Kershaw v. Finnson
| Docket Number | 20210355 |
| Decision Date | 01 September 2022 |
| Parties | Jacob Dalles KERSHAW, Plaintiff and Appellee v. Shelby Lynn FINNSON, Defendant and Appellant and State of North Dakota, Statutory Real Party in Interest |
| Court | North Dakota Supreme Court |
Pamela F. Coleman, Grand Forks, ND, for plaintiff and appellee.
Sarah M. Kyte, Grand Forks, ND, for defendant and appellant.
[¶1] Shelby Finnson appeals from a judgment awarding primary residential responsibility of the parties’ minor child to Jacob Kershaw. She claims the district court's findings are unsupported by the record; the court's parenting time decision is unreasoned; the court erred when it allowed Kershaw to call an undisclosed witness for purposes of rebuttal; and the presiding judge erred because he failed to certify himself as familiar with the record. We affirm the judgment.
[¶2] The parties lived together but never married. Their child was born in 2019. On August 6, 2020, two days after they separated, Kershaw sued for primary residential responsibility of the child. Along with his complaint, Kershaw filed an application for an ex parte interim order requesting temporary custody. The next day, on August 7, 2020, Finnson filed an ex parte petition for a domestic violence protection order. The parties’ filings resulted in two conflicting orders from different judges granting temporary custody of the child to the other parent. In the primary residential responsibility case, Judge Hager entered a temporary ex parte order awarding custody of the child to Kershaw. In the protection order case, Judge Knudson entered a temporary protection order granting custody to Finnson. Judge Knudson later amended his protection order to remove the provision granting custody to Finnson.
[¶3] On August 28, 2020, for reasons not clear from the record, Judge McCarthy held a combined hearing on both cases and found Kershaw had engaged in domestic violence. He explained he would enter a protection order and he discussed the terms. He then addressed the primary residential responsibility dispute:
I will now turn to that and the interim order. After hearing the testimony, I am going to amend[ ] the interim order and grant Shelby primary residential responsibility and primary decision making responsibility of the minor child ... subject to Jacob's right to reasonable parenting time.
Judge McCarthy entered a six-month protection order granting temporary custody of the child to Finnson. On September 16, 2020, Judge McCarthy subsequently entered an interim order in the primary residential responsibility case. The order notes the matter was heard "in conjunction with a hearing on Shelby's application for a Domestic Violence Protection Order." The order awarded Finnson temporary primary residential responsibility and Kershaw parenting time every other weekend.
[¶4] On August 18, 2021, Judge Hager held a two-day trial on the issues of primary residential responsibility and child support. Each party testified in addition to their parents or step-parents. Judge Hager also allowed Kershaw to call an undisclosed private investigator after Finnson rested her case. Judge Hager entered an order for judgment granting primary residential responsibility to Kershaw. He awarded Finnson parenting time every other weekend and an additional week each month during the summer.
[¶5] Finnson argues the district court erred by allowing Kershaw's counsel to ask her questions on cross-examination that were beyond the scope of Finnson's direct testimony. She claims Kershaw did so for the sole purpose of calling his private investigator as an undisclosed rebuttal witness. Finnson asserts this amounts to an unfair surprise and the court should have granted her a continuance.
[¶6] We review a district court's decision on evidentiary matters for an abuse of discretion. State v. Peltier , 2016 ND 75, ¶ 3, 878 N.W.2d 68. "A trial court abuses its discretion when it acts arbitrarily, unconscionably, or unreasonably, or when its decision is not the product of a rational mental process." Id. (quoting Davis v. Killu , 2006 ND 32, ¶ 6, 710 N.W.2d 118 ). A party must make a specific objection at the time evidence is offered to give opposing counsel an opportunity to argue the objection and the court the opportunity to fully understand the objection and rule appropriately. May v. Sprynczynatyk , 2005 ND 76, ¶ 26, 695 N.W.2d 196. "Under N.D.R.Ev. 103, a district court's decision whether to allow or to exclude evidence will not be reversible error unless the party objected to the court's decision and the party's substantial rights were affected." Command Ctr., Inc. v. Renewable Res., LLC , 2021 ND 59, ¶ 22, 956 N.W.2d 755.
[¶7] Finnson objected when Kershaw sought to introduce evidence concerning an online dating account because it was beyond the scope of her direct testimony. She also objected near the beginning of the private investigator's testimony when Kershaw sought to offer his surveillance notes. She did not object to the line of questioning that the investigator was called to rebut. Nor did she request a continuance or object generally to the investigator's testimony based on unfair surprise. Absent a specific objection on these evidentiary issues, we hold the district court did not abuse its discretion.
[¶8] Finnson argues the district court erred when it awarded primary residential responsibility to Kershaw. Finnson challenges the court's findings regarding domestic violence. She also asserts the court erred by uncritically adopting Kershaw's proposed findings, which she claims are unsupported by the record.
[¶9] A district court's primary residential responsibility decision is a finding of fact that we analyze under the clearly erroneous standard of review. Iakel-Garcia v. Anderson , 2021 ND 210, ¶ 6, 966 N.W.2d 892.
A finding of fact is clearly erroneous if it is induced by an erroneous view of the law, if no evidence supports it, or if this Court, on the entire record, is left with a definite and firm conviction a mistake has been made. Under the clearly erroneous standard, we do not reweigh the evidence nor reassess the credibility of witnesses, and we will not retry a custody case or substitute our judgment for a district court's initial primary residential responsibility decision merely because we might have reached a different result.
Vetter v. Vetter , 2020 ND 40, ¶ 8, 938 N.W.2d 417 (internal quotations and citations omitted).
[¶10] The district court must award primary residential responsibility of a child to the parent who will promote the child's best interests and welfare. Boldt v. Boldt , 2021 ND 213, ¶ 7, 966 N.W.2d 897. When making its determination, the court must consider the N.D.C.C. § 14-09-06.2(1) best interest factors, which are:
[¶11] Finnson argues the district court erred by finding there was no credible evidence of domestic violence and declining to apply the statutory domestic violence presumption.
[¶12] Under N.D.C.C. § 14-09-06.2(1)(j), the district court must consider evidence of domestic violence when determining parental rights and responsibilities. Domestic violence, as defined by N.D.C.C. § 14-07.1-01(2), includes:
physical harm, bodily injury, sexual activity compelled by physical force, assault, or the infliction of fear of imminent physical harm, bodily injury, sexual activity compelled by physical force, or assault, not committed in self-defense, on the complaining family or household members.
When the court finds there is "one incident of domestic violence which resulted in serious bodily injury or involved the use of a dangerous weapon or there exists a pattern of domestic violence," a rebuttable presumption arises against awarding primary residential responsibility to the culpable parent. N.D.C.C. § 14-09-06.2(1)(j). The district court "may consider, but is not bound by, a finding of domestic violence in another proceeding under chapter 14-07.1." Id.
[¶13] Here, ruling from the bench in the protection...
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