Miller v. Mees, 20110020.

• Court: United States State Supreme Court of North Dakota
• Citation: 802 N.W.2d 153,2011 ND 166
• Docket Number: No. 20110020.,20110020.
• Parties: Clint MILLER, Plaintiff and Appelleev.Julie MEES, Defendant and Appellant.
• Decision Date: 18 August 2011

802 N.W.2d 153
2011 ND 166

Clint MILLER, Plaintiff and Appellee
v.
Julie MEES, Defendant and Appellant.

No. 20110020.

Supreme Court of North Dakota.

Aug. 18, 2011.

[802 N.W.2d 154]

Stacy Mae Moldenhauer, Bismarck, N.D., for plaintiff and appellee.Justin Dale Hager, Bismarck, N.D., for defendant and appellant.VANDE WALLE, Chief Justice.

[¶ 1] Julie Mees appealed from a judgment granting Clint Miller primary residential responsibility of the parties' minor child. Mees argues the court erred in basing its decision on Miller's affidavits, which were not presented in open court, and in awarding Miller primary residential responsibility of the child. We affirm, concluding the court's reference to Miller's affidavits is not reversible error and the court's decision to award Miller primary residential responsibility is not clearly erroneous.

I

[¶ 2] Miller and Mees were never married, but lived together for about two years and had one child together. Mees has another child about one year older than the parties' child. In 2007 the parties separated, and in June 2009, Miller brought this action seeking primary residential responsibility of the parties' minor child. Miller claimed Mees had denied him visitation with the child and sought an interim order for visitation. Mees answered and sought primary residential responsibility of the child. The district court issued an interim order, granting Mees primary residential responsibility of the child and awarding Miller parenting time.

[¶ 3] In September 2009, Mees obtained a temporary domestic violence protection order against Miller, alleging he had sexually abused the child during visitation in September 2009. A police report indicated the allegations were “unfounded,” and after further proceedings, the court dismissed the temporary order, concluding there was insufficient evidence to justify a permanent domestic violence protection order. The court reinstated visitation required under the interim order.

[¶ 4] In October 2009, Miller moved to hold Mees in contempt, claiming he had been denied visitation in September 2009, and he submitted an affidavit in support of his motion. The court dismissed Miller's motion, stating the temporary domestic violence protection order preempted the disputed visitation.

[802 N.W.2d 155]

[¶ 5] Barbara Oliger, a court-appointed parenting investigator, filed a parenting investigation report with the district court in June 2010, in which she evaluated the factors for the best interests and welfare of the child under N.D.C.C. § 14–09–06.2 and recommended that Miller receive primary residential responsibility of the child. At a July 2010 trial, Mees was represented by counsel and Miller represented himself. Oliger, Mees, and Miller testified at trial. The court thereafter awarded Miller primary residential responsibility of the child after making findings under the best-interests factors listed in N.D.C.C. § 14–09–06.2. The court's decision stated “Miller did not offer extensive testimony at trial, but his affidavits are in the file and he was available for cross examination on those affidavits.”

II

[¶ 6] Relying on N.D.R.Civ.P. 43, Mees argues the district court erred in basing its custody decision on evidence that was not presented in open court. She claims the court committed reversible error in considering Miller's affidavits to make its custody decision.

[¶ 7] At the time of the July 2010 trial in this action, N.D.R.Civ.P.43(a),¹ provided, in part:

In every trial, the testimony of witnesses must be taken orally or by non-oral means in open court, unless otherwise provided by statute or these rules. Testimony must be taken orally unless a witness is unable to reasonably communicate orally. All evidence must be admitted which is admissible under the statutes of this state, the North Dakota Rules of Evidence, or other rules adopted by the North Dakota Supreme Court.

[¶ 8] Rule 43(a), N.D.R.Civ.P., provides the general rule that witnesses' testimony must be taken in open court and expresses a preference for oral testimony unless otherwise provided by statute or procedural rules. See Lawrence v. Delkamp, 2008 ND 111, ¶ 12, 750 N.W.2d 452 (plurality opinion discussing pre–2011 rule); In Interest of Gust, 345 N.W.2d 42, 44–45 (N.D.1984) (decided under pre–1999 rule providing that testimony of witnesses shall be taken orally in open court unless otherwise provided by statute or rules). See generally 9A Charles Alan Wright and Arthur J. Miller, Federal Practice and Procedure: Civil § 2414 (3rd ed.2008) (discussing similar provisions of parallel federal rule and identifying preference for oral testimony). Our rules allow evidence to be submitted by affidavits for some motions. See N.D.R.Civ.P. 43(d) (evidence on motions); N.D.R.Ct. 8.2 (interim orders). However, N.D.R.Civ.P. 43 generally requires oral testimony at trial and does not allow trial by affidavit, and we conclude the district court erred to the extent its decision cited Miller's affidavits and to the extent the court may have relied on those affidavits for the custody decision. Under N.D.R.Civ.P. 61, however, harmless errors and defects that do not affect substantial rights may be disregarded.

[¶ 9] This record reflects the district court's custody decision relied primarily on

[802 N.W.2d 156]

information in Oliger's parenting investigation report. Oliger's report was filed with the district court in June 2010. See N.D.C.C. § 14–09–06.3(3) and N.D.R.Ct. 8.6. The best-interests factors for...