Iverson v. Iverson, 950030

• Decision Date: 27 July 1995
• Docket Number: No. 950030,950030
• Citation: 535 N.W.2d 739
• Parties: Patricia Anne IVERSON, n/k/a Patricia Anne Byzewski, Plaintiff, Appellant and Cross-Appellee v. John Wayne IVERSON, Defendant, Appellee and Cross-Appellant. Civ.
• Court: North Dakota Supreme Court

Page 739

535 N.W.2d 739

Patricia Anne IVERSON, n/k/a Patricia Anne Byzewski Plaintiff, Appellant and Cross-Appellee v. John Wayne IVERSON, Defendant, Appellee and Cross-Appellant.

Civ. No. 950030.

Supreme Court of North Dakota.

July 27, 1995.

R. Lee Hamilton, of Hamilton, Juntunen & Cilz, Grand Forks, for plaintiff, appellant and cross-appellee. Submitted on briefs.

John Wayne Iverson, Crookston, MN, pro se. Submitted on briefs.

SANDSTROM, Justice.

Patricia Iverson appealed from an order of the district court continuing indefinitely an interim order modifying visitations between her son, Jacob Iverson, and his father, John Iverson, and requiring Patricia Iverson to pay guardian ad litem fees of $250.00. Patricia Iverson also appealed from an amended judgment modifying John Iverson's child support obligation for Jacob. John Iverson filed a cross appeal from the trial court's order and amended judgment. We conclude the disputed findings by the trial court regarding visitation, child support, and payment of guardian ad litem fees are not clearly erroneous, and we affirm.

I

After her divorce from John Iverson, Patricia Iverson resumed use of her maiden name, Byzewski. We refer to Patricia Iverson as Byzewski and to John Iverson as Iverson.

Iverson and Byzewski were married in 1989 and Jacob was born later that year. Byzewski was granted a default divorce from Iverson in August 1991. Byzewski was given primary custody of Jacob in the original divorce decree. Iverson was given "the right of reasonable supervised visitation," to be supervised by Byzewski's sister, Carol Jagow, or another third party specified by Byzewski. The supervision was apparently ordered based on Byzewski's testimony that Iverson, on multiple occasions, had left the infant child unattended, had transported the child in a car driven by an intoxicated person, and had threatened to take the child and not return. The decree also required Iverson to pay child support of $50.00 per month for Jacob. Iverson has three other children, each with a different mother, and his contact and visitation with Jacob since the divorce has been infrequent.

In an August 11, 1993 letter to the court, Iverson complained he had not seen Jacob for two years, explaining it was "mostly due to the awkwardness and uneasiness I would feel along with being unwelcomed" at Jagow's home. Iverson requested a change in supervisor and suggested his own parents, or his sister and her husband. On September 15, 1993, the court entered a temporary order setting specific times for Iverson's visitations with Jacob: "alternating Tuesday and Thursdays, commencing on the 16th day of September, 1993, from 4:00 p.m. to 8:00 p.m." The temporary order specifically retained Jagow as the supervisor for the visitations, and the court scheduled a later hearing on Iverson's motion for change of supervisor. The court later appointed a guardian ad litem to "conduct an investigation and present a report to the Court concerning future visitation arrangements for the child."

On November 3, 1993, Byzewski filed a motion requesting the court to increase Iverson's child support obligation. After hearings on the visitation and child support issues, the court entered an order, dated December 2, 1994, dismissing Iverson's motion to modify visitation, but continuing indefinitely the September 15, 1993 order scheduling visitations for alternating Tuesdays and Thursdays and retaining Jagow as supervisor of the visitations. The court ordered Byzewski to pay $250.00 and Iverson to pay $761.22 for the guardian ad litem fees. The court also entered an amended judgment, increasing Iverson's child support obligation from $50.00 to $81.00 per month.

The trial court had jurisdiction under Art. VI, Sec. 8, N.D. Const., and N.D.C.C. Secs. 27-05-06(2) and 14-05-22. We have jurisdiction under Art. VI, Sec. 6, N.D. Const., and N.D.C.C. Sec. 28-27-01. The appeal and cross appeal are timely under Rule 4(a), N.D.R.App.P.

II

Iverson argues the trial court erred in dismissing his motion to change the visitation supervisor. A trial court's decision on modification of visitation is a finding of fact which will not be reversed unless clearly erroneous. Smith v. Smith, 534 N.W.2d 6, 12 (N.D.1995). A finding is clearly erroneous only when the reviewing court, based upon the entire evidence, is left with a definite and firm conviction that a mistake has been made. Dschaak v. Dschaak, 479 N.W.2d 484, 486 (N.D.1992).

A

The hearing on the motion to modify visitation was held on July 8, 1994. Iverson personally appeared with counsel, but shortly after the hearing began Iverson left the courtroom and did not return. Iverson's counsel informed the court Iverson was not feeling well. At the conclusion of the hearing, the court instructed Iverson's attorney to provide the court with a medical certification Iverson was unable to attend for medical reasons, otherwise the motion would be dismissed. When Iverson's attorney failed to provide an acceptable explanation for Iverson's absence from the hearing, the court dismissed the motion.

Byzewski testified supervision of visitations between Iverson and Jacob is necessary as a safeguard, because Iverson drank excessively in the past and has harshly disciplined Jacob, and she fears Iverson, who lives outside North Dakota, may "take off at anytime" with Jacob. Because he left the hearing, Iverson was not available to refute Byzewski's testimony. The trial court was not convinced Iverson had made an adequate showing to justify unsupervised visitation or a change of the supervisor. Having reviewed the record, we are not left with a definite and firm conviction the trial court made a mistake. We conclude the trial court's denial of Iverson's motion to modify visitation is not clearly erroneous.

B

Byzewski argues the trial court has no basis to continue the interim order, which sets visitations between Iverson and Jacob for alternating Tuesdays and Thursdays between 4 p.m. and 8 p.m. The court entered its interim order at an initial hearing when Iverson complained Byzewski and Jagow were not allowing visitations to occur. Byzewski's attorney, after conferring with Byzewski, told the court "[w]e have come to agreement" that a scheduled visitation of one day per week for a four-hour period would be acceptable to Byzewski, subject to later review. Evidence introduced at the July 8, 1994 hearing on this issue did not convince the trial court of a need to revert back to unscheduled visitations.

The purpose of visitation is to promote the best interests of the child. Dschaak at 487. Children are entitled to the love and companionship of both parents, and regularly scheduled visitation is an integral part of developing a healthy relationship between a child and the non-custodial parent. See Gardebring v. Rizzo, 269 N.W.2d 104, 110 (N.D.1978). Byzewski agreed...