Krueger v. Krueger

• Citation: 800 N.W.2d 296,2011 ND 134
• Decision Date: 13 July 2011
• Docket Number: No. 20100264.,20100264.
• Parties: Debra KRUEGER, n/k/a Deborah Bentz, Plaintiff and Appelleev.Gregory KRUEGER, Defendant and Appellant.
• Court: United States State Supreme Court of North Dakota

800 N.W.2d 296

2011 ND 134

Debra KRUEGER, n/k/a Deborah Bentz, Plaintiff and Appellee

v.Gregory KRUEGER, Defendant and Appellant.

No. 20100264.

Supreme Court of North Dakota.

July 13, 2011.

Diane F. Melbye, Dickinson, N.D., for plaintiff and appellee.Kent M. Morrow, Bismarck, N.D., for defendant and appellant.Rhonda R. Ehlis, Special Assistant Attorney General, Dickinson, N.D., for Southwest Area Child Support Enforcement Unit.SANDSTROM, Justice.

[¶ 1] Gregory Krueger appeals from the district court's order denying his motion to enforce visitation, and from the court's subsequent order increasing his child support obligation.¹ We affirm the denial of Krueger's motion, concluding the March 2009 order remains in effect and currently restricts full visitation. We reverse the order increasing Krueger's child support obligation, because the district court did not make independent, specific findings regarding his net income, and remand for these findings to be made.

I

[¶ 2] Gregory Krueger and Deborah Krueger, now known as Deborah Bentz, were married in 1992 and divorced in 1999. They had one child, L.K., who was born in 1994. Upon divorce, Bentz was given custody of L.K., but Krueger maintained liberal visitation rights. Numerous motions, mostly concerned with adjustments in visitation and child support, have been filed since the divorce.

[¶ 3] The district court amended its original judgment in 2003. This amended judgment allowed Bentz to retain custody of L.K. and restricted Krueger's visitation rights. Krueger's previously “unobstructed visitation” was altered to “reasonable visitation,” with contact time reduced and exchanges taking place at a safe visitation center. This arrangement continued until August 2007, when an incident occurred while L.K. was visiting Krueger. This incident allegedly turned physical, with both the 13–year–old L.K. and Krueger pushing each other. The relationship between L.K. and Krueger became strained, and all visitation apparently ceased following this incident.

[¶ 4] Krueger again moved to amend the judgment, seeking “a more detailed specific visitation schedule” that would restore his visitation with L.K. In 2009, the district court ordered visitation should resume in the form of joint counseling sessions between L.K. and Krueger. The court directed that these sessions “shall address all unresolved issues in the relationship between [L.K.] and Gregory.” Following these sessions, future unrestricted visitation was to proceed at the advice of the court-appointed therapist, Shelly Hall, Ph.D.: “Visitation shall then proceed to a neutral area outside Dr. Hall's office.... Once Dr. Hall determines that the original visitation outlined in the Judgment (or any amendments thereto) is beneficial, the said visitation shall resume as previously ordered.”

[¶ 5] After the new order was in place, the therapy sessions quickly broke down, and the unrestricted visitation contemplated in the order never materialized. Krueger again moved to amend the judgment and require visitation to occur. One month later, the Southwest Area Child Support Enforcement Unit separately moved to amend the judgment to increase Krueger's child support obligation because of an increase in income he was allegedly realizing from a new business venture.

[¶ 6] The district court heard testimony on both motions during the same hearing. Dr. Hall testified the six joint counseling sessions were not successful. She testified that L.K. refused to meet any further with his father and that it would be counterproductive to hold more sessions or force visitation between the two. Dr. Hall further noted in her written findings, “I do not feel it would be beneficial to force him to meet his father, although I do believe it is important for him to have a relationship. Forcing him to do this will likely only create even more resistance to this.”

[¶ 7] The court also interviewed L.K. in chambers. In its written order, the court found that the 16–and–a–half–year–old L.K. had “had it” with counselors, experts, and interviews. The district court further found that given time and autonomy, L.K. was in the best position to restore a relationship with his father. Given these findings, the court concluded in its order denying Krueger's motion that there was “nothing for the Court to order” and refused to establish a more specific visitation schedule between L.K. and Krueger.

[¶ 8] In a separate order, the district court amended its judgment to increase Krueger's child support obligation. The court did not specify how it arrived at its new net income figures, but rather stated its decision was based on a net monthly income of $37,515.00 and was made according to the North Dakota Child Support Guidelines. Krueger appeals both orders to this Court.

[¶ 9] On appeal, Krueger argues the district court erred when it concluded L.K.'s wishes were sufficient to deny Krueger's motion. He also contends the court erred in amending the judgment to increase his child support obligation.

[¶ 10] The district court had jurisdiction under N.D. Const. art. VI, § 8, and N.D.C.C. § 27–05–06. Krueger's appeal was timely under N.D.R.App.P. 4(a). This Court has jurisdiction under N.D. Const. art. VI, §§ 2 and 6, and N.D.C.C. § 28–27–01.

II

[¶ 11] Krueger argues the district court erred by relying on L.K.'s wishes in denying Krueger's motion to have a defined visitation schedule enforced. The now 17–year–old L.K. refuses to have contact with his father. The purpose of visitation is addressed by statute:

After making an award of custody, the court, upon request of the noncustodial parent, shall grant such rights of visitation 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 visitation is likely to endanger the child's physical or emotional health.

N.D.C.C. § 14–05–22(2) (1993). The current version of the statute remains unchanged except that references to “custody” and “visitation” are replaced with the new terms. See N.D.C.C. § 14–05–22(2) (2009).

[¶ 12] Under the statute, visitation is the child's right and is presumed to be in the child's best interest. Schmidt v. Schmidt, 2003 ND 55, ¶ 14, 660 N.W.2d 196. “A trial court's decision on visitation is a finding of fact that will not be reversed unless it is clearly erroneous.” Id. “A finding of fact is clearly erroneous only if it is induced by an erroneous view of the law, if there is no evidence to support it, or if, upon review of the entire evidence, we are left with a definite and firm conviction a mistake has been made.” Id.

[¶ 13] While the district court may not rely solely on the child's wishes, they are a relevant consideration in the best interests of the child analysis. In Dufner v. Trottier, 2010 ND 31, 778 N.W.2d 586, we affirmed the modification of a visitation schedule that was made after considering the wishes of the teenage children. The district court found “that the children are frustrated with the incessant bickering between Dufner and Trottier” and took into consideration their preferences in modifying the visitation schedule. Id. at ¶ 10. These preferences were considered in the best interests of the child analysis along with other factors such as increased travel demands associated with the children's extracurricular activities and the escalating conflict between the parents over these travel issues. Id. at ¶ 8.

[¶ 14] As in Dufner, the district court did not solely rely upon L.K.'s wishes in reaching its decision, but rather considered them along with other evidence in concluding what was in L.K.'s best interests. The record indicates considerable weight was also given to the opinions and recommendations of Dr. Hall. The district court denied Krueger's motion in this case, meaning that the March 2009 order is still in effect. This order suspended the past visitation schedule and made future unrestricted visitation conditional on the success of therapy sessions conducted by Dr. Hall. After addressing “all unresolved issues in the relationship between [L.K.] and Krueger,” visitation was to progress to a neutral area. Once Dr. Hall recommended to the court that the previous visitation schedule would be effective, only then would the court consider reinstating his previous visitation rights.

[¶ 15] These rights were never fully reinstated, largely because Dr. Hall was unequivocal in her testimony that the previous visitation schedule would not be beneficial to the parties. Regarding forced visitation, Dr. Hall testified:

With my experience with adolescents, as well as adults, when we're forced to do things that we don't want to do, it generally creates more resistance to doing that, so in likelihood I would say that he's probably going to become more and more resistant to doing it. It's not going to create a positive relationship.

When asked directly whether it would be more beneficial if contact with Krueger were initiated by L.K. or by court order, Dr. Hall responded, “In my opinion it would be much better if [L.K.] were allowed to initiate that relationship on his own when he decides he's ready to do that.” The court then summarized Dr. Hall's testimony by posing a question directly to her:

Q Well, the Court bluntly is of the opinion that at this stage I don't see that it is going to be beneficial to anybody to order a 16–and–a–half–year–old boy—young man to be more specific—that he is going to have to resume a relationship with his father, and if he doesn't, the sheriff's office is going to escort him to those Court-ordered visitations. I'm of the opinion that there is a good prospect that [L.K.] and his father are going to be able to reestablish a relationship, but there is little, if anything, the district court can do at this point by any further Court-ordered, enforced counseling or mediation sessions. That's basically what I'm hearing your professional opinion as being,...