Paulson v. Paulson, 20040242.
| Decision Date | 06 April 2005 |
| Docket Number | No. 20040242.,20040242. |
| Citation | 2005 ND 72,694 N.W.2d 681 |
| Parties | Lisa Barnhart PAULSON, Plaintiff and Appellant, v. Benjamin B. PAULSON, Defendant and Appellee. |
| Court | North Dakota Supreme Court |
Valeska A. Hermanson, McKennett Stenehjem Reierson Forsberg & Hermanson, P.C., Williston, N.D., for plaintiff and appellant.
Ronald A. Reichert, Reichert & Herauf, P.C., Dickinson, N.D., for defendant and appellee.
Sandra Kay Kuntz, Guardian ad Litem, Mackoff, Kellogg, Kirby & Kloster, Dickinson, N.D.
[¶ 1] Lisa Barnhart Paulson ("Barnhart") appealed from a judgment granting her and Benjamin B. Paulson a divorce and awarding custody of their son to Benjamin Paulson with restricted supervised visitation for Barnhart. We affirm the custody award to Paulson but reverse and remand for a redetermination of Barnhart's visitation privileges.
[¶ 2] Barnhart and Paulson were married on July 26, 2001. They had two children of their marriage; a son, who was two years old at the time of the divorce proceedings, and a daughter, who was only two months old when she and Barnhart were involved in a car accident in January 2003, which resulted in the child's death and severe injuries to Barnhart. The parties separated in September 2003 and Barnhart filed for divorce. Upon allegations of possible sexual abuse by Paulson against the son and because of inconclusive medical examinations to verify or refute the allegations, the boy was placed in foster care on March 15, 2004. Proceedings were subsequently held in juvenile court to resolve allegations the boy was a deprived child. The juvenile court entered an order on July 2, 2004 placing the boy in Paulson's custody with limited supervised visitation for Barnhart.
[¶ 3] After a hearing on the divorce complaint, the court dissolved the parties' marriage on the ground of irreconcilable differences and awarded custody of their son to Paulson with supervised visitation for Barnhart "as determined by Dr. Angela Cavett." The court also divided the parties' marital property and ordered Barnhart to pay child support of $168 per month. Barnhart's appeal concerns that part of the judgment awarding custody to Paulson and granting her restricted visitation privileges.
[¶ 4] Barnhart asserts the trial court denied her a fair trial because the court appointed Sandra Kuntz to act in the capacity of both custody investigator and guardian ad litem for the son. Barnhart asserts that as custody investigator Kuntz acted as the child's advocate in violation of Rule 8.6, N.D.R.Ct., and Kuntz testified at the hearing in violation of the permissible responsibilities of a guardian ad litem under Rule 8.7, N.D.R.Ct.
[¶ 5] Relevant to this issue, Rule 8.6, N.D.R.Ct., provides:
(c) Court Proceedings. A custody investigator shall attend all court proceedings and shall testify when requested. A custody investigator may not call a witness, question a witness, file a motion, or act as a legal advocate.
Rule 8.7, N.D.R.Ct., provides, in relevant part:
Barnhart also relies on the explanatory note to Rule 8.7, N.D.R.Ct., which provides, in relevant part:
The role of a guardian ad litem is to act as an attorney. A guardian ad litem is not to act as a custody investigator by preparing a custody investigation report or giving testimony.
Rule 8.6(c), N.D.R.Ct., provides that a custody investigator may not call or question a witness or act as a legal advocate. The note to Rule 8.7, N.D.R.Ct., explains that a guardian ad litem is not to act as a custody investigator or give testimony. When, however, a guardian ad litem files a report and recommendation the parties have a right to call the guardian ad litem as a witness and to cross-examine the guardian ad litem with leading questions. See Goff v. Goff, 2000 ND 57, ¶ 10, 607 N.W.2d 573
. It is within the trial court's discretion to assign the weight to be given to a guardian ad litem's testimony and recommendation. Hogan v. Hogan, 2003 ND 105, ¶¶ 10-11, 665 N.W.2d 672.
[¶ 6] In this case, the court initially appointed Kuntz as custody investigator. Later, upon stipulation of the parties, the court amended its order and appointed Kuntz to act as both custody investigator and guardian ad litem for the child. Barnhart made no objection to Kuntz acting in this capacity until after Kuntz had submitted her final report, which in effect was an investigative report, wherein she recommended that custody be awarded to Paulson. A person may waive all rights and privileges to which that person is legally entitled, whether secured by contract, conferred by statute, or guaranteed by the constitution. Toni v. Toni, 2001 ND 193, ¶ 10, 636 N.W.2d 396. A waiver occurs when a person voluntarily and intentionally relinquishes a known right or privilege. Pfeifle v. Tanabe, 2000 ND 219, ¶ 18, 620 N.W.2d 167. Waiver may be established either by an express agreement or by inference from acts or conduct. Id. The existence of waiver is generally a question of fact, but if circumstances of an alleged waiver are admitted or clearly established and reasonable persons can draw only one conclusion from those circumstances, the existence of waiver is a question of law. Id.
[¶ 7] It is undisputed the parties agreed to have the court appoint one person to act as both custody investigator and guardian ad litem for the child in this case. Under these circumstances, we conclude, as a matter of law, Barnhart waived her right to object that Kuntz was acting in violation of Rule 8.6, N.D.R.Ct., when she proceeded as the child's advocate or that she violated Rule 8.7, N.D.R.Ct., when she testified at the hearing.
[¶ 8] Barnhart asserts the trial court made two findings of fact regarding the issue of custody which are clearly erroneous. The court's custody determination is a finding of fact which will not be reversed unless it is clearly erroneous. Krank v. Krank, 2003 ND 146, ¶ 6, 669 N.W.2d 105. A finding of fact is clearly erroneous only 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. Id.
[¶ 9] The trial court found:
Allegations of sexual abuse were investigated by the Bureau of Criminal Investigation, including numerous interviews with Benjamin Paulson, a forensic examination of [the child], and polygraph examinations of Lisa Barnhart Paulson and Benjamin Paulson, and the conclusion of the investigation was that no abuse of [the child] by Benjamin Paulson was evidenced.
Barnhart asserts the conclusions of the Bureau of Criminal Investigation were never introduced into evidence and, therefore, this finding is not supported by evidence and is clearly erroneous. The guardian ad litem's report was introduced into evidence, and within that report the guardian ad litem states:
The law enforcement and social services investigations of [the child's] statements reveal no substantial evidence to support any abuse of or danger to [the child] by his father.
While the Bureau of Criminal Investigation's report and conclusions apparently were not introduced into evidence, this statement by the guardian in her report provides a basis upon which the trial court could find that the criminal investigation resulted in no finding that abuse had been committed upon the child by the father. We conclude, therefore, the court's finding is not clearly erroneous.
[¶ 10] The trial court also made the following specific finding:
Further allegations of sexual abuse were analyzed by Alonna K. Norberg, M.D., of the MeritCare Coordinated Treatment Center in Fargo, North Dakota, and she did not conclude that the child had been a victim of sexual assault.
Barnhart asserts the parties stipulated to a resolution in the juvenile court case, and consequently the evaluation of Norberg was never introduced into evidence in that case or this one. She asserts the trial court's finding, therefore, is not supported by the evidence.
[¶ 11] Relevant to this issue, Paulson testified:
While Norberg's name was not specifically mentioned in this line of testimony, Paulson made reference to her as "a very specialized professional" in Fargo and testified "there was nothing" from the result of her examination to conclude he had sexually abused the child. This...
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