Hendrickson v. Hendrickson, 990123.

• Citation: 2000 ND 1,603 N.W.2d 896
• Decision Date: 03 January 2000
• Docket Number: No. 990123.,990123.
• Parties: Diane HENDRICKSON, Plaintiff and Appellant, v. Mark HENDRICKSON, Defendant and Appellee.
• Court: United States State Supreme Court of North Dakota

603 N.W.2d 896

2000 ND 1

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

No. 990123.

Supreme Court of North Dakota.

January 3, 2000.

Rodney E. Pagel, Pagel Weikum Law Firm, Bismarck, N.D., for plaintiff and appellant.

William A. Herauf, Reichert & Herauf, P.C., Dickinson, N.D., for defendant and appellee.

MARING, Justice.

[¶ 1] Diane and Mark Hendrickson's 1995 divorce and subsequent child custody and visitation dispute are the subject of two prior appeals to this court, Hendrickson v. Hendrickson, 553 N.W.2d 215 (N.D. 1996) [Hendrickson I] and Hendrickson v. Hendrickson, 1999 ND 37, 590 N.W.2d 220 [Hendrickson II]. Following this Court's remand in Hendrickson II, the trial court entered an order denying Diane's motion for change of venue, changing custody from Diane to Mark, denying Diane visitation with the children for a period of one year, and requiring Diane to participate in counseling with a therapist of Mark's choosing. Diane now appeals from this order. We affirm in part, reverse in part and remand for modification of the order.

I.

[¶ 2] Diane and Mark Hendrickson married in 1980 and purchased a home in Jamestown. Diane lived in Jamestown with their four children. Mark lived and worked in Dickinson, but lived with Diane and the children on weekends, holidays and vacations. The couple divorced in 1995. Diane received custody of the children and Mark was granted visitation. In the original decree, the trial court found the children were attached to their lives in Jamestown and had developed a warmer and more secure relationship with their mother than with their father, due substantially to the long-distance living arrangement. The trial court noted, "Mark and Diane effectively—even if not deliberately or knowingly—jointly decided in advance the issue of custody through the residential arrangements they voluntarily made." The trial court issued a visitation schedule allowing Mark visitation two weekends per month and at Christmas. We affirmed the child custody award in Hendrickson I, concluding that it was not clearly erroneous in light of the family's circumstances. 553 N.W.2d at 218.

[¶ 3] On October 1, 1997, Mark filed a motion for change of custody asserting Diane was alienating the children from him. He filed the motion after disputes arose over visitation, which went unresolved despite the trial court's modification of the visitation order. Several months before Mark's motion of October 1, the trial court appointed Karen Mueller as guardian ad litem and directed her to evaluate the Hendrickson family. According to the report Mueller submitted, Diane believed herself completely blameless in the breakdown of her marriage and the ensuing child custody dispute. She considered herself the children's sole caregiver and asserted she was "unaware of any parenting skills Mark might possess." Diane admitted to Mueller that she hung up on Mark when he called and until he gave her $20,000 she would continue to do so. Mueller also reported on several occasions assistance from police officers was required to complete a visitation exchange; at one exchange, Diane's son-in-law verbally attacked Mueller, and at a second, one of the children obstinately dared her to "try to make me go." Mueller explained Mark's relationship with the children had been tenuous from the beginning because of his absence from the family home, and that Diane's alienating behavior was causing additional, harmful estrangement between Mark and the children. In an order dated December 9, 1997, the trial court awarded custody of the children to Stutsman County and ordered the family into therapy.

[¶ 4] Stutsman County, however, declined to take custody of the Hendrickson children. On February 24, 1998, the trial court issued another order, in which the court stated, "[t]his is the most outrageous case that I have seen since I began law school twenty-five years ago." The court also stated:

by deed and innuendo, Diane rewards the children's rejection of their father making this perhaps the worst case of alienation syndrome in the history of the United States.... Her statement on the stand that she has "tried and tried" to encourage visitation is patently ridiculous.

[¶ 5] The court expressed a desire to send Diane to jail for her failure to comply with court orders, yet was concerned this would harm the children. Rather, the court ordered Mark's child support payments to be placed in escrow. The order also stated Mark should continue to have reasonable visitation, but did not grant Mark custody because the relationship between the children and their father had been so poisoned.

[¶ 6] We reviewed that order upon Diane's appeal and Mark's cross-appeal in Hendrickson II, 1999 ND 37, 590 N.W.2d 220. We concluded the trial court erroneously ordered the child support to be placed in escrow as a sanction against Diane. Id. at ¶¶ 10-11. We noted as an alternative remedy, the court could find her in contempt and impose a jail sentence. Id. at ¶ 12. As to Mark's assertion the trial court should change custody, we explained "evidence of alienation or persistent frustration can be relevant factors" in a trial court's assessment of whether there has been a significant change of circumstances following an initial custody determination. Id. at ¶ 13. We then stated:

we recognize methods other than a change of custody should be used initially to remedy a parent's misbehavior, ... we also recognize that, after exhausting other remedies, a change in custody may be the only method to correct the damage of a particularly stubborn and defiant custodial parent. If the alternative remedies fail, the district court should consider a change of custody.

Id. at ¶ 13.

[¶ 7] Just before the Hendrickson II appeal, Mark filed another motion to change custody on April 9, 1998, with a supporting affidavit by the guardian ad litem, Karen Mueller. Following that motion, Diane demanded a change of judge. The case was then reassigned to Judge Allan Schmalenberger. Following our remand, Judge Schmalenberger informed the parties that if Mark's pending motion for change of custody were withdrawn, he could invalidate the demand for change of judge and reassign the case to Judge Hilden to carry out this Court's directions in Hendrickson II. Mark withdrew the motion, and on April 5, 1999, Judge Schmalenberger reassigned the case to Judge Hilden because "he is in the best position to understand the case and to carry out the directions of the North Dakota Supreme Court."

[¶ 8] On April 26, 1999, Judge Hilden issued an order, first denying Diane's motion for change of venue and then turning to consideration of our remand. In its order, the court found Diane had frustrated visitation between Mark and the children and had attempted to alienate the children from their father. The court concluded there had been a significant change of circumstances following the original child custody determination. The court then stated:

This Court has exhausted remedies available to correct Diane Hendrickson's misbehavior. Diane Hendrickson has proven to be a stubborn and defiant custodial parent and the only option yet available is to change custody. Moreover, I find that it is in the best interest of the children that custody be changed and, therefore, I grant immediate custody of the Hendrickson children to their father, Mark Hendrickson.

In addition, the trial court ordered that Diane have no visitation for one year after the custody transfer and required her to submit to counseling with a counselor chosen by Mark. Diane appeals from this order.

II.

[¶ 9] Diane asserts the trial court abused its discretion when it denied her motion for a change of venue. We disagree. Under N.D.C.C. § 28-04-07(3), a trial court may change the place of trial "[w]hen the convenience of witnesses and the ends of justice would be promoted by the change." A motion for change of venue on grounds of convenience of witnesses and furtherance of the ends of justice is addressed to the sound judicial discretion of the court. American State Bank of Dickinson v. Hoffelt, 236 N.W.2d 895, 898 (N.D.1975). The applicant must produce facts affirmatively establishing a change of venue is warranted. Eckman v. Stutsman County, 1999 ND 151, ¶ 6, 598 N.W.2d 494. The trial court's decision will not be disturbed on appeal unless a clear abuse of discretion is shown. Id. at ¶ 7.

[¶ 10] Diane asserts this case is similar to Whitehead v. Whitehead, in which we declared the denial of a motion for change of venue would be an abuse of discretion when both parties, their child, and all material witnesses lived outside the county where the action was then venued. 336 N.W.2d 363, 365-66 (N.D.1983). We conclude the procedural posture in the two cases differs substantially. In Whitehead, the motion to change venue preceded determinative evidentiary hearings. Id. at 364. In this case, however, following the remand and reassignment to Judge Hilden, no additional evidentiary hearing was necessary for the trial court to comply with our decision in Hendrickson II. There simply are no witnesses to be inconvenienced by the location of the action. In addition, given the tortuous history of this case and the parties' continued conflict over their children, we believe the ends of justice will be best served by an expeditious resolution of this action. On the facts of this case, we determine continuing the current venue will serve that end. Thus, we conclude the trial court did not abuse its discretion in denying Diane's motion for change of venue.

III.

[¶ 11] Diane contends the trial court's decision to change custody was clearly erroneous and should be reversed. We analyze this issue under N.D.C.C. § 14-09-06.6, which imposes limitations on post-judgment custody modifications. We conclude the trial court's order was supported by the evidence. We determine, however, the order should be modified to...