Guskjolen v. Guskjolen, 11003

• Decision Date: 23 July 1986
• Docket Number: No. 11003,11003
• Parties: Linda GUSKJOLEN (Walters), Plaintiff and Appellant, v. Larry GUSKJOLEN, Defendant and Appellee. Civ.
• Court: North Dakota Supreme Court

Page 639

391 N.W.2d 639

Linda GUSKJOLEN (Walters), Plaintiff and Appellant, v. Larry GUSKJOLEN, Defendant and Appellee.

Civ. No. 11003.

Supreme Court of North Dakota.

July 23, 1986.

Kirschner & Baker Legal Clinic, Fargo, for plaintiff and appellant; argued by William Kirschner.

Kennelly and Pederson, Fargo, for defendant and appellee; argued by William J. Kennelly; appearance by Timothy Jay Pederson.

MESCHKE, Justice.

Linda Walters (formerly Guskjolen) appeals an order denying her motion to require Larry Guskjolen to submit to a mental examination by Linda's expert witness, and denying her motion to restore custody of their daughter to Linda and to restrict Larry's visitation privileges. We affirm.

Larry and Linda had one child, a daughter born in April 1981. In May 1983 the Guskjolens were divorced. Pursuant to stipulation, Linda got custody of the daughter and Larry had specified visitation rights. Larry moved for a change of custody in December 1983, to which Linda responded by moving for increased child support. Larry based his change of custody motion primarily on the fact that Linda had been living with someone who may have physically abused the child.

While those matters were still pending before the referee, Linda brought another motion to restrict Larry's visitation rights, alleging that Larry had sexually abused their daughter. Before the June 8, 1984 hearing on that motion, Linda married Kerry Walters, who faced criminal charges in Minnesota for sexually abusing his own children. Kerry pleaded guilty to various charges of intrafamilial sexual abuse on June 12, 1984, and was sentenced on August 7, 1984. The referee found that Linda's allegations were not substantiated and reinstated Larry's visitation privileges. Concerned about Linda's marriage, the referee also ordered that the child not be left alone with Kerry pending resolution of Larry's change of custody motion.

The hearing on the change of custody motion began in August 1984 and continued over several months, concluding with the referee issuing findings of fact and conclusions of law in November 1984, recommending that custody be changed from Linda to Larry. Linda requested district court review of the referee's recommendations. A review hearing scheduled for late February 1985 was postponed for several weeks when Linda retained new counsel.

Meanwhile, between January 26, 1985, and March 22, 1985, Linda took her daughter for six sessions with Carl Marquit, a Minneapolis social worker and psychologist who specialized in family and child sexual abuse. The February 22 and 23 sessions were videotaped. Based on these sessions, Marquit formed the opinion that the child had probably been sexually abused by Larry. Linda then moved to restore custody to her (despite the fact that the district court had not yet confirmed the referee's recommendation to change custody from Linda to Larry), to restrict Larry's visitation, to require Larry to submit to a "mental examination" by Marquit, and to require Larry to pay for Marquit's expert witness fees. The child was placed in temporary foster care on March 5, 1985, pending resolution of the custody hearing.

On March 29, the district court held a hearing on Linda's motions. Testimony was presented by Linda's expert, Carl Marquit, and by Larry's three expert witnesses, who countered Marquit's testimony and the videotape evidence as being inconclusive and as equally explainable by possibilities other than sexual abuse. At the conclusion of the hearing on April 2, the court ruled from the bench and confirmed the referee's findings of fact and conclusions of law, specifically referring to Rule 53(f)(2), N.D.R.Civ.P., that when a master is appointed to hear a matter, the court must accept the master's findings of fact unless they are clearly erroneous. The court also denied Linda's other motions, confirming in a written order on April 10 that Larry was to have custody and that Larry did not have to submit to an examination by Marquit.

Linda asserts that the trial court abused its discretion in denying her motion to have Larry examined by Carl Marquit. Rule 35(a) of the North Dakota Rules of Civil Procedure states:

"When the mental or physical condition (including the blood group) of a party, or a person in the custody or under the legal control of a party, is in controversy, the court in which the action is pending may order the party to submit to a physical or mental examination by a physician or to produce for examination the person in his custody or legal control. The order may be made only on motion for good cause shown and upon notice to the person to be examined and to all parties and shall specify the time, place, manner, conditions, and scope of the examination and the person or persons by whom it is to be made." (Emphasis supplied.)

Marquit was not a physician, had not completed his dissertation for his doctorate in psychology, and was not a licensed clinical psychologist. Therefore, Linda conceded at oral argument that the trial court did not abuse its discretion under Rule 35(a), N.D.R.Civ.P., but argued that the request for a "mental evaluation" should still have been allowed under the spirit of the general discovery rule, Rule 26. A trial court has wide discretion in deciding whether to grant or deny discovery requests, including those for a physical or mental examination under Rule 35. Lucke v. Lucke, 300 N.W.2d 231, 235 (N.D.1980). We find no abuse of discretion in denying this request.

There is some question about which standard of review applies to the trial court's denial of Linda's motion to modify custody. The court treated the motion as a Rule 60(b), N.D.R.Civ.P., motion requesting relief on the basis of newly discovered evidence that could not have been discovered by due diligence within the time limits to move for a new trial under Rule 59(b). The court granted the new hearing and allowed Linda to present evidence to support her change of custody motion. The "newly discovered evidence" was Marquit's testimony that the child was not able to articulate the sexual abuse her father allegedly committed when she was approximately two years old, but had matured enough by age four and a half to communicate the incidents through the sessions with Marquit.

The motion to require Larry to submit to an examination by Marquit is tied to the 60(b) "newly discovered evidence" issue because Marquit maintained that he needed to interview Larry to more clearly establish that Larry was the probable source of abuse and to adequately support Linda's position that a change in custody from Larry to Linda was in the child's best interests. Since the standard of review for Rule 60(b) motions, as well as for discovery motions, is abuse of discretion, we also conclude that there was no abuse of discretion in denying the request as part of the Rule 60(b) "newly discovered evidence" motion.

Since the trial court treated Linda's motion to restore custody to her as a 60(b) motion, is the applicable standard of review an abuse of discretion, rather than the clearly erroneous standard...