support and calculating Mrs. Becker's child support obligation. He contended the court incorrectly interpreted the financial information and erred finding his income higher than it actually was. Upon review of the records presented at trial, the Supreme Court affirmed the spousal support award but reversed the child support decision. The Court remanded the case for recalculation of Mrs. Becker's child support obligation.

Plaintiff-Appellant Richard Varriano appealed an order denying his motion to terminate his child support and spousal support obligations. Mr. Varriano and Defendant-Appellee Denise Varriano were divorced in 2001. A provision in the divorce judgment awarded Mrs. Variano the sum of $4,000 per month, which combined the child support award and spousal support award. As each of the parties' four children reached the age of eighteen, the portion of the award constituting spousal support increased, and the portion of the award constituting child support decreased. The judgment also provided that Mrs. Varriano would no longer be eligible to receive spousal support if she "remarrie[d], is deceased, or cohabit[s] with a significant other." In February 2010, the state support disbursement unit sent a notice of arrears for $181,781.20 against Mr. Varriano. Mr.Varriano filed an "opposition to notice of arrears," claiming he did not owe any arrearage because Mrs. Varriano had violated the divorce judgment's spousal support provisions by cohabiting with a significant other. The district court found Mrs. Varriano had not cohabited with a significant other. On appeal, Mr. Varriano argued the district court erred in finding his former spouse had not cohabited and had not violated a provision in the divorce judgment award. Upon review, the Supreme Court concluded that the district court's findings were "not induced by an erroneous view of the law, there was testimony and evidence by Mrs. Varriano on the record to support the court's findings, and [the Court was] not left with a definite and firm conviction a mistake has been made." The Court affirmed the district court's decision.