Harty v. Harty, 970298

• Court: North Dakota Supreme Court
• Writing for the Court: VANDE WALLE
• Citation: Harty v. Harty, 578 N.W.2d 519 (N.D. 1998)
• Decision Date: 04 May 1998
• Docket Number: No. 970298,970298
• Parties: Wade James HARTY, Plaintiff and Appellee, v. Stephanie Jo HARTY, Defendant and Appellant. Civil

Page 519

578 N.W.2d 519

1998 ND 99

Wade James HARTY, Plaintiff and Appellee, v. Stephanie Jo HARTY, Defendant and Appellant.

Civil No. 970298.

Supreme Court of North Dakota.

May 4, 1998.

Samuel S. Johnson, Wahpeton, for plaintiff and appellee.

DeAnn M. Pladson, of Maring Williams Law Office, Fargo, for defendant and appellant.

VANDE WALLE, Chief Justice.

¶1 Stephanie Jo Harty, herein referred to by her maiden name, Madsen, appealed from a divorce judgment awarding Wade Harty custody of the parties' minor daughter, Jourdan. We hold the trial court did not abuse its discretion in refusing to suppress the guardian ad litem's report or to appoint a new guardian ad litem. We further hold the trial court's custody and child support decisions were not clearly erroneous, and we affirm.

¶2 Harty and Madsen were married in August 1992. Jourdan was born in October 1994. The parties separated in July 1996. Harty filed for divorce, and both parties sought custody of Jourdan. The court appointed Lisa Stenehjem as guardian ad litem to advocate Jourdan's best interests and to "make recommendations for custody and visitation" in a report to be filed with the court. After Stenehjem filed a final report, Madsen moved to suppress the report and sought appointment of a new guardian ad litem, claiming Stenehjem was biased. The court denied the motion and, after a hearing, awarded Harty custody of Jourdan. The court also ordered Madsen to pay child support of $266 per month.

¶3 On appeal, Madsen asserts the trial court erred in refusing to suppress Stenehjem's report and appoint a new guardian ad litem. She claims Stenehjem did not interview persons she requested her to interview, did not seek Madsen's version of adverse information received from Harty, and did not adequately consider the advantages of Madsen's revised work schedule to Madsen having custody of Jourdan.

¶4 Under N.D.C.C. § 14-09-06.4 the court, in its discretion, may appoint a guardian ad litem to serve as an advocate of the child's best interests in a divorce action. We will not upset the trial court's decision regarding appointment of a guardian ad litem unless the court abused its discretion, by acting in an arbitrary, unreasonable, or unconscionable way. See Ludwig v. Burchill, 514 N.W.2d 674, 677-678 (N.D.1994). Stenehjem's report demonstrates careful and considered weighing of factors relevant to Jourdan's custody. The report provides specific instances of conduct to support Stenehjem's conclusions as to which parent had an advantage over the other on each relevant factor.

¶5 Stenehjem considered both Harty and Madsen to be fit parents who have love and affection for Jourdan and the ability to provide and care for her. She believed, however, Harty would best provide a safe and caring environment for Jourdan. She observed Harty's first priority is Jourdan's safety and well-being, while Madsen's first priority is her own happiness. Stenehjem was particularly concerned, for example, about incidents where Madsen did not use a child car seat for Jourdan and left pills in a bag which was accessible to Jourdan. In her initial report, Stenehjem expressed concern Madsen's work schedule could disrupt Jourdan's schedule while Harty's work was more conducive to a regular, uninterrupted schedule for Jourdan. When Stenehjem learned Madsen's work schedule had changed, she filed a supplemental report, stating the new schedule would "certainly improve the daily schedule for Jourdan, and give Jourdan continuity in her daily routines." Stenehjem noted, however, the new work schedule "does not change the instances in which Jourdan's safety has been jeopardized.... [Harty] is more child orientated and looks for Jourdan's safety and well being."

¶6 Stenehjem testified she had about five to seven contacts with Madsen and about ten contacts with Harty before writing her report. She relied upon affidavits and completed questionnaires of persons Harty and Madsen asked her to contact. She did not feel it was helpful or necessary for her to personally interview each source. She said she does not ordinarily contact all of the parties' references because they will presumably give "glowing reports" about the parent who referred them, and those reports are not helpful in deciding which party would be the best custodial parent.

¶7 In denying Madsen's request to suppress Stenehjem's report and appoint a new guardian ad litem, the trial court expressly found there was inadequate evidence of "bias" or that "anyone improperly influenced" the guardian ad litem. We conclude the trial court did not abuse its discretion in denying Madsen's motion.

¶8 Madsen also claims Stenehjem was improperly contacted by Harty's attorney. In its interim order appointing Stenehjem guardian ad litem, the trial court stated counsel for either party "may only initiate contact with the Guardian ad Litem in writing and must provide a copy of any and all correspondence with enclosures to opposing counsel." While discussing Stenehjem's report, Madsen's attorney told Harty's attorney she thought the report was biased and the reference to Madsen's work schedule was inappropriate because Madsen had a new job and schedule. Harty's attorney asked if he should contact Stenehjem and ask her to prepare a supplemental report in view of this new information. Madsen's attorney responded she did not think it would do any good but she would talk to her client about it. Later, Stenehjem was discussing matters in unrelated cases with Harty's attorney on the telephone when he told her there was new information in this case and she should talk to Harty about it. Stenehjem talked to Harty and learned Madsen had a new job and work schedule. Stenehjem then filed the supplemental report.

¶9 Although Stenehjem at first mistakenly told Madsen she learned of the new job from Harty's attorney, Stenehjem subsequently corrected herself and told Madsen she received that information from Harty, not his attorney. The court found Harty's attorney did not improperly contact Stenehjem in violation of the court's order. The record evidence supports the court's finding.

¶10 Madsen's ultimate assertion is the trial court's custody award is clearly erroneous. In a divorce proceeding, the trial court must award custody of a minor child based upon a determination of the best interests and welfare of the...