Clark v. Clark, 20050436.

• Decision Date: 21 August 2006
• Docket Number: No. 20050436.,20050436.
• Citation: 2006 ND 182,721 N.W.2d 6
• Parties: Dean Alan CLARK, Plaintiff and Appellant v. Jean Marie Crandall CLARK, Defendant and Appellee.
• Court: North Dakota Supreme Court

721 N.W.2d 6

2006 ND 182

Dean Alan CLARK, Plaintiff and Appellant v. Jean Marie Crandall CLARK, Defendant and Appellee.

No. 20050436.

Supreme Court of North Dakota.

August 21, 2006.

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Jerilynn Brantner Adams, Vogel Law Firm, Fargo, N.D., for plaintiff and appellant.

Tracey R. Lindberg, Tracey R. Lindberg Law Firm, Breckenridge, MN, for defendant and appellee.

VANDE WALLE, Chief Justice.

[¶ 1] Dean Alan Clark appealed from an amended judgment and decree awarding Jean Marie Crandall Clark primary physical custody of their two minor sons and ordering him to pay child support. We conclude the district court did not err in granting Jean Clark physical custody of the children, but erred as a matter of law in computing Dean Clark's child support obligation. We affirm in part, reverse in part, and remand for recalculation of the child support obligation accompanied by an explanation of how the amount was determined.

I

[¶ 2] The parties were married in 1989 and lived in Lidgerwood. The couple's two sons were born in 1991 and 1995. The parties divorced in 2001 and were awarded joint physical custody of the children, with custody of the boys rotating between the parties on a week-by-week basis. For child support the parties were ordered to each pay $250 per month to a joint account until the youngest child turned 18 or graduated from high school, whichever occurred later. Dean Clark was awarded the couple's farm property and Jean Clark was awarded her Lidgerwood home.

[¶ 3] The children began residing with Jean Clark in Lidgerwood during the school year beginning in August 2003, with Dean Clark having them every other weekend. In October 2004, Jean Clark filed a motion requesting an order voiding the divorce judgment, amending the physical custody provisions of the judgment to provide her sole physical custody of the children, or formally modifying the exchange schedule for the children. Dean Clark responded by insisting on a return to the weekly custodial exchange and by filing a motion seeking sole physical custody of the children. On March 3, 2005, a custody investigator was appointed by stipulation of the parties.

[¶ 4] On July 17, 2005, the custody investigator served her report on the parties. The custody investigator recommended that Jean Clark be granted sole physical custody of the children with visitation for Dean Clark during the school year and rotating custody during the summer months. Dean Clark sought a continuance of the scheduled August 15, 2005, hearing on the motions, and a judicial referee granted a continuance until September 19, 2005. Dean Clark supplemented his expert witness interrogatories on September 7 and 8, 2005, by naming two additional expert witnesses, Krislea Wegner and Nancy Hein-Kolo. The opinions and reports of those experts were served on Jean Clark on September 14, 2005. Jean Clark moved to exclude the testimony because of untimely disclosure and unfair surprise. Dean Clark moved to bar the testimony of Jean Clark's proposed rebuttal expert witness, Dr. Stephen Timm. The referee granted both parties' motions in limine to exclude the expert testimony and denied Dean Clark's request for another continuance. The referee also denied Dean Clark's request to have the children testify.

[¶ 5] Following the September 19-21, 2005, hearing, the referee modified the custody provisions of the divorce decree by awarding Jean Clark physical custody of the children. The referee granted Dean Clark visitation on alternating weekends and one evening a week during the school year, and ordered that each party have the children for alternating two-week time periods during the summer. The referee also ordered that Dean Clark pay $3,487 per month in child support. Upon Dean Clark's request for review, the district court adopted the referee's findings of fact and conclusions of law, and an amended judgment was entered.

II

[¶ 6] Dean Clark argues the referee erred in excluding the affidavits and testimony of his expert witnesses, which he claims would have contradicted the custody investigator's report and recommendations. Dean Clark contends the referee, at the very least, should have granted his request for another continuance.

[¶ 7] The decision to admit expert testimony rests within the discretion of the district court and will not be reversed in the absence of a showing of abuse of discretion. Rittenour v. Gibson, 2003 ND 14, ¶ 29, 656 N.W.2d 691. We also will not reverse a district court's decision to deny a continuance absent an abuse of discretion by the court. Paulson v. Paulson, 2005 ND 72, ¶ 16, 694 N.W.2d 681. A district court abuses its discretion when it acts in an arbitrary, unreasonable, or unconscionable manner, or when its decision is not the product of a rational mental process. Flatt ex rel. Flatt v. Kantak, 2004 ND 173, ¶ 15, 687 N.W.2d 208.

