Iakel-Garcia v. Anderson , 2021 ND 210 ( 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 210Priscilla Iakel-Garcia, Plaintiff and Appellee
v.
Richard Allen Anderson, Defendant and Appellant
No. 20210021
Appeal from the District Court of McLean County, South Central Judicial
District, the Honorable John W. Grinsteiner, Judge.
AFFIRMED IN PART, REVERSED IN PART, AND REMANDED.
Opinion of the Court by VandeWalle, Justice.
Tracy J. Lyson and Sarah Aaberg, Fargo, ND, for plaintiff and appellee;
submitted on brief.
Richard A. Anderson, self-represented, Jamestown, ND, defendant and
appellant; submitted on brief.
Iakel-Garcia v. Anderson
No. 20210021
VandeWalle, Justice.
[¶1] Richard Anderson appealed from a judgment granting the parties’
divorce, awarding Priscilla Iakel-Garcia primary residential responsibility and
sole decision-making of the parties’ minor child, and distributing the parties’
marital estate. Anderson argues the district court erred in awarding Iakel-
Garcia primary residential responsibility and sole decision-making because
the court should not have considered his criminal conviction. Further,
Anderson argues the court failed to divide the property equitably between the
parties. We affirm the district court’s judgment awarding Iakel-Garcia primary
residential responsibility and sole decision-making. We reverse the court’s
judgment distributing the marital estate and remand for further proceedings.
I
[¶2] Richard Anderson and Priscilla Iakel-Garcia married in 2008 and have
one minor child. In November 2019, Iakel-Garcia filed for divorce. In November
2020, a bench trial was held by reliable electronic means. N.D. Sup. Ct. Admin.
R. 52.
[¶3] At the time the action was commenced and throughout trial, Anderson was
incarcerated following guilty pleas of corruption and solicitation of a minor, luring
a minor by computer, and sexual assault and indecent exposure. The district court
took judicial notice of this criminal matter.
[¶4] In November 2020, the district court issued its judgment granting the
divorce, awarding Iakel-Garcia primary residential responsibility and sole
decision-making and distributing the parties’ marital estate. In February 2021,
Anderson filed this appeal.
II
[¶5] Anderson argues the district court erred in awarding Iakel-Garcia
primary residential responsibility of the parties’ minor child. He contends the
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court should not have considered his criminal conviction because the crime did
not involve the parties’ minor child.
[¶6] This Court’s review of a district court’s decision on primary residential
responsibility is limited:
A district court’s decisions on [primary residential responsibility] .
. . are treated as findings of fact and will not be set aside on appeal
unless clearly erroneous. A finding of fact is clearly erroneous if it
is induced by an erroneous view of the law, if no evidence exists to
support it, or if the reviewing court, on the entire evidence, is left
with a definite and firm conviction a mistake has been made.
Under the clearly erroneous standard of review, we do not reweigh
the evidence or reassess the credibility of witnesses, and we will
not retry a [primary residential responsibility] case or substitute
our judgment for a district court’s initial [primary residential
responsibility] decision merely because we might have reached a
different result. A choice between two permissible views of the
weight of the evidence is not clearly erroneous, and our deferential
review is especially applicable for a difficult [primary residential
responsibility] decision involving two fit parents.
Lessard v. Johnson, 2019 ND 301, ¶ 12, 936 N.W.2d 528 (quoting Grasser v.
Grasser, 2018 ND 85, ¶ 17, 909 N.W.2d 99) (quotation marks omitted).
[¶7] The district court must award primary residential responsibility to the
parent who will promote the child’s best interests and welfare. Dick v. Erman,
2019 ND 54, ¶ 7, 923 N.W.2d 137. In deciding primary residential
responsibility, the court must consider the relevant best interest factors under
N.D.C.C. § 14-09-06.2. Zuo v. Wang, 2019 ND 211, ¶ 11, 932 N.W.2d 360. “The
court is not required to make separate findings for each best interest factor,
but the court’s findings must contain sufficient specificity to show the factual
basis for the primary residential responsibility decision.” Lessard, 2019 ND
301, ¶ 13 (citing Rustad v. Baumgartner, 2018 ND 268, ¶ 4, 920 N.W.2d 465).
[¶8] Here, the district court considered the best interest factors and made
findings under each factor. Factors (a)-(h) favored Iakel-Garcia and factors (i),
(k), and (l) were inapplicable. The court noted under factor (j), there was
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testimony of aggression and suicidal threats by Anderson which favored Iakel-
Garcia, but the presumption was not triggered. It is clear from the court’s
findings that the fact that Anderson had been incarcerated since May 2019
weighed heavily in favor of awarding primary residential responsibility to
Iakel-Garcia. Because of his incarceration, the court noted Iakel-Garcia has
been solely providing for the minor child. The court disagreed with Anderson’s
argument that the criminal conviction was irrelevant because it did not involve
the parties’ minor child. The court stated the crimes involved sexual acts with
a minor child which was relevant to Anderson’s moral fitness under factor (f).
The court reasoned his conviction and incarceration has impacted the parties’
minor child because Anderson has not been available or involved in the child’s
life since May 2019. The court’s decision to award Iakel-Garcia primary
residential responsibility and sole decision-making was not clearly erroneous.
