Muchow v. Kohler , 2021 ND 209 ( 2021 )

FILED
IN THE OFFICE OF THE
CLERK OF SUPREME COURT
NOVEMBER 26, 2021
STATE OF NORTH DAKOTA
IN THE SUPREME COURT
STATE OF NORTH DAKOTA
2021 ND 209Spencer Muchow (deceased), Plaintiff
v.
Mariah Kohler, Defendant and Appellee
and
Jason Alm and Andrea Alm, Intervenors and Appellants
No. 20210103
Appeal from the District Court of Cass County, East Central Judicial District,
the Honorable Tristan J. Van de Streek, Judge.
AFFIRMED.
Opinion of the Court by Crothers, Justice.
Kimberlie M. Larson, West Fargo, ND, for defendant and appellee.
Robert J. Schultz, Fargo, ND, for intervenors and appellants.
Muchow v. Kohler, et al.
No. 20210103
Crothers, Justice.
[¶1] Jason and Andrea Alm appeal from a district court order denying
grandparent visitation, arguing the district court erred in finding they did not
meet the statutory requirements for nonparent visitation. We affirm.
I
[¶2] The Alms were the parents of Spencer Muchow. Muchow and Mariah
Kohler had two children, S.J.M.A. and D.J.M.A. In 2018, the district court
awarded Muchow primary residential responsibility of the children. Muchow
died in 2019 and the children went into Kohler’s exclusive care.
[¶3] In 2020, the Alms filed a petition for visitation. After a hearing, the
judicial referee denied the Alms’ petition. The Alms requested district court
review. The district court adopted the referee’s findings, concluding it was not
proven that the Alms had a significant emotional bond with their
grandchildren and that denial of visitation would harm their grandchildren.
The district court found Kohler was acting in her children’s best interest and
could allow the Alms visitation if she so decided.
II
[¶4] The district court reviews a judicial referee’s decision de novo. N.D. Sup.
Ct. Admin. R. 13, § 11(b). The district court judge’s written order supersedes
the referee’s findings and order. N.D. Sup. Ct. Admin. R. 13, § 10(a). Thus, this
Court reviews the district court’s order. Id.
[¶5] A district court’s decision on visitation is a finding of fact and will not be
reversed unless clearly erroneous. Berg v. Berg, 2002 ND 69, ¶ 4, 642 N.W.2d
899. “A finding of fact is clearly erroneous only if it is induced by an erroneous
view of the law, if no evidence exists to support it, or if, upon review of the
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entire evidence, we are left with a definite and firm conviction that a mistake
has been made.” Id.III
[¶6] The Alms argue the district court’s findings regarding nonparent
visitation are clearly erroneous because this Court should have a definite and
firm conviction that a mistake has been made.
[¶7] North Dakota’s Uniform Nonparent Custody and Visitation Act
(“UNCVA”) governs nonparent visitation rights. N.D.C.C. ch. 14-09.4. The
district court may order visitation if the petitioner proves: (1) a substantial
relationship with the child, and (2) the denial of visitation would result in harm
to the child. N.D.C.C. § 14-09.4-03(1)(a)(2). A petitioner also must prove
visitation is in the best interest of the child. N.D.C.C. § 14-09.4-03(1)(b). To
obtain an order for visitation, a petitioner must prove each requirement. Here,
the harm to child requirement is dispositive.
[¶8] “Harm to child” means a “significant adverse effect on a child’s physical,
emotional, or psychological well-being.” N.D.C.C. § 14-09.4-01(5). Because the
UNCVA is a uniform act, we apply a statutory command to seek uniformity
with other enacting states by, among other things, considering the official
comments. N.D.C.C. § 1-02-13. Although the UNCVA comments indicate
testimony from a mental health professional is not required to show a harmful
effect, the comments also state a petitioner must show visitation is necessary
to prevent harm. UNIF. NONPARENT CUSTODY AND VISITATION ACT §§ 2, 4 cmt.
(2018). Thus, the burden was on the Alms to prove by clear and convincing
evidence that denial of visitation would result in harm to the children.
N.D.C.C. § 14-09.4-04.
[¶9] The Alms contend the death of the children’s parent is a significant factor
when considering the harm to a child. They cite Keenan v. Dawson, where the
Michigan Court of Appeals upheld the district court’s grant of grandparent
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visitation after a two-year-old child’s mother died. 739 N.W.2d 681 (Mich. Ct.
App. 2007).
[¶10] At the evidentiary hearing in Keenan, the grandparents presented
testimony from themselves and a clinical psychologist. 739 N.W.2d at 683. The
father presented evidence from a different psychologist. Id. The grandparents’
psychologist testified the child would not have memories of his deceased
mother because of his age, so it would be vital to have extended family involved
in the child’s life. Id. at 684. The father’s psychologist declined to opine whether
the child would be at risk of harm if he did not see his grandparents. Id. The
district court found the grandparents proved the father’s denial of access to the
child would create a substantial risk of harm. Id. at 685. In affirming the
district court’s decision, the Michigan Court of Appeals noted “this was not
merely a case where the trial court concluded that ‘grandparenting is good,
therefore it should occur.’” Id. at 688. “[The district court] also did not merely
second-guess the [father’s] decision because it thought grandparenting time
was generally a good thing for children.” Id. Rather, the district court
considered “all the testimony about the harms that a young child can suffer
when a parent dies and that part of the family is ‘cut off ’ from the child[.]” Id.[¶11] Unlike in Keenan, no expert testimony was presented here. The Alms
both testified they believed it would be harmful to the children if they were not
allowed visitation. The district court found the Alms routinely spent time with
the children prior to their father’s death. However, the court also found the
Alms did not establish exactly how denial of visitation would have a significant
adverse effect on the children’s well-being. Therefore, the court concluded harm
warranting court interference was not established.
[¶12] Upon review of the evidence and the district court’s findings, we are not
left with a definite and firm conviction a mistake was made. Berg, 2002 ND 69,
¶ 4. Thus, the court’s findings were not clearly erroneous. Because the court
did not err in determining one of the statutory requirements for nonparent
visitation, we need not address the others.
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IV
[¶13] We have considered the remaining arguments made by the parties and
conclude they are either without merit or unnecessary to our decision. The
order is affirmed.
[¶14] Jon J. Jensen, C.J.
Gerald W. VandeWalle
Daniel J. Crothers
Lisa Fair McEvers
Jerod E. Tufte
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