Kulbacki v. Michael, 20130283.

Citation845 N.W.2d 625,2014 ND 83
Decision Date29 April 2014
Docket NumberNo. 20130283.,20130283.
CourtNorth Dakota Supreme Court
PartiesAmanda E. KULBACKI, Plaintiff and Appellant v. Nicholas W. MICHAEL, Defendant and Appellee.

OPINION TEXT STARTS HERE

Prior Version Held Unconstitutional

NDCC 14–09–05.1

Kari RaNae Winning, Grand Forks, ND, for plaintiff and appellant.

Nicholas W. Michael, self-represented, Terre Haute, IN, defendant and appellee; submitted on brief.

Troy Thomas Seibel, Assistant Attorney General, Office of Attorney General, Bismarck,ND, for amicus curiae State of North Dakota; submitted on brief.

CROTHERS, Justice.

[¶ 1] Amanda E. Kulbacki appeals from a district court judgment awarding Kulbacki a divorce from Nicholas W. Michael and granting Michael's mother grandparent visitation. Kulbacki argues that the district court erred in awarding grandparent visitation under section 14–09–05.1, N.D.C.C., that section 14–09–05.1, N.D.C.C., violates the United States and North Dakota Constitutions, that the district court erred in including a provision that a future termination of Michael's parental rights would not impact his mother's visitation rights and that the district court erred in denying Kulbacki's motion for attorney fees as a victim of domestic violence contemplated in section 14–09–29(4), N.D.C.C. We affirm the district court's determination that section 14–09–05.1, N.D.C.C., is constitutional and that grandparent visitation under section 14–09–05.1, N.D.C.C., would not automatically end upon termination of Michael's parental rights. We determine the district court unconstitutionally placed the burden on Kulbacki to show grandparent visitation was not in the child's best interests and made a legal error in determining attorney fees by impermissibly considering Kulbacki's return to Michael after she experienced domestic abuse at his hands. We reverse and remand.

I

[¶ 2] A May 18, 2012 judgment of divorce dissolved Kulbacki and Michael's ten-month marriage. Kulbacki and Michael have one daughter together. Kulbacki lives with their daughter in Arizona and does not plan to return to North Dakota. Michael was incarcerated on three counts of aggravated assault, one count of interfering with a telephone emergency call, three counts of violating a protection order, one count of felonious restraint, one count of animal mistreatment and one count of simple assault. Michael was sentenced to five years imprisonment, with three years suspended, in addition to five years supervised probation upon release. Michael was sentenced to 96 months incarceration in the federal system when he completes his state sentence.

[¶ 3] On September 28, 2012, Michael and his mother, Shawn Coulter, filed a motion for grandparent visitation under section 14–09–05.1, N.D.C.C. No motion was filed to intervene or join Coulter as a party. After failed mediation, hearings were held on March 26 and April 11, 2013 to address Michael and Coulter's motion for grandparent visitation and Kulbacki's motion to establish a parenting plan. Kulbacki did not attend either hearing. On April 8, 2013, Kulbacki initiated an action to terminate Michael's parental rights in the superior court for Maricopa County, Arizona.

[¶ 4] In addition to granting Kulbacki an absolute decree of divorce and legal custody of their child, the district court found section 14–09–05.1, N.D.C.C., constitutional and awarded Coulter one half-hour unsupervised grandparent visitation for each day Kulbacki is in Grand Forks. The district court determined Kulbacki failed to establish limited grandparent time would interfere with her relationship with her child and would be contrary to the child's best interests. The district court determined that if Michael's parental rights are terminated, the termination would not adversely affect the grandparent visitation accorded Coulter. The district court denied Kulbacki attorney fees under section 14–09–29(4), N.D.C.C. Kulbacki appealed.

II

[¶ 5] Kulbacki contends the district court erred in awarding grandparent visitation because Coulter was not a party to the action and she did not make a motion for grandparent visitation. Section 14–09–05.1(4), N.D.C.C., provides:

“An application for visitation rights under this section may be considered by the district court in conjunction with a divorce proceeding involving the parent of the minor child. If any district court of this state retains jurisdiction over the residential placement of the minor child or children by virtue of any prior proceedings, the rights conferred by this section may be enforced by the grandparents or the great-grandparents through motion under the prior proceeding. If no district court otherwise has jurisdiction, a proceeding to enforce grandparental rights may be brought against the parent having primary residential responsibility as a civil action and venued in the county of residence of the minor child.”

