Alvarez v. Carlson, 940094

• Decision Date: 02 December 1994
• Docket Number: No. 940094,940094
• Citation: 524 N.W.2d 584
• Parties: Mary Jane ALVAREZ, f/k/a Mary Jane Carlson, f/k/a Mary Jane Pecka, Plaintiff and Appellee, v. Steven Robert CARLSON, Defendant and Appellant. Civ.
• Court: North Dakota Supreme Court

Page 584

524 N.W.2d 584

Mary Jane ALVAREZ, f/k/a Mary Jane Carlson, f/k/a Mary Jane

Pecka, Plaintiff and Appellee, v. Steven Robert CARLSON, Defendant and Appellant.

Civ. No. 940094.

Supreme Court of North Dakota.

Dec. 2, 1994.

Thomas E. Merrick (argued), Paulson & Merrick, Jamestown, for plaintiff and appellee.

Michael L. Gjesdahl (argued), Fargo, for defendant and appellant.

MESCHKE, Justice.

Steven Carlson appeals from an order denying his motion to amend the child custody placement of a divorce decree. We affirm, but remand for clarification of the visitation schedule.

Mary Alvarez and Steven were divorced in Hawaii on April 27, 1988. Mary received custody of their two children, Daniel and Christine. On July 2, 1988, Steven kidnapped the children and kept them secreted from Mary for over nine months. Authorities finally located Steven and the children in Colorado when Steven had a traffic accident. Steven was extradited to Hawaii, where he pleaded no contest to a criminal charge of custodial interference.

The children were returned to Mary, who moved to North Dakota. In November 1989 Steven asked the local North Dakota trial court to change the children's custody to him. Daniel, then ten years old, expressed his preference to live with Steven, but the court concluded that Daniel was too young to express an intelligent preference. Because the visitation schedule in the Hawaiian divorce decree was unworkable when the parents lived in different states, the court modified the decree, awarding the parents joint legal custody. Mary was given primary physical custody in North Dakota through the school year, and Steven was given primary physical custody in Colorado from June 1 to August 20 of each year. Steven was granted visitation on certain holidays and at "any special time" when he returned to North Dakota. Steven was also granted a fifteen-minute telephone visit on each Sunday, Tuesday, and Thursday from September through May. Mary appealed the amended decree and, in Alvarez v. Carlson, 474 N.W.2d 79 (N.D.1991), we reversed the grandparent visitation and otherwise affirmed.

Steven again moved for change of custody in September 1993, asserting that circumstances had changed since the prior modification, that Daniel is now old enough to express an intelligent preference, and that Mary has repeatedly attempted to frustrate Steven's visitation with the children. The court appointed a guardian ad litem for the children. Following a hearing, the trial court concluded that Steven had failed to show changed circumstances warranting a change of custody and denied the motion. Steven appealed.

I

Steven argues that the trial court erred in refusing to let Steven's counsel examine the guardian ad litem with leading questions. The parents stipulated to appointment of the guardian ad litem, and she was directed to make a recommendation to the court after interviewing both parents, the children, and others. Steven's counsel called the guardian ad litem as a witness and sought to examine her with leading questions. The trial court sustained Mary's objection that counsel could not lead his own witness.

The use of leading questions is governed by NDREv 611(c):

Leading Questions. Leading questions should not be used on the direct examination of a witness except as may be necessary to develop the witness' testimony. Ordinarily, leading questions should be permitted on cross-examination. Whenever a party calls a hostile witness, an adverse party, or a witness identified with an adverse party, interrogation may be by leading questions.

Steven argues that, although he called the guardian ad litem, he was allowed by rule and statute to cross-examine her. NDREv 706(a) says:

Appointment. The court, on motion of any party or its own motion, may enter an order to show cause why expert witnesses should not be appointed, and may request the parties to submit nominations. The court may appoint any expert witnesses agreed upon by the parties, and may appoint expert witnesses of its own selection.... A witness so appointed shall advise the parties of the witness' findings, if any; the witness' deposition may be taken by any party; and the witness may be called to testify by the court or any party. The witness is subject to cross-examination by each party, including a party calling the witness.

Because a guardian ad litem is not necessarily an expert, we do not decide in this case whether this evidence rule applies.

However, NDCC 14-09-06.3 specifically allows a party to call and cross-examine any person designated by the court to investigate and report on custody:

Custody investigations and reports--Costs.

