Burns v. Burns

• Decision Date: 22 August 2007
• Docket Number: No. 20060218.,20060218.
• Parties: Cynthia L. BURNS, Plaintiff and Appellant, v. Bartley D. BURNS, Defendant and Appellee.
• Court: North Dakota Supreme Court

737 N.W.2d 243

2007 ND 134

Cynthia L. BURNS, Plaintiff and Appellant, v. Bartley D. BURNS, Defendant and Appellee.

No. 20060218.

Supreme Court of North Dakota.

August 22, 2007.

Robert S. Rau, Bosard, McCutcheon & Rau, Ltd., Minot, N.D., for plaintiff and appellant.

Michael S. McIntee, McIntee Law Firm, Towner, N.D., for defendant and appellee.

CROTHERS, Justice.

[¶ 1] Cynthia L. Burns appealed from a divorce judgment granting custody of the couple's two children to Bartley D. Burns. We conclude the district court did not abuse its discretion in allowing one of the children's teachers to testify, and the court's award of custody to Bartley Burns is not clearly erroneous. We affirm.

I

[¶ 2] The parties married in 1991 and resided during the marriage in Surrey. They have two children, a son born in 1993 and a daughter born in 1997. The son has been diagnosed with autism, Tourette's syndrome, and attention deficit disorder. He is a special needs child who requires and receives individual attention from special education personnel at school. The daughter is healthy except for "stomach problems due to stress."

[¶ 3] In August 2004, Cynthia Burns and the children left the marital home in Surrey and moved to Fargo. Cynthia Burns claimed she left Surrey because of abuse and improper disciplinary measures used by Bartley Burns against their son. The triggering event occurred at a family gathering in Minnesota where Bartley Burns "knuckled" the son on the back of the head to calm him down. She originally stayed at a women's shelter in Fargo and filed a report of abuse and neglect against Bartley Burns. Following an investigation, authorities concluded Bartley Burns posed no risk to the children and services were not required.

[¶ 4] Cynthia Burns commenced this divorce action in October 2004. Bartley Burns moved for an interim order requesting that the district court award temporary custody of the children to him in Surrey pending the divorce proceedings. The court granted the motion in December 2004. Following the divorce trial in October 2005, the court divided the marital property, awarded custody of the children to Bartley Burns, and granted Cynthia Burns reasonable visitation. The court noted the testimony that "`tips the scales'" in Bartley Burns's favor was given by two of the son's teachers, one from the Fargo school system and one from the Surrey school system, who testified that "familiarity, routine and non-fluctuating schedules are extremely important to an autistic child" and that "it is very beneficial for an autistic child to be in the same surroundings and around the same people."

II

[¶ 5] Cynthia Burns argues the district court erred in admitting into evidence "expert" testimony that was not disclosed by Bartley Burns before trial.

[¶ 6] Bartley Burns presented the testimony of Marilyn Ternes, the son's case manager and special education teacher at the Surrey school. Ternes has credentials allowing her to teach students with any disabilities, and she had been working with the child for six years. Cynthia Burns's attorney objected on the grounds that Bartley Burns had failed to disclose Ternes as an expert witness and that her testimony would be cumulative to the evidence presented by two other Surrey school teachers who had previously testified. Bartley Burns's attorney responded that Ternes was not being presented as an expert, but as a "factual witness[]" who had seen and observed the son, much like Cynthia Burns's witness, Erica Hewitt, a para-professional with the Fargo school system who testified about her work with the son. Cynthia Burns's attorney also claimed surprise. The district court overruled the objection, concluding Cynthia Burns's attorney could adequately address any concerns on cross-examination. Ternes testified about the problems associated with an autistic child.