While our case law specifies a motion must be filed by a grandparent seeking visitation, our statute discusses an “application for visitation rights” and states such an application may be sought through a motion. N.D.C.C. § 14–09–05.1(4); R.F. v. M.M., 2010 ND 195, ¶ 18, 789 N.W.2d 723;Clark v. Clark, 2005 ND 176, ¶ 16, 704 N.W.2d 847;Alvarez v. Carlson, 474 N.W.2d 79, 82–83 (N.D.1991). The statute does not prescribe the precise form of request, but basic due process requires a written filing by a grandparent seeking to assert their visitation interests. N.D.C.C. § 14–09–05.1(4); St. Claire v. St. Claire, 2004 ND 39, ¶ 6, 675 N.W.2d 175 (“Generally, [p]rocedural due process requires fundamental fairness, which, at a minimum, necessitates notice and a meaningful opportunity for a hearing appropriate to the nature of the case.’ (citation omitted)). Whether by action, application, intervention, joinder, motion or petition, a grandparent seeking visitation must submit some sort of formal request so that custodial parental rights are protected. See Alvarez, 474 N.W.2d at 83 (“By requiring the grandparent to request visitation through a motion or a separate action, the statute protects the rights of the custodial parent or other interested party who may be adverse to the request, giving them notice and an opportunity to voice objection to the request.”). Here, Coulter was not a party to the action, but she filed a joint motion with Michael requesting grandparent visitation. Coulter's motion provided clear notice to Kulbacki of her request for grandparent visitation and gave Kulbacki an opportunity to respond. Coulter's motion satisfied minimum due process and statutory requirements for seeking grandparent visitation.

III

[¶ 6] Kulbacki argues section 14–09–05.1, N.D.C.C., is unconstitutional on its face and as applied. This Court upholds the constitutionality of a statute unless it is ‘clearly shown to contravene the state or federal constitution.’ Hoff v. Berg, 1999 ND 115, ¶ 7, 595 N.W.2d 285 (citation omitted). “Natural parents have a fundamental liberty interest in the care, custody, and management of their children.” Id. at ¶ 8 (citing Santosky v. Kramer, 455 U.S. 745, 753, 102 S.Ct. 1388, 71 L.Ed.2d 599 (1982)). [T]he Fourteenth Amendment “forbids the government to infringe ... ‘fundamental’ liberty interests ... unless the infringement is narrowly tailored to serve a compelling state interest.” ' Hoff, at ¶ 13 (citation omitted). This Court employs “strict scrutiny when analyzing statutory intrusions on parents' fundamental right to control their children's associations[,] and [o]nly compelling circumstances should justify governmental intervention to override parental choices for their children's associations beyond the immediate household.’ Id. at ¶ 16 (citation omitted).

A

[¶ 7] Kulbacki asserts section 14–09–05.1, N.D.C.C., violates the Fourteenth Amendment of the United States Constitution and Article I, Section 1 of the North Dakota Constitution. This Court in Hoff struck down a previous version of section 14–09–05.1, N.D.C.C., which created a presumption in favor of grandparent visitation. 1999 ND 115, ¶ 18, 595 N.W.2d 285. That version was unconstitutional because North Dakota does not have a compelling interest in presuming grandparent visitation is in the child's best interests. Id. at ¶¶ 17–19. The year after Hoff, the United States Supreme Court struck down a Washington grandparent visitation statute because it failed to give special weight to a parent's decision regarding grandparent visitation. Troxel v. Granville, 530 U.S. 57, 69, 120 S.Ct. 2054, 147 L.Ed.2d 49 (2000). The Supreme Court noted the Washington court unconstitutionally placed the burden on the custodial parent to show visitation was not in the children's best interests. Id. at 69–70, 120 S.Ct. 2054. After Troxel and Hoff,section 14–09–05.1(1), N.D.C.C., was updated to state: “The grandparents and great-grandparents of an unmarried minor child may be granted reasonable visitation rights to the child by the district court upon a finding that visitation would be in the best interests of the child and would not interfere with the parent-child relationship.”

[¶ 8] Kulbacki argues section 14–09–05.1, N.D.C.C., is unconstitutional because no provision exists for deference to a custodial parent's decisions regarding grandparent visitation. The current version of section 14–09–05.1(1), N.D.C.C., requires that grandparent visitation “would not interfere with the parent-child relationship.” [I]f a statute is capable of two constructions, one that would render it of doubtful constitutionality and one that would not, the constitutional interpretation must be selected.” Peterson v. Peterson, 1997 ND 14, ¶ 26, 559 N.W.2d 826. Several other courts have concluded similar statutory language gives deference to a parent's decision regarding grandparent visitation. See Currey v. Currey, 2002 SD 98, ¶ 13, 650 N.W.2d 273, 277 (South Dakota's grandparent visitation statute, requiring a court to find the grandparent visitation “would not...

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2 cases
  • gards to S.B. v. Bjerke, 20130321.
    • United States
    • North Dakota Supreme Court
    • 29 Abril 2014
    ...findings do not show the court gave the parents any favorable presumption or placed the burden of proof on the grandparents. See Kulbacki v. Michael, 2014 ND 83, ¶ 10, 845 N.W.2d 625. We conclude the findings were induced by an erroneous view of the law and are, therefore, clearly erroneous......
  • Kulbacki v. Michael
    • United States
    • North Dakota Supreme Court
    • 31 Julio 2017
    ..."district court improperly placed the burden on Kulbacki to show grandparent visitation was not in the child's best interests." Kulbacki v. Michael , 2014 ND 83, ¶ 10, 845 N.W.2d 625. We remanded to the district court to address whether Coulter could show visitation was in the child's best ......

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