Hendrickson v. Hendrickson, 980124

• Decision Date: 25 February 1999
• Docket Number: No. 980124,980124
• Citation: 590 N.W.2d 220,1999 ND 37
• Parties: Diane HENDRICKSON, Plaintiff, Appellant and Cross-Appellee, v. Mark HENDRICKSON, Defendant, Appellee and Cross-Appellant. Civil
• Court: North Dakota Supreme Court

Page 220

590 N.W.2d 220

1999 ND 37

Diane HENDRICKSON, Plaintiff, Appellant and Cross-Appellee, v. Mark HENDRICKSON, Defendant, Appellee and Cross-Appellant.

Civil No. 980124

Supreme Court of North Dakota.

Feb. 25, 1999.

Robert W. Martin, Bismarck, for plaintiff, appellant and cross-appellee.

William A. Herauf, Reichert & Herauf, P.C., Dickinson, for defendant, appellee and cross-appellant.

VANDE WALLE, Chief Justice.

¶1 Diane Hendrickson appealed and Mark Hendrickson cross-appealed from an order directing the clerk of court place Mark Hendrickson's monthly child support payments into an interest-bearing escrow account and awarding him attorney fees. We affirm in part, reverse in part and remand.

¶2 This case was previously before us on related legal issues. See Hendrickson v. Hendrickson, 553 N.W.2d 215 (N.D.1996). Diane and Mark Hendrickson divorced in 1995. Diane Hendrickson received custody of the parties' four children. Prior to the divorce judgment, the district court issued an order establishing a visitation schedule. The order stated Mark Hendrickson would have visitation on the second and fourth weekends of every month and at Christmas. Prior to the divorce, the district court also issued an order appointing Carla Howe Godfrey as guardian ad litem.

¶3 February 7, 1996, Mark Hendrickson brought a motion claiming Diane Hendrickson was frustrating visitation. In an affidavit, he detailed several examples of Diane Hendrickson's interference with visitation including: leaving her home with the children at the time of scheduled visitations, not allowing him to take the children once he arrived for visitation and refusing to discuss or arrange visitation. After a hearing, an order setting visitation for the first weekend of each month was issued December 4, 1996. Mark Hendrickson exercised visitation December 13 and 14, 1996, but he did not see the children during January or February 1997. February 25, 1997, he brought a motion for order of contempt on the grounds Diane Hendrickson was interfering with visitation.

¶4 Three months later, the district court appointed Karen Mueller as guardian ad litem. October 1, 1997, Mark Hendrickson brought a motion to change custody. He asserted Diane Hendrickson had alienated the children and obstructed his attempts to exercise visitation. Following a hearing, the district court issued an order directing care, custody and control of the four children be given to Stutsman County Social Services and authorized the agency to remove the children from Diane Hendrickson's care if any alienating behavior continued. The district court's order relied heavily upon the child custody evaluation report of Mueller which concluded Diane's alienation was through both overt and covert patterns of behavior. The order further read:

If there were any practical way under these circumstances, I would award custody to Mark. Before that happens, Diane has an opportunity to undo what she has done. To that end, from Stutsman County Social Services I will receive a report in ninety days. If that report reveals that Diane has engaged in any alienating behavior, Diane will forthwith commence serving thirty days in the Southwest Multi-County Corrections Center for contempt. If that report reveals that either party has not fully cooperated in the therapeutic process or has hindered it in any way, that party will serve thirty days. If the report reveals no improvement in the relationship between children and father, I will take it as prima facie evidence that Diane continues subtle alienating behavior and instruct the sheriff accordingly.

Stutsman County Social Services declined custody and a second order was issued by the district court stating, "[t]his is the most outrageous case that I have seen since I began law school twenty-five years ago. Diane's continuing pattern of alienating behavior has pretty much destroyed Mark's hope of a meaningful relationship with his children." The order provided:

I would order Diane to report to jail which she richly deserves if I could do so without harming the children. But in jail, Diane would probably lose her job, house and car all of which Diane may deserve but the children do not. Moreover, with the currently existing relationship between Mark and his children, I don't see how I can now give Mark custody whether nor [sic] not Diane goes to jail. Diane has poisoned their relationship with their father so badly that a change of custody to Mark is kind of out of the question right now.

Attempting to remedy the visitation problems, the district court directed the clerk of court place Mark Hendrickson's monthly child support payments in an interest-bearing escrow account for the benefit of the childrens' higher education and explained the issue might be revisited when Diane Hendrickson has persuaded the children of the importance of a relationship with their father. Diane Hendrickson was also ordered to pay $2,000 in attorney fees.

¶5 On appeal, Diane Hendrickson challenges the placement of the child support payments into a separate account and award of attorney fees and Mark Hendrickson, on his cross-appeal, asserts the court should have awarded him custody.

Child Support Payments

¶6 A trial court's determination on a motion to modify custody is subject on appeal to the clearly erroneous standard under Rule 52(a), N.D.R.Civ.P. Johnson v. Johnson, 480 N.W.2d 433, 435 (N.D.1992). Therefore, the trial court's findings will not be set aside unless they are clearly erroneous. Id.

¶7 Visitation between a child and a noncustodial parent is presumed to be in the best interests of the child. Blotske v Leidholm, 487 N.W.2d 607, 610 (N.D.1992). Not only is visitation a privilege of the noncustodial parent, but it is also the right of the child. Id. This Court has recognized that regularly scheduled visitation is an integral part of developing a healthy relationship between a child and the noncustodial parent. See, e.g., Iverson v. Iverson, 535 N.W.2d 739, 742 (N.D.1995); Johnson v. Schlotman, 502 N.W.2d 831, 835 (N.D.1993). Therefore, a custodial parent should, in the best interests of the children, nurture the child's relationship with the noncustodial parent and has a duty to not turn a child away from the other parent by "poisoning the well." See Johnson, 502 N.W.2d at 834.

¶8 The latest order of the trial court provided Mark Hendrickson would have visitation the first full weekend of each month. The record clearly reveals Diane Hendrickson frustrated his attempts to exercise visitation and alienated the children from him. The trial court obviously exasperated with the situation, refused to hold Diane Hendrickson in contempt for disregarding the court-ordered visitation and instead, concluded Mark Hendrickson's child support payments should be placed in a separate account to be used for the childrens' secondary education. While we understand the trial court's frustration, we conclude this remedy was improper and instruct the trial court to consider an alternative remedy.

¶9 The child support guidelines contain no provisions authorizing current support be placed in a separate account when a custodial parent refuses to cooperate with visitation. Rather, under the guidelines, child support is to be paid to the custodial parent to use for the child's current expenses. See Schleicher v. Schleicher, 551 N.W.2d 766, 768 (N.D.1996) (holding trial court's order requiring obligor place $50...