Kershaw v. Finnson

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 165Jacob 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
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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).
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[¶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