Hilgers v. Hilgers

• Decision Date: 05 November 2002
• Docket Number: No. 20010208.,20010208.
• Citation: 2002 ND 173,653 N.W.2d 79
• Parties: Brenda M. HILGERS, Plaintiff and Appellee, v. Douglas G. HILGERS, Defendant and Appellant.
• Court: North Dakota Supreme Court

653 N.W.2d 79

2002 ND 173

Brenda M. HILGERS, Plaintiff and Appellee, v.Douglas G. HILGERS, Defendant and Appellant.

No. 20010208.

Supreme Court of North Dakota.

November 5, 2002.

Rehearing Denied December 4, 2002.

Brenda M. Hilgers, pro se, Bottineau, ND, for plaintiff and appellee.

Douglas G. Hilgers, pro se, Duluth, MN, for defendant and appellant.

KAPSNER, Justice.

[¶ 1]Douglas G. Hilgers appeals from two orders, challenging the trial court's refusal to appoint a guardian ad litem for his minor son; the failure to modify the visitation schedule with his son; the modification of his child support obligation; and the denial of his motion to change custody.In addition, the Court considered Douglas's motion to correct the transcript with the merits of the appeal.The trial court did not abuse its discretion in denying Douglas's request to appoint a guardian ad litem for his minor son.The trial court was not clearly erroneous in denying his motion to change custody.The trial court did not err in denying the motion for correction and modification of the record, and we deny the motion for correction and modification of the record.The trial court erred as a matter of law when it failed to create a visitation schedule.The trial court also erred when it failed to explain its reasons for setting the effective date for the reduction in child support.We affirm in part, reverse in part, and remand for further proceedings consistent with this opinion.

I.

[¶ 2] Douglas and Brenda were married in April of 1980.They had four children.Brenda initiated divorce proceedings in the summer of 1998.A default divorce proceeding occurred on August 31, 1998.Findings of fact, conclusions of law, and an order for judgment were issued on September 2, 1998.Judgment was entered on September 3, 1998.In the instant appeal, only one son is a minor.

[¶ 3] Brenda lives in Bottineau, North Dakota and has custody of the minor son.Douglas lives in Duluth, Minnesota.The current visitation schedule, set in the divorce judgment, entitles Douglas to reasonable visitation to be exercised in Bottineau, North Dakota, after giving 24 hours' advance notice to Brenda.The divorce judgment further ordered Douglas to pay child support for two children in the amount of $977.00 per month.The child support obligation was re-evaluated at a hearing on April 18, 2001.The trial court ordered a reduction in child support to reflect Douglas's current income.The monthly child support obligation was reduced to $610.00 for two children, effective December 1, 2000.

[¶ 4] Douglas's appeal is based on orders from a April 18, 2001, hearing and July 13, 2001, telephonic hearing.He appeals the trial court's refusal to appoint a guardian ad litem for his minor son during the April 18, 2001, hearing.Douglas also appeals the effective date of the child support reduction and the trial court's failure to modify the visitation schedule in the June 18, 2001, order.Additionally, Douglas appeals the trial court's July 30, 2001, order, denying his motion for custody based on evidence presented during the July 13, 2001, telephonic hearing.

II.

[¶ 5] Douglas argues the trial court erred when it refused to appoint a guardian ad litem for his minor son.He asserts the court should have appointed a guardian ad litem to represent the son's rights concerning custody and visitation.

[¶ 6] Under § 14-09-06.4, N.D.C.C., a guardian ad litem may be appointed for children in custody, support, and visitation proceedings:

In any action for an annulment, divorce, legal separation, or other action affecting marriage, where either party has reason for special concern as to the future of the minor children, and in any action where the custody or visitation of the children is contested, either party to the action may petition the court for the appointment of a guardian ad litem to represent the children concerning custody, support, and visitation.

[¶ 7]The trial court's decision to proceed without a guardian ad litem will not be overturned unless the court has abused its discretion.SeeLudwig v. Burchill,514 N.W.2d 674, 677-78(N.D.1994).A trial court has abused its discretion when it acts in an arbitrary, unreasonable, or unconscionable way.Healy v. Healy,397 N.W.2d 71, 75(N.D.1986).In Ludwig,the trial court did not abuse its discretion when it denied the motion for the appointment of a guardian ad litem because it was "satisfied that it [could] consider the best interests of the child involved without the appointment of a guardian ad litem."Ludwig,514 N.W.2d at 677-78.The court noted the language of § 14-09-06.4, N.D.C.C., does not require the appointment of a guardian ad litem upon a party's motion; instead, appointment of a guardian at litem is at the trial court's discretion.Id. at 677.