1. In contested custody proceedings the court may, upon the request of either party, or, upon its own motion, order an investigation and report concerning custodial arrangements for the child. The court shall designate a person or agency responsible for making the investigation and report, which designees may include the county social service board, public health officer, school officials, and any other public agency or private practitioner it deems qualified to make the investigation.

* * * * * *

3. The court shall mail the investigator's report to counsel and to any party not represented by counsel at least thirty days before the hearing. The investigator shall make available to any such counsel or party the complete file of data and reports underlying the investigator's report and the names and addresses of all persons whom the investigator has consulted. A party may call the investigator and any person whom the investigator has consulted for cross-examination at the hearing. A party may not waive the party's right of cross-examination before the hearing.

Section 14-09-06.3 thus clearly and unambiguously authorized Steven to call the guardian ad litem as a witness and to cross-examine her with leading questions.

The court's conclusion that leading questions were inappropriate because the guardian ad litem was Steven's witness was erroneous. Steven's counsel, however, did not cite Section 14-09-06.3 or any other supporting authority to the trial court.

We conclude that the trial court's erroneous ruling does not require reversal. "Error may not be predicated upon a ruling which admits or excludes evidence unless a substantial right of the party is affected...." NDREv 103(a) (part). NDRCivP 61 adds:

No error in either the admission or the exclusion of evidence and no error or defect in any ruling or order or in anything done or omitted by the court or by any of the parties is ground for granting a new trial or for setting aside a verdict or for vacating, modifying or otherwise disturbing a judgment or order, unless refusal to take such action appears to the court inconsistent with substantial justice. The court at every stage of the proceeding must disregard any error or defect in the proceeding which does not affect the substantial rights of the parties.

After Mary's objection was sustained, Steven's counsel continued his examination with nonleading questions and obtained favorable testimony from the guardian ad litem, including a recommendation that the court credit Daniel's stated preference to attend school in Colorado and to live with Steven. Steven has not demonstrated that any favorable evidence was kept out by the court's ruling; his argument goes entirely to the form of questioning permitted. Nor did Steven make an offer of proof at trial to demonstrate what additional evidence he hoped to get through the leading questions. See NDREv 103(a)(2); Wagner v. Peterson, 430 N.W.2d 331, 333 (N.D.1988). See also Fronk v. Meager, 417 N.W.2d 807, 812 (N.D.1987). Steven has failed to show that the court's ruling affected his substantial rights, and accordingly the error was harmless.

II

Steven argues that the trial court erred in finding no significant change of circumstances to warrant a change of custody since the prior modification. Steven urges that Daniel's mature and intelligent preference to live with Steven, and Mary's continued attempts to frustrate visitation, each constitute a significant change of circumstances.

A motion to modify custody requires a different analysis than an original custody proceeding. Hagel v. Hagel, 512 N.W.2d 465, 467 (N.D.1994). For an original custody proceeding, the trial court is concerned only with the best interests and welfare of the child, [see Dalin v. Dalin, 512 N.W.2d 685, 687 (N.D.1994); Gould v. Miller, 488 N.W.2d 42, 43 (N.D.1992) ], while modification of custody requires a two-stage analysis: (1) Has there been a significant change of circumstances since the prior custody determination? (2) Has the change of circumstances so adversely affected the child that it compels a change in custody to foster the child's best interests? Hagel, 512 N.W.2d at 467. Changed circumstances must be new facts that were unknown at the time of the prior custodial decree. Leppert v. Leppert, 519 N.W.2d 287, 292 (N.D.1994); Hagel, 512 N.W.2d at 467. Further, as Delzer v. Winn, 491 N.W.2d 741, 744 (N.D.1992), and Blotske v. Leidholm, 487 N.W.2d 607, 609 (N.D.1992), illustrate, the change of circumstances must be one that adversely affects the child.

A trial court's decision in a custody modification proceeding is a finding of fact reviewed under the clearly erroneous standard. Johnson v. Schlotman, 502 N.W.2d 831, 833 (N.D.1993). As Johnson states, 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, the reviewing court on the entire evidence is left with a definite and firm conviction that a mistake has been made.

Steven urges that fourteen-year-old Daniel's preference to live in Colorado with Steven was a change of circumstances since the prior modification, when the court disregarded the preference expressed by Daniel, then age ten. Daniel now wants to...