Keita v. Keita

• Decision Date: 27 November 2012
• Docket Number: No. 20110252.,20110252.
• Parties: Jennifer Anne KEITA, Plaintiff and Appellee v. Mohamed Founeke KEITA, Defendant and Appellant.
• Court: North Dakota Supreme Court

823 N.W.2d 726

2012 ND 234

Jennifer Anne KEITA, Plaintiff and Appellee

v.Mohamed Founeke KEITA, Defendant and Appellant.

No. 20110252.

Supreme Court of North Dakota.

Nov. 27, 2012.

Patti Jo Jensen, East Grand Forks, MN, for plaintiff and appellee.

Rebecca C. Graves, St. Paul, MN, for defendant and appellant.

KAPSNER, Justice.

[¶ 1] Mohamed Keita appeals from a divorce judgment awarding Jennifer Keita primary residential responsibility for the parties' minor child, granting Mohamed Keita supervised parenting time for the child, denying Mohamed Keita joint decision-making authority for the child, distributing the parties' marital property, awarding Jennifer Keita attorney fees, and reserving jurisdiction for a future spousal support award. We conclude the district court did not err in awarding of attorney fees and distributing property, but we conclude the court erred in awarding supervised parenting time, child support, and in reserving jurisdiction for future spousal support. We affirm in part, reverse in part, and remand for further proceedings.

I

[¶ 2] In 2006, Jennifer Keita and Mohamed Keita were married in Atlanta, Georgia. They had one child, born in 2008. In June 2010, the parties separated, and in September 2010, Jennifer Keita began this divorce action against Mohamed Keita. The district court entered a temporary order, granting the parties possession and use of their separate residences and vehicles, awarding Jennifer Keita sole decision-making authority and primary residential responsibility for the parties' child, awarding Mohamed Keita parenting time via webcam or telephone, and implementing restraining provisions regarding contact between the parties. The temporary restraining provisions were the result of a stipulated dismissal of a disorderly conduct restraining order Jennifer Keita had previously obtained against Mohamed Keita in November 2010, which was based on his contact with her via text and voice mail messages.

[¶ 3] After a bench trial, the district court divided the parties' marital property, ordered Mohamed Keita to pay a cash property distribution to Jennifer Keita, awarded Jennifer Keita primary decision-making and residential responsibility for the child, and awarded Mohamed Keita supervised parenting time. The court also ordered Mohamed Keita to pay child support to Jennifer Keita, denied Mohamed Keita's request for a downward deviation of his child support obligation for parenting time expenses, and awarded Jennifer Keita attorney fees. After appealing to this Court, Mohamed Keita asked the district court judge to disqualify herself arguing the judge was biased against him because of his national origin, race, and religion. The district court subsequently concluded it was without jurisdiction to address the issue pending appeal.

II

[¶ 4] Mohamed Keita argues that the district court erred in awarding him supervised parenting time for the child based, in part, upon his status as a Muslim and a citizen of Mali, West Africa.

[¶ 5] Section 14–05–22(2), N.D.C.C., provides that “upon request of the other parent, [the court] shall grant such rights of parenting time as will enable the child to maintain a parent-child relationship that will be beneficial to the child, unless the court finds, after a hearing, that such rights of parenting time are likely to endanger the child's physical or emotional health.” “ ‘In awarding [parenting time] to the non-custodial parent, the best interests of the child, rather than the wishes or desires of the parents, are paramount.’ ” Wolt v. Wolt, 2010 ND 26, ¶ 38, 778 N.W.2d 786 (quoting Bertsch v. Bertsch, 2006 ND 31, ¶ 5, 710 N.W.2d 113);seeN.D.C.C. § 14–09–06.2 (providing “best interest” factors). A district court's decision on parenting time is a finding of fact, which we review under the clearly erroneous standard of review. Wolt, at ¶ 38;Bertsch, at ¶ 5. “A finding of fact is clearly erroneous if it is induced by an erroneous view of the law, if no evidence exists to support it, or if the reviewing court, on the entire evidence, is left with a definite and firm conviction a mistake has been made.” Wolt, at ¶ 7 (quotations omitted). A district court's factual findings should be stated with sufficient specificity to enable this Court to understand the basis for its decision. See Marsden v. Koop, 2010 ND 196, ¶ 21, 789 N.W.2d 531.

