Lessard v. Johnson

• Decision Date: 17 December 2019
• Docket Number: No. 20190077,20190077
• Citation: 936 N.W.2d 528
• Parties: Julie LESSARD, Plaintiff and Appellee v. Kevin JOHNSON, Defendant and Appellant
• Court: North Dakota Supreme Court

936 N.W.2d 528

Julie LESSARD, Plaintiff and Appellee

v.Kevin JOHNSON, Defendant and Appellant

No. 20190077

Supreme Court of North Dakota.

Filed December 17, 2019

Michael L. Gjesdahl, Fargo, ND, for plaintiff and appellee; submitted on brief.

Kristin A. Overboe, Fargo, ND, for defendant and appellant; submitted on brief.

Crothers, Justice.

[¶1] Kevin Johnson appeals from an amended judgment granting Julie Lessard a divorce and from orders denying his motions for a new trial and for contempt. Johnson argues the district court erred in denying his motion for a new trial, deciding primary residential responsibility for the parties’ children, dividing the marital estate, and denying his motion for contempt. We affirm.

I

[¶2] Johnson and Lessard were married in 2006, and have three minor children together. In 2018 Lessard sued for divorce, requesting the district court award her primary residential responsibility for the parties’ children, order Johnson to pay child support, and equitably distribute the parties’ assets and debts. Johnson responded and requested the court award him primary residential responsibility for the children, child support, spousal support, an equitable division of the marital estate, and attorney’s fees. The parties filed a joint asset and debt listing under N.D.R.Ct. 8.3.

[¶3] The trial was scheduled for October 2, 2018, but was rescheduled to December 6, 2018. Johnson’s attorney moved to withdraw as counsel, which the district court granted on October 31, 2018. On November 30, 2018, Johnson’s new counsel filed a notice of appearance. On December 4, 2018, Johnson moved for a continuance, arguing he recently hired a new attorney, Lessard hampered his efforts to do so because she controlled marital funds, and she was unwilling to give him enough money to hire an attorney. The court denied Johnson’s motion.

[¶4] After a court trial, the district court awarded Lessard primary residential responsibility for the children, awarded Johnson parenting time, ordered Johnson’s child support obligation was $0 per month, and ordered neither party shall pay the other spousal support. The court also divided the marital estate and ordered that each party was responsible for his or her own attorney’s fees. Judgment was entered, and was later amended.

[¶5] On March 6, 2019, Johnson moved to modify primary residential responsibility for the children. He also moved for a new trial and relief from the judgment, arguing the irregularities in the proceedings, including the district court’s denial of his motion for a continuance, prevented him from having a fair trial. He argued the court’s property division was not equitable and the court did not explain the disparity in the division, and the court did not properly apply the best interest factors in deciding primary residential responsibility for the children. Johnson also moved to amend the judgment and to hold Lessard in contempt. Lessard opposed the motions. The district court denied Johnson’s post-judgment motions. Johnson timely appealed.

II

[¶6] Johnson argues the district court erred by denying his motion for a new trial under N.D.R.Civ.P. 59 because the court’s failure to grant his request for a continuance prejudiced the presentation of his case and deprived him of an equal opportunity to prepare for trial. He claims he requested a continuance for good cause because Lessard controlled the marital funds and she refused his request for money, which restricted his efforts to find an attorney.

[¶7] A district court has discretion in deciding whether to grant or deny a motion for a new trial under N.D.R.Civ.P. 59(b). Riddle v. Riddle , 2018 ND 62, ¶ 5, 907 N.W.2d 769. Our review of the court’s decision is limited to deciding whether the court manifestly abused its discretion. Id. A district court abuses its discretion when it acts in an arbitrary, unreasonable, or unconscionable manner, it misinterprets or misapplies the law, or when its decision is not the product of a rational mental process leading to a reasoned determination. Id.

[¶8] Under N.D.R.Civ.P. 59(b)(1), a court may grant a motion for a new trial on the grounds of "irregularity in the proceedings of the court, jury, or adverse party, or any court order or abuse of discretion that prevented a party from having a fair trial[.]" Under N.D.R.Ct. 6.1(b) a motion for a continuance "shall be promptly filed as soon as the grounds therefor are known and will be granted only for good cause shown[.]"

[¶9] The district court denied Johnson’s motion for a new trial. The court explained that the parties were told to be ready for trial on October 2, 2018, written discovery was closed, the parties engaged in mediation, the parties essentially agreed to the financial items, and primary residential responsibility for the children remained an issue. The court found Johnson’s first attorney withdrew on October 31, 2018, new counsel filed a notice of appearance on November 30, 2018, and Johnson moved for a continuance two days before trial on December 4, 2018. The court found Johnson knew he needed new counsel but he waited one month before acquiring new counsel and he failed to show how the failure to grant a continuance was an irregularity in the proceedings of the court that prevented him from having a fair trial. The court found each party was allowed time to present their case, almost all of the parties’ exhibits were accepted, each party was allowed to testify, and the failure to grant a continuance did not prevent a fair trial.

[¶10] Johnson failed to establish the district court abused its discretion by denying his motion for a new trial. We conclude the court did not act in an arbitrary, unreasonable, or unconscionable manner by denying Johnson’s motion for a new trial.

III

[¶11] Johnson argues the district court erred in awarding Lessard primary residential responsibility for the parties’ children. He contends the court failed to consider relevant best interest factors and erred by finding his alcoholism played a significant role in weighing the best interest factors because he had been sober for more than one year at the time of the court’s decision.

[¶12] Our review of a district court’s decision on primary residential responsibility is limited:

"A district court’s decisions on [primary residential responsibility] ... are treated as findings of fact and will not be set aside on appeal unless clearly erroneous. 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. Under the clearly erroneous standard of review, we do not reweigh the evidence or reassess the credibility of witnesses, and we will not retry a [primary residential responsibility] case or substitute our judgment for a district court’s initial [primary residential responsibility] decision merely because we might have reached a different result. A choice between two permissible views of the weight of the evidence is not clearly erroneous, and our deferential review is especially applicable for a difficult [primary residential responsibility] decision involving two fit parents."

Grasser v. Grasser , 2018 ND 85, ¶ 17, 909 N.W.2d 99 (quoting Thompson v. Thompson , 2018 ND 21, ¶ 7, 905 N.W.2d 772 ).

[¶13] The district court must award primary residential responsibility to the parent who will best promote the children’s best interests and welfare. Dick v. Erman , 2019 ND 54, ¶ 7, 923 N.W.2d 137. The court must consider the relevant best interest factors under N.D.C.C. § 14-09-06.2 in deciding primary residential responsibility. Zuo v. Wang , 2019 ND 211, ¶ 11, 932 N.W.2d 360. The court is not required to make separate findings for each best interest factor, but the court’s findings must contain sufficient specificity to show the factual basis for the primary residential responsibility decision. Rustad v. Baumgartner , 2018 ND 268, ¶ 4, 920 N.W.2d 465.

[¶14] Johnson argues the district court did not make any findings about best interest factors (b), (d), (f), (h), and (i), and nothing indicates the court considered those factors. He also contends the court’s reasoning is not rational because it found he had been sober for more than a year but also found his history of alcoholism was a predominant factor in deciding primary residential responsibility.

[¶15] The district court considered the best interest factors and made findings about relevant factors. It is clear from the court’s findings that Johnson’s drinking weighed heavily in favor of awarding primary residential responsibility to Lessard. The court found Johnson’s alcoholism impaired his emotional ties with the children and his ability to tend to the children’s developmental needs, and it adversely affected his relationship with the children. The court found factors (a), (c), (g), and (j) favored Lessard. In finding factor (a), the ability of each parent to provide the children with love and affection, favored Lessard, the court found "[Johnson’s] drinking, and its effect on his temperament, judgment, and focus, impair the children’s emotional ties with him and his ability to provide them emotional sustenance and guidance." The court found factor (c), the children’s developmental needs, favored Lessard because she played a stronger role in the children’s educational and social lives and Johnson was not entirely supportive of the children making and maintaining friendships. The court found factor (g), the parties’ health, was the predominant best interest factor and it strongly favored Lessard, explaining:

"[Johnson] is an alcoholic who has been an active drinker throughout the parties’ marriage. He has been diagnosed, as suffering ‘Alcohol Use Disorder, Severe,’ and has been in recovery for approximately one year having enrolled in treatment after being removed from the marital home.

"[Johnson’s] drinking adversely

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