Siewert v. Siewert
| Decision Date | 16 December 2008 |
| Docket Number | No. 20080095.,No. 20080065.,20080065.,20080095. |
| Parties | Dawn Michelle SIEWERT, Plaintiff and Appellee v. Alan Dean SIEWERT, Defendant and Appellant Dawn Michelle Siewert, Plaintiff and Appellant v. Alan Dean Siewert, Defendant and Appellee. |
| Court | North Dakota Supreme Court |
Susan L. Ellison, Ohnstad Twichell, West Fargo, N.D., for Alan Dean Siewert.
[¶ 1] Alan Siewert appeals from an amended judgment modifying custody and visitation. Dawn Siewert appeals from a separate order dismissing her motion to modify Alan Siewert's child support obligation. We conclude the district court's findings about modifying custody and visitation are not clearly erroneous, and we affirm the amended judgment. We also conclude the district court erred in dismissing Dawn Siewert's motion to modify child support, and we reverse and remand for further proceedings.
[¶ 2] Dawn and Alan Siewert were married and have two children together. In 2004, Dawn and Alan Siewert divorced and a judgment was entered based upon the parties' stipulation. The parties agreed to share joint legal custody of the children, to grant Dawn Siewert sole physical custody of the children, and to allow Alan Siewert visitation with the children approximately fifty percent of the time. Alan Siewert was ordered to pay child support of $1,259 per month for the two children.
[¶ 3] In May 2005, Alan Siewert married Kathleen Siewert. In March 2007, Dawn Siewert moved to amend the judgment requesting sole legal custody of the children and seeking to require that Alan Siewert's visitