Peters-Riemers v. Riemers, 20010135.

• Decision Date: 14 May 2002
• Docket Number: No. 20010135.,20010135.
• Citation: 644 N.W.2d 197,2002 ND 72
• Parties: Jenese A. PETERS-RIEMERS, Plaintiff and Appellee, v. Roland C. RIEMERS, Defendant and Appellant.
• Court: North Dakota Supreme Court

644 N.W.2d 197

2002 ND 72

Jenese A. PETERS-RIEMERS, Plaintiff and Appellee, v. Roland C. RIEMERS, Defendant and Appellant.

No. 20010135.

Supreme Court of North Dakota.

May 14, 2002.

Petition for Rehearing filed June 4, 2002.

Michael L. Gjesdahl, Gjesdahl & Associates, Fargo, ND, for plaintiff and appellee.

Roland C. Riemers, pro se, Grand Forks, ND, for defendant and appellant.

Reid Alan Brady, Assistant Attorney General, Attorney General's Office, Bismarck, ND, for amicus curiae State of North Dakota.

NEUMANN, Justice.

[¶ 1] Roland C. Riemers appealed from a district court judgment dissolving Riemers' marriage to Jenese A. Peters-Riemers, awarding custody of the parties' son, Johnathan, to Jenese with supervised visitation for Roland, awarding child support and spousal support to Jenese, and dividing the marital property. We hold the trial court did not commit reversible error in these proceedings, and we affirm the judgment.

[¶ 2] The following facts, as found by the trial court, are supported by the record. Roland met Jenese, a non-U.S. citizen, in Belize in 1995 while vacationing there. Roland was at that time married to another woman, and he falsely informed Jenese that he was in the process of divorcing his wife. In early 1996, at Roland's invitation, Jenese left Belize and moved to North Dakota. Roland provided her an apartment in Grand Forks and lived with her there. However, Roland also frequently returned to Beulah where he would reside with his wife and their five children. Roland had other extramarital affairs while residing with Jenese which, when she discovered them, created a constant source of distress and conflict within their relationship.

[¶ 3] Jenese became pregnant by Roland, and on June 24, 1997 their son, Johnathan, was born. Roland divorced his wife in 1998, and on March 6, 1999 Roland and Jenese were married. In April 1999, Roland sponsored Jenese's application for permanent residency in the United States. After incurring several instances of physical abuse by Roland, Jenese filed a complaint on March 7, 2000 seeking dissolution of the marriage. After a bench trial, the court granted Jenese a decree of divorce from Roland on the grounds of adultery, extreme cruelty, and irreconcilable differences. Upon finding Roland had committed domestic violence, the court awarded physical custody of Johnathan to Jenese and provided Roland "closely supervised" visitation with Johnathan. The court awarded child support to Jenese of $1,150 per month and awarded her spousal support of $500 per month for five years. The court also divided the parties' marital property and debt.

[¶ 4] Roland, acting pro se, has appealed and has raised numerous issues on appeal.

I. Jury Trial

[¶ 5] Roland requested a jury trial, but was given a bench trial. He asserts his state constitutional right to a jury trial was violated by the court. More specifically, Roland asserts the right to a jury trial in a divorce action existed at the time our state constitution was adopted and that right was preserved by the constitution, which provides that "[t]he right of trial by jury shall be secured to all, and remain inviolate." N.D. Const. art. I, § 13.¹ This provision of our constitution that right of trial by jury shall remain inviolate neither enlarges nor restricts that right but merely preserves it as it existed at the time of the adoption of our constitution. In re R.Y., 189 N.W.2d 644, 651 (N.D.1971). It preserves the right of trial by jury for all cases in which it could have been demanded as a matter of right at common law. Id.

[¶ 6] In support of his claim for a jury trial Roland cites to 1883 Revised Codes of Dakota Territory, Civil Procedure § 236 which provides:

An issue of law must be tried by the court, unless it be referred as provided in sections 271 and 272. An issue of fact in an action for the recovery of money only, or of specific, real, or personal property, of for a divorce from the marriage contract, must be tried by a jury, unless a jury trial be waived, as provided in section 265, or a reference be ordered, as provided in section 272. Every other issue is triable by the court, which, however, may order the whole issue, or any specific question of fact involved therein, to be tried by a jury, or may refer it, as provided in section 272.

(Emphasis added.) Roland is remiss in not following the subsequent history of this territorial act. On March 12, 1885, the legislative assembly of the Territory of Dakota amended the act by deleting actions "for a divorce from the marriage contract" from those specified actions which must be tried by a jury. By this amendment, divorce actions became triable by the court, and by territorial enactment continued to be tried by the courts when the state constitution was adopted in 1889. See 1887 Compiled Laws Territory of Dakota, Civil Procedure § 5032.² Consequently, it is well settled that there is no right to a jury trial in divorce proceedings. Selland v. Selland, 519 N.W.2d 21, 22 (N.D.1994); see also Martian v. Martian, 328 N.W.2d 844, 845-46 (N.D.1983). We conclude, therefore, Roland's rights were not violated by the trial court's refusal to grant his request for a jury trial in this case.

II. Visitation Statutes

[¶ 7] Under N.D.C.C. § 14-05-22(3), if the court finds that a parent has perpetrated domestic violence and there exists one instance 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 in a reasonable time proximate to the proceeding, the court shall only allow supervised child visitation with that parent unless there is a showing by clear and convincing evidence that unsupervised visitation would not endanger the child's physical or emotional health. Under N.D.C.C. § 14-09-06.2(1)(j), if the court makes a similar finding of domestic violence, a rebuttable presumption is created that the parent who has perpetrated domestic violence may not be awarded custody of the child. The presumption may be overcome only by clear and convincing evidence that the best interests of the child require that parent's participation as a custodial parent. Roland asserts these statutory provisions unconstitutionally shift the burden of proof onto the parent to prove "he deserves his basic constitutional rights" of custody and visitation with his child.

[¶ 8] Roland did not raise this issue before the trial court. It is well settled that an issue not presented to the trial court will not be considered for the first time on appeal. Allied v. Dir. of N.D. Dep't of Transp., 1999 ND 2, ¶ 6, 589 N.W.2d 201. This constraint applies with particular force to a constitutional issue. Id. We, therefore, conclude Roland has failed to preserve this constitutional argument, and we decline to address it.

III. Location of Trial Proceedings

[¶ 9] Roland asserts he was denied his due process rights, because the lower court tried this case in Cass County rather than in Traill County, where Roland resides. Generally, an action must be tried in the county in which the defendant resides at the time of the commencement of the action. N.D.C.C. § 28-04-05. However, in the absence of a timely objection, the trial court in a civil action may change the place of the trial from the location in which the matter was originally to be heard. N.D.C.C. § 28-04-10. Roland did not object to the trial being held in Cass County until more than several weeks after the trial had finished. We conclude Roland's objection was not timely and his claim of error is without merit. See Varriano v. Bang, 541 N.W.2d 707, 711 (N.D.1996).

IV. Testimony of Minor and Appointment of Guardian Ad Litem

[¶ 10] Roland asserts the due process rights of his son, Johnathan, were violated because the court did not appoint a guardian ad litem for Jonathan and because the court did not allow Johnathan to testify. At the time of trial, Johnathan was only three years old. Roland's argument this toddler should have been allowed to testify is without merit. See McDowell v. McDowell, 2001 ND 176,¶ 20, 635 N.W.2d 139.

[¶ 11] The trial court, in its discretion, may appoint on its own motion a guardian ad litem for a minor child when the court has reason for special concern as to the future welfare of the child. N.D.C.C. § 14-09-06.4; see also Healy v. Healy, 397 N.W.2d 71, 75 (N.D.1986). The trial court in this case appointed a guardian ad litem for Johnathan and ordered Roland to pay the retainer. When Roland refused to do so, the court's appointee refused to accept the appointment, and the court then found Roland in contempt for failing to pay the fee. The case proceeded without a guardian ad litem. The trial court's decision to proceed without a guardian ad litem will not be overturned unless the court has abused its discretion. Ludwig v. Burchill, 514 N.W.2d 674, 677-78 (N.D.1994). Roland has not provided persuasive argument that the trial court abused its discretion in proceeding without a guardian ad litem.

V. Trial Court Prejudice

[¶ 12] Roland asserts the trial court was biased against him and was incompetent. He claims the trial court demonstrated prejudice against him when he admonished Roland, who was about to put his daughter on the stand to testify about Roland's reputation, that Roland should "be careful of this one if I were you." Roland also claims the court showed prejudice in finding that Roland had committed a pattern of physical cruelty, extreme mental cruelty, and adultery toward his wife. Roland also claims the trial court's bias is demonstrated by the court's ruling limiting Roland to closely supervised visitation. He also claims the trial court "fired off minor questions and corrections to interrupt and completely frustrate" testimony Roland was trying to obtain from witnesses. Roland also asserts the trial judge demonstrated confusion when he was "not able to remember exhibit numbers, the case number he...