[¶9] Additionally, Anderson argues the district court erred because the judge
in this proceeding was biased due to being the same judge who oversaw his
criminal matter. Anderson did not raise the issue of judicial bias in the district
court. “The failure to raise the issue of judicial bias in the trial court precludes
our review on appeal.” Wisnewski v. Wisnewski, 2020 ND 148, ¶ 65, 945 N.W.2d
331 (quoting Wenzel v. Wenzel, 469 N.W.2d 156, 158 (N.D. 1991). Anderson
asserts the judge was biased because the judge was the same judge who
sentenced him in his criminal matter, however, he made no demand for change
of judge or request for recusal. To the extent Anderson alleges bias because the
judge repeatedly denied his motions, “[a]dverse or erroneous rulings do not, by
themselves, demonstrate bias.” Rath v. Rath, 2016 ND 105, ¶ 13, 879 N.W.2d
735. Because judicial bias was not raised in the district court, we will not
further address it for the first time on appeal.
III
[¶10] Anderson argues the district court’s property distribution is clearly
erroneous because it failed to divide the property equitably between the
parties.
[¶11] This Court’s review of a district court’s decision regarding the division of
marital property is:
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We review a district court’s determinations regarding the division
of property as findings of fact, and we will not reverse unless the
findings are clearly erroneous. A finding of fact is clearly erroneous
if it is induced by an erroneous view of the law, if there is no
evidence to support it, or if, although there is some evidence to
support it, on the entire evidence the reviewing court is left with a
definite and firm conviction a mistake has been made. A [district]
court’s findings of fact are presumptively correct, and we view the
evidence in the light most favorable to the findings.
Lorenz v. Lorenz, 2007 ND 49, ¶ 5, 729 N.W.2d 692 (internal quotation marks
and citations omitted).
[¶12] Section 14-05-24(1), N.D.C.C., requires a district court to make an
equitable distribution of the parties’ property and debts when a divorce is
granted. “[A] trial court must start with a presumption that all property held
by either party whether held jointly or individually is to be considered marital
property. The trial court must then determine the total value of the marital
estate in order to make an equitable division of property.” Hitz v. Hitz, 2008
ND 58, ¶ 11, 746 N.W.2d 732 (quoting Ulsaker v. White, 2006 ND 133, ¶ 13,
717 N.W.2d 567). “The court must include all of the parties’ assets and debts in
the marital estate and then consider the Ruff-Fischer guidelines to determine
an equitable distribution.” Willprecht v. Willprecht, 2020 ND 77, ¶ 19, 941
N.W.2d 556 (citing Swanson v. Swanson, 2019 ND 25, ¶ 6, 921 N.W.2d 666).
The Ruff-Fischer guidelines include the following factors:
[T]he respective ages of the parties, their earning ability, the
duration of the marriage and conduct of the parties during the
marriage, their station in life, the circumstances and necessities of
each, their health and physical condition, their financial
circumstances as shown by the property owned at the time, its
value at the time, its income-producing capacity, if any, whether
accumulated before or after the marriage, and such other matters
as may be material. The trial court is not required to make specific
findings, but it must specify a rationale for its determination.
Lee v. Lee, 2019 ND 142, ¶ 12, 927 N.W.2d 104 (quoting Schultz v. Schultz,
2018 ND 259, ¶ 27, 920 N.W.2d 483).
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[¶13] The district court did not determine the total value of the marital estate
before distributing the property and debts between the parties. The court’s
order indicates that each party is awarded every item of personal property in
his or her possession, every bank account in his or her name, retirement plans
provided by his or her employment, any life insurance policy on his or her life,
and a vehicle. However, the court did not list a value for any of these items.
The court distributed the marital home to Iakel-Garcia, however, no value is
listed and the legal description provided does not match the legal descriptions
of either the detached garage or house.
[¶14] After reviewing the record, the district court failed to determine the total
value of the marital estate before dividing the marital property. The judgment,
without any reference to the Ruff-Fischer guidelines, fails to list any value for
the parties’ assets. As a result, we are unable to determine whether the court
equitably distributed the marital estate because the court did not make
sufficient findings to permit appellate review. We reverse and remand to the
district court for further proceedings regarding the distribution of the marital
estate.
[¶15] The district court judge who presided over the original proceedings has
retired. Because a new judge will decide the issue on remand, the new judge
must “make a Rule 63, N.D.R.Civ.P., certification prior to conducting further
proceedings or, alternatively, order a new trial.” In re Estate of Bartelson, 2015
ND 147, ¶ 20, 864 N.W.2d 441 (quoting Smestad v. Harris, 2011 ND 91, ¶ 15,
796 N.W.2d 662).
IV
[¶16] Iakel-Garcia asserts that Anderson’s appeal is frivolous and requests
attorney’s fees and double costs. Iakel-Garcia argues that Anderson’s
continuous motions and filings are evidence of bad faith and that his
arguments on appeal do not relate to the district court’s order or judgment.
Iakel-Garcia does not request costs and attorney’s fees on the basis that she
has a need for them and the other spouse has an ability to pay. Berg v. Berg,
2018 ND 79, ¶ 13, 908 N.W.2d 705. We conclude Anderson’s appeal is not
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frivolous, and we decline Iakel-Garcia’s request for attorney’s fees and costs.
N.D.R.App.P. 38.
V
[¶17] We have considered the remaining issues and arguments raised by the
parties and conclude they are either unnecessary to our decision or are without
merit.
[¶18] We affirm the district court’s judgment awarding Iakel-Garcia primary
residential responsibility and sole decision-making, reverse the court’s
judgment distributing the marital estate, and remand for further proceedings.
[¶19] Jon J. Jensen, C.J.
Gerald W. VandeWalle
Daniel J. Crothers
Lisa Fair McEvers
Jerod E. Tufte
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