Selzler v. Selzler

• Decision Date: 20 July 2001
• Docket Number: No. 20000247.,20000247.
• Citation: 2001 ND 138,631 N.W.2d 564
• Parties: Shari SELZLER, Plaintiff and Appellant, v. Terry SELZLER, Defendant and Appellee.
• Court: North Dakota Supreme Court

631 N.W.2d 564

2001 ND 138

Shari SELZLER, Plaintiff and Appellant, v. Terry SELZLER, Defendant and Appellee.

No. 20000247.

Supreme Court of North Dakota.

July 20, 2001.

Lynn M. Boughey, Boughey Law Firm, Minot, for plaintiff and appellant.

Michael S. McIntee, McIntee Law Firm, Towner, for defendant and appellee.

NEUMANN, Justice.

[¶ 1] Shari Selzler appealed from an amended divorce judgment changing physical custody of the parties' ten-year-old daughter to Terry Selzler. We conclude the trial court did not err in changing custody, and we affirm.

I

[¶ 2] The Selzlers were married in 1985. When they divorced in January 1996, the decree granted Shari sole legal and physical custody of a thirteen-year-old who was Shari's natural and Terry's adoptive daughter. The parties were granted joint legal custody of their natural daughter, a six-year-old, and Shari was granted care, custody and control of that child. Terry was granted reasonable and liberal visitation rights with the younger daughter.

[¶ 3] Terry was employed as a farm laborer and Shari was employed as a social worker for Pierce County, at one time as a child abuse and neglect investigator. The latter years of the marriage were marred by problems. In December 1994, a juvenile court referee found the older daughter to be a deprived child based upon the referee's finding that Terry had sexually abused her on four occasions. The referee recommended the older daughter's care, custody and control be placed with Pierce County Social Services for one year. Criminal charges based on the older daughter's allegations of sexual abuse were not pursued against Terry.

[¶ 4] After the divorce, Shari experienced disciplinary problems with the older daughter. The older daughter quit school before completing high school. She twice received treatment for chemical abuse when she was fifteen and seventeen years old, and had been arrested for driving without a license. Police were called to Shari's residence on numerous occasions on account of late night parties, dogs barking, and a registered sex offender, who was Shari's friend, being in the home with the young girls. In June 1999, an abuse and neglect report was filed against Shari and a petition for deprivation was proposed, but not filed. Instead, Shari was given an option to be supervised by a social worker from McHenry County Social Services. Shari entered into a contractual agreement requiring her to undergo therapy services, to allow no contact between the children and the registered sex offender, to allow only her children and herself to reside in the home, and to participate in future parent aid services if needed.

[¶ 5] In May 1999, Terry brought a motion to change custody of the younger daughter from Shari to himself. The trial court, after consulting counsel for the parties, appointed Sharon Hauschulz as the custody investigator. Hauschulz recommended custody of the younger daughter be changed from Shari to Terry. After three days of testimony, the trial court found a significant change of circumstances had occurred and granted the motion. Shari appealed.

II

[¶ 6] Shari argues the trial court erred in accepting the custody investigator's report because the record does not show whether the investigator met the preferred qualifications imposed by N.D.R.Ct. 8.6.

[¶ 7] When Hauschulz was proposed to serve as the custody investigator in this case, Shari's trial counsel did not object.¹ During the pretrial, trial and post-trial proceedings, Shari's counsel also raised no objection about Hauschulz's qualifications. We do not consider questions that were not presented to the trial court and are raised for the first time on appeal. Overboe v. Farm Credit Serv., 2001 ND 58, ¶ 11, 623 N.W.2d 372. Because Shari's counsel did not raise this issue before the trial court, the issue is not reviewable on appeal. Id.

III

[¶ 8] Shari argues the trial court erred in allowing the custody investigator to be excused from the court proceedings, rather than requiring her to be present throughout the three days of hearings. After the custody investigator testified during the first day of hearings, the trial court allowed her to leave the court proceedings for medical reasons. The trial court provided that the investigator could review, if requested by a party, tapes or transcripts of the hearings held outside of her presence, and further provided that she could be recalled as a witness, if requested by a party. Shari did not request the investigator to review the tapes or transcripts, or recall her as a witness.

[¶ 9] Rule 8.6(c), N.D.R.Ct., provides "[a] custody investigator shall attend all court proceedings and shall testify when requested." We reject Terry's contention that, although the custody investigator must attend court proceedings, the investigator need not remain present throughout the entire court proceedings. The obvious purpose of this requirement is to have the investigator hear the testimony of other witnesses and be prepared to testify whether the investigator's opinion has been changed by any additional testimony. However, we decline to adopt Shari's view that the failure to have the custody investigator present throughout the entire proceedings always constitutes reversible error.

[¶ 10] A trial court has great latitude and discretion in conducting a trial and, absent an abuse of discretion, its decision on matters relating to the conduct of a trial will not be set aside on appeal. See Schaefer v. Souris River Telecomm. Coop., 2000 ND 187, ¶ 13, 618 N.W.2d 175

; State v. Boehler, 542 N.W.2d 745, 747 (N.D. 1996); Great Plains Supply Co. v. Erickson, 398 N.W.2d 732, 734 (N.D.1986). Likewise, a trial court has broad discretion in its control of the presentation of evidence. See Mayo v. Mayo, 2000 ND 204, ¶ 39, 619 N.W.2d 631; N.D.R.Ev. 611. Although the trial court has broad discretion over the presentation of evidence and the conduct of trial, it must exercise this discretion in a manner that best comports with substantial justice. See Slaubaugh v. Slaubaugh, 466 N.W.2d 573, 580 (N.D. 1991). Moreover, we do not construe rules of court to produce absurd or ludicrous results, Disciplinary Bd. of Supreme Court v. O'Neil, 326 N.W.2d 879, 882 (N.D. 1982), but we construe them, like statutes, in a practical manner. See Huber v. Oliver County, 1999 ND 220, ¶ 16, 602 N.W.2d 710.

[¶ 11] Because unforeseen circumstances may make it impossible for a custody investigator to be present throughout the entire proceedings, we construe N.D.R.Ct. 8.6(c) to allow the court, for good cause, to excuse a custody investigator from attending the entire proceedings, but only if the court makes reasonable accommodations to preserve the parties' right to examine the investigator in light of all of the testimony given. See generally Quarne v. Quarne, 1999 ND 188, ¶ 6, 601 N.W.2d 256

. Here, the custody investigator's medical problems constituted good cause to deviate from the procedural requirements. The trial court made reasonable accommodations by providing the investigator could review tapes or transcripts of the hearing, if requested by a party to do so, and by providing the investigator could be recalled as a witness, if requested by a party. The custody investigator was not requested to review tapes or transcripts of the hearing and was not recalled by the parties to testify. Consequently, Shari has shown no prejudice resulted from the accommodations made by the trial court. See Graber v. Engstrom, 384 N.W.2d 307, 311 (N.D. 1986).

[¶ 12] We conclude the trial court did not abuse its discretion in allowing the custody investigator to be excused from the proceedings after testifying.

IV

[¶ 13] Shari argues the trial court erred in relying on hearsay information relating to sexual abuse risk factors contained in the custody investigator's testimony and in rejecting contrary evidence supplied by a social worker with a master's degree in clinical social work.

[¶ 14] The custody investigator testified she was told by three unnamed professionals that, although there are no guarantees, there is less chance that the biological parent of a child will sexually abuse the child than the chance that a nonbiological parent will sexually abuse the child. The social worker testified she was unaware of any research to support that opinion.

[¶ 15] Shari's trial counsel did not make a hearsay objection to the custody investigator's comments, which were given in response to a question by Shari's trial counsel during cross-examination. Moreover, the credibility of witnesses, including expert witnesses, and the weight to be given their testimony are questions of fact subject to the clearly erroneous standard of review under N.D.R.Civ.P. 52(a). Mayo, 2000 ND 204, ¶ 24, 619 N.W.2d 631. In this case, the social worker who testified was not formally qualified as an expert witness by the trial court, and was Shari's case manager from McHenry County Social Services. The trial court was not required to accept the testimony of Shari's fellow social worker who was working with and assisting Shari. Shari has failed to establish that the trial court's acceptance of the custody investigator's testimony over the social worker's testimony is clearly erroneous.

V

[¶ 16] Shari argues the trial court erred in its handling of the prior juvenile court finding that Terry had sexually abused his older, adopted daughter. In November 1994, a juvenile court referee found by clear and convincing evidence that Terry had abused the older daughter in the family home by sexually touching her on four separate occasions in 1992. Shari argues these findings of sexual abuse should create a presumption against Terry having custody of the younger daughter under N.D.C.C. § 14-09-06.2(1)(j).

[¶ 17] There is a rebuttable presumption against awarding custody to a parent who has perpetrated domestic violence. Cox v. Cox, 2000 ND 144, ¶ 17, 613 N.W.2d 516. Under N.D.C.C. §...