[¶ 8] Under the discovery provisions of N.D.R.Civ.P. 26(e):

(1) A party is under a duty seasonably to supplement the response with respect to any question directly addressed to

. . . .

(B) the identity of each person expected to be called as an expert witness at trial, the subject matter on which the person is expected to testify, and the substance of the person's testimony.

The purpose of Rule 26(e) is to eliminate surprise and allow the opposing party a fair opportunity to meet the evidence at trial. Myer v. Rygg, 2001 ND 123, ¶ 21, 630 N.W.2d 62; Kjonaas v. Kjonaas, 1999 ND 50, ¶ 16, 590 N.W.2d 440. In Dewitz by Nuestel v. Emery, 508 N.W.2d 334, 339 (N.D.1993), this Court explained:

Rule 26[(e)] does not establish a fixed time prior to trial within which interrogatories must be supplemented so as to be seasonable. The determination as to seasonableness is necessarily a case by case determination, within the sound discretion of the trial judge. To be seasonable, however, the supplemental response must be made a reasonable time before trial taking into account the purpose of the rule which is the elimination of surprise at trial.

A district court has discretionary authority in determining appropriate sanctions for a party's failure to timely supplement interrogatories by disclosing the identity of an expert witness and the substance of the expert's testimony. See Peek v. Berning, 2001 ND 34, ¶ 25, 622 N.W.2d 186.

[¶ 9] Dean Clark served supplemental responses naming his expert witnesses on September 7 and 8, 2005, about 12 days before the scheduled hearing. Dean Clark did not reveal the substance of their opinions until late in the afternoon of September 14, 2005, only five days before the hearing. The referee had already granted Dean Clark one continuance of the hearing. In excluding the testimony of Dean Clark's expert witnesses and Jean Clark's rebuttal expert witness, and in denying Dean Clark's request for another continuance, the referee relied on a "combination of factors," explaining:

Because of the time frame involved, because this matter has been pending for almost a year now, and because of my belief that it is in the best interests of these children that we get the matter resolved as efficiently as possible, I am not going to — and there wasn't a request for — I'm not going to continue the matter and I am going to exclude the reports of Dr. Hein-Kolo and Dr. Wegner and Dr. Timm. Dr. Timm's report — or testimony probably would not be relevant to anything without the previous two and that is because of the fact that there simply was not adequate time to prepare and I don't fault Mr. Timm. I'm not trying to point any fingers here. I am absolutely convinced that on the day [Dean Clark's trial attorney] got these reports, he sent these reports to opposing counsel. But, as I indicated to counsel in chambers, I also have significant questions that these reports are going to produce anything to us that hasn't already been alleged and has been or will be testified to.

[Dean Clark's trial attorney] responded as soon as he had the information, but the experts didn't get the information, didn't get the report to him, until the 13 or the 14 or somewhere in that range. And, as [Jean Clark's attorney] points out, it would have been impossible to depose the witnesses before — or not impossible but certainly less than fruitful to depose the witnesses before those reports were in. So those [sic] combination of factors have led to my decision to exclude as indicated.

[¶ 10] Although we have said the preferred remedy for any late disclosure is a continuance rather than an exclusion of expert testimony, see Reimche v. Reimche, 1997 ND 138, ¶ 9, 566 N.W.2d 790, the referee reasoned that the proceedings had been pending for nearly one year and another continuance would not be in the children's best interests. The referee's decision to exclude the expert witnesses and deny the request for continuance is not arbitrary, unreasonable, or unconscionable, and is the product of a rational mental process. We conclude the referee did not abuse his discretion.

III

[¶ 11] Dean Clark argues the referee erred in excluding the testimony of the children without first assessing their ability to express a preference regarding child custody.

[¶ 12] Under N.D.C.C. § 14-09-06.2(1)(i), one of the factors a court must consider in deciding child custody is "[t]he reasonable preference of the child, if the court deems the child to be of sufficient intelligence, understanding, and experience to express a preference." We have recognized there is a legislative policy that children of sufficient age and maturity "can and do make significant decisions in their lives, which courts must consider in determining children's custody preferences, and in making custody decisions." Reineke v. Reineke, 2003 ND 167, ¶ 17, 670 N.W.2d 841. We have also observed that, "[a]lthough age is not the exclusive indicator of a child's maturity and capacity to make an intelligent choice, generally, a child's preference is...