[¶ 8] Douglas requested the appointment of a guardian ad litem for his minor son, age 14, at the April 18, 2001, hearing to represent his son's interests concerning visitation.While the statute provides that either party may petition the court for the appointment of a guardian ad litem when visitation is contested, the trial court concluded visitation was not contested.The trial court's reasoning is stated in the transcript as follows:

THE COURT: I guess the issue that I just want to feel out where we are going here, is it appears that Ms. Hilgers is not opposed to significant visitation.Based on that, I see no dandy reason to have a guardian.

[¶ 9]The trial court allowed Douglas to present further testimony to support his request for appointing a guardian ad litem.Douglas testified to conduct occurring between the parties and relating to the minor son.Following Douglas's testimony, the transcript of the hearing indicates the trial court refused to appoint a guardian ad litem for the minor son, explaining as follows:

THE COURT: Okay.Just a minute.I am trying to make some sense, Mr. Hilgers, about this guardian ad litem issue that you bring up.A guardian ad litem means a guardian for a specific purpose, generally for a legal hearing to represent the person in court.

MR. HILGERS: Correct.

THE COURT: A guardian ad litem is not a person who is a baby-sitter, overseer, friendly uncle, whatever else or anything like that.And as to what I have heard so far, I can see no good reason for a guardian ad litem of the child.

If the child needs to tell the Court something, the child can tell the Court something.If the child feels that he is abused for one reason or another, he can report his feelings to social services the same as anyone else.

So I am quite sure we are not going to get anywhere with your guardian ad litem issue.The guardian ad litem is for a different function.

[¶ 10] The transcript of the hearing demonstrates the trial court did not abuse its discretion in denying Douglas's request for appointing a guardian ad litem for his minor son.The child was permitted to testify at the hearing.There is no indication that a guardian ad litem was needed to represent the minor son's interests.SeeLudwig,514 N.W.2d at 677(concluding the trial court did not act in an arbitrary, unreasonable, or unconscionable way when it could consider the best interests of the child without appointing a guardian ad litem).Under these circumstances, we cannot say the trial court acted arbitrarily, unreasonably, or unconscionably in denying Douglas's request for appointing a guardian ad litem for his minor son.Thus, we affirm the trial court's decision in denying Douglas's request for the appointment of a guardian ad litem for his son.

III.

[¶ 11] Douglas argues the trial court erred by failing to make findings regarding his request to modify the visitation schedule.

[¶ 12] Douglas's request for modification of the visitation schedule was clearly raised in the trial court, and both parties set forth a visitation schedule.The visitation schedule in effect from the divorce judgment provides for "reasonable visitation at reasonable hours and with 24 hours advance notice to [Brenda]."In addition, Douglas is to remain in Bottineau, North Dakota during his visitation with the child.The parties have failed to observe the provision requiring Douglas to remain in Bottineau, North Dakota, when he visits his son as Brenda has permitted Douglas, on several occasions, to take the child to Douglas's home in Duluth, Minnesota.

[¶ 13] The transcript of the hearing indicates both parties provided the court with a visitation schedule.Douglas requested the following visitation schedule: every other weekend, recognizing he will not exercise every weekend opportunity; a week primarily during Christmas holidays; access to any spring holiday break at school, if there is one; and extended summer visitation from approximately May 25 to the time football practice begins, approximately August 4.Douglas also requested the provision that visitation occur in Bottineau, North Dakota, be stricken.Brenda did not object or raise any concerns with regard to striking the provision requiring visitation to occur in Bottineau, North Dakota.

[¶ 14] Brenda requested at the hearing 48 hours' notice prior to Douglas exercising visitation.Douglas stated during the hearing that he had no objection to the notice requirement.Brenda also requested the child be with her for the Christmas of 2001 and then every other Christmas after 2001.To facilitate extended summer visitation, Brenda provided the court with a written schedule of the child's summer activities, including the last day of school in May and the start of football practice in August.Brenda also specifically requested that the child not unnecessarily miss school.

[¶ 15] Although modification of the visitation schedule was clearly before the court, the order is wholly silent on the issue.From the record, we are unable to determine whether the court considered this issue and impliedly denied the modification request or merely forgot about it.Se...