[¶ 7] Whether Bartley Burns offered Ternes to provide opinion testimony is not an issue we need to decide on this appeal. Ternes's testimony was similar to testimony given by Hewitt, whom Cynthia Burns did not disclose before trial as an expert witness. A district "court has broad discretion over the conduct of a trial or hearing, including limitations on the number of witnesses." Gullickson v. Kline, 2004 ND 76, ¶ 15, 678 N.W.2d 138. "A district court abuses its discretion when it acts in an arbitrary, unconscionable, or unreasonable manner, when its decision is not the product of a rational mental process by which the facts of record and law relied upon are stated and considered together for the purpose of achieving a reasonable determination, or when it misinterprets or misapplies the law." Gisvold v. Windbreak, Inc., 2007 ND 54, ¶ 5, 730 N.W.2d 597. We have said a continuance is the proper remedy for a party claiming surprise, e.g., Paulson v. Paulson, 2005 ND 72, ¶ 16, 694 N.W.2d 681, and "`[a] judgment will not ordinarily be reversed on appeal for surprise when no request is made for a continuance at the time and there is no showing of inability to meet the situation.'" City of Grand Forks v. Scialdone, 2005 ND 24, ¶ 9, 691 N.W.2d 198 (quoting State v. Hirschkorn, 2002 ND 36, ¶ 9, 640 N.W.2d 439); Reimche v. Reimche, 1997 ND 138, ¶ 9, 566 N.W.2d 790. Cynthia Burns did not seek a continuance and has not shown she was unable to meet the situation. The district court did not abuse its discretion in allowing Ternes to testify.

III

[¶ 8] Cynthia Burns argues the district court erred in awarding custody of the children to Bartley Burns.

[¶ 9] A district "court's decisions on child custody, including the ultimate award of custody, are treated as findings of fact and will not be set aside on appeal unless they are clearly erroneous." Klein v. Larson, 2006 ND 236, ¶ 6, 724 N.W.2d 565. "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." Gietzen v. Gabel, 2006 ND 153, ¶ 6, 718 N.W.2d 552. "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 custody case or substitute our judgment for a district court's initial custody decision merely because we might have reached a different result." Jelsing v. Peterson, 2007 ND 41, ¶ 11, 729 N.W.2d 157. "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 child custody decision involving two fit parents." Id. [¶ 10] The district court found that most of the statutory best interest factors under N.D.C.C. § 14-09-06.2(1) were either inapplicable or favored neither party. The court found that while factor (j) (evidence of domestic violence) favored Cynthia Burns, factors (d) (the length of time the children have lived in a stable, satisfactory environment and the desirability of maintaining continuity) and (m) (any other factors considered by the court to be relevant to a particular child custody dispute) favored Bartley Burns.

A

[¶ 11] Cynthia Burns argues the court erred in finding she did not have the advantage under factor (c) (the disposition of the parents to provide the children with food, clothing, medical care, or other remedial care recognized and permitted under the laws of this state in lieu of medical care, and other material needs). The court evaluated this factor as a "`plus'" for both parents, finding "no discernable difference between Bart and Cynthia." Although Cynthia Burns claims she was the parent who handled most of the food and clothing needs of the children and obtained remedial care for the son, the record also reflects that from 1999 through 2004, Bartley Burns ran a home business and tended to the children's needs while Cynthia Burns was employed in various jobs outside of the home. Bartley Burns cared for the children while Cynthia Burns was working, took the children to school, and dealt with school personnel concerning the son's special needs on a daily basis. The record also reflects that both parties are capable of providing for the children's material needs. The district court's finding that factor (c) did not favor either party is not clearly erroneous.

B

[¶ 12] Cynthia Burns argues the district court erred in awarding custody to Bartley Burns because he "hits his children and has a history of doing so" and she took the children to Fargo to remove them from what she described as "an abusive setting."

[¶ 13] There is some evidence of violence inflicted by the parties against each other and against the children through disciplinary measures. The court found no credible evidence of domestic violence to make the N.D.C.C. § 14-09-06.2(1)(j) presumption against an award of custody applicable. "If the evidence of domestic violence does not rise to the level to trigger the presumption, the court may still consider the evidence as one of the best-interest factors." DeMers v. DeMers, 2006 ND 142, ¶ 7, 717 N.W.2d 545. The court found that this factor favored Cynthia Burns based on disciplinary measures employed by Bartley Burns on the children. Bartley Burns had spanked the daughter and "knuckled" the son on the back of his head on more than one occasion "to get his attention" and stop his bouts of uncontrollable screaming. In its analysis of factor (j), the court said:

For his part, Bart readily acknowledges that he made a serious mistake when he "knuckled" [the son] in the back of the head — and he genuinely regrets having employed this method of "discipline." Bart also candidly admits that he has indeed spanked both of the children on their bottoms, and has probably left some bruises on [the daughter] in the process. However, he relates that he is not "an abuser of children" and he assures that [sic] Court that he has "made some changes" in his life....