[¶ 6] “[O]ur statutes and case law recognize that [parenting time] with a noncustodial parent may be curtailed or eliminated entirely if it is likely to endanger the child's physical or emotional health.” Marquette v. Marquette, 2006 ND 154, ¶ 9, 719 N.W.2d 321. This Court has said a restriction on parenting time must be supported by a preponderance of the evidence and “ ‘accompanied by a detailed demonstration of the physical or emotional harm likely to result from visitation.’ ” Wolt, 2010 ND 26, ¶ 38, 778 N.W.2d 786 (quoting Marquette, at ¶ 9).

[¶ 7] Here, in awarding Mohamed Keita supervised parenting time, the district court considered the best interest factors. The court found Mohamed Keita is not a United States citizen, but rather a citizen of Mali, West Africa, and he had not been to Mali since 1999. Although Mohamed Keita testified he had permanent residency status since 2008 in the United States, the court found he “offered no documentation” to prove the status and there was “uncertainty” as to his status and “uncertainty” as to the impact the divorce would have on the status. The court found that Mohamed Keita's father had two wives in Mali and is a polygamist, which the Court noted was legal and appropriate in Mali. The court found Mohamed Keita has three siblings who live in Mali and the United States and half-siblings who live in Mali and Canada. Mohamed Keita testified he did not have a significant relationship with his parents, and the court found his extended family did not appear to have a significant, if any, relationship with the child.

[¶ 8] The district court further found the child did not yet have a United States passport and the child's birth certificate was missing. The court found the child had resided with Jennifer Keita since her birth and Jennifer Keita had remained home with the child during the first couple of years Jennifer Keita was a college professor. While the parties lived together, the court found Mohamed Keita spent minimal time with the child due to work and school. The court also found he had very limited contact with the child since the parties' separation in June 2010, no personal contact with the child other than telephonically from July to October 2010, and a supervised visit with the child in October 2010. The court found that from October 2010 until the time of trial, Mohamed Keita had no personal contact with the child and did not request parenting time. The court found, however, that he did have contact with the child via Skype three times a week after entry of the February 2011 temporary order, which the court found “went well.”

[¶ 9] Although the court did not find evidence of domestic violence under N.D.C.C. § 14–09–06.2(1)(j), the court found Mohamed Keita's “angry behaviors” and harassment of Jennifer Keita, necessitating the temporary disorderly conduct restraining order, caused concern for the safety of Jennifer Keita and the child. The district court found three instances when Mohamed Keita had “difficulty controlling his anger” during the marriage. One incident occurred early in the marriage when the parties returned home after an argument and Mohamed Keita broke down or pushed in their apartment door after Jennifer Keita had locked him out. Another incident occurred just prior to their child's birth when Mohamed Keita physically restrained Jennifer Keita from leaving their home late at night. A final incident occurred when Mohamed Keita knocked a book of his writings, described by Jennifer Keita as degrading, out of her hand and scratched her, resulting in a physical altercation and police intervention with no arrests. Jennifer Keita also testified, without specifics, that Mohamed Keita abused her during sexual relations and had no concern for her. Jennifer Keita testified that she continued to be fearful of Mohamed Keita.

[¶ 10] The district court also found that Mohamed Keita had violated the November 2010 temporary disorderly conduct restraining order by sending Jennifer Keita an anniversary card, but there were no charges filed against him. The court also found that prior to the hearing on the permanent disorderly conduct restraining order, the parties stipulated it could be dismissed upon entry of the temporary order in this divorce case, which was issued on February 2011. Jennifer Keita testified that she continues to be fearful of Mohamed Keita. The court also found that Mohamed Keita had used pornography during the marriage, and that he admitted to possessing pornographic DVDs. The court found he admitted the DVDs would be harmful to the child if the child saw them, but the court also found there was no indication the pornography negatively affected the child.

[¶ 11] In awarding supervised parenting time, the district court considered that Mohamed Keita had limited physical contact with the child, that Jennifer Keita was the child's primary care giver, and that Mohamed Keita had not requested any parenting time with the child for six months. However, Mohamed Keita explained his absence, testifying at trial that he believed he was prevented from contact with the child by the temporary restraining order. While the court's findings of Mohamed Keita's alleged lack of involvement in the child's life, his “angry behaviors” and harassment, his possession of pornography, and his failure to provide support may justify supervised visitation, the court's findings here lack sufficient specificity regarding the potential harm to the child with the requisite showing of a likelihood of endangerment to the child's physical or emotional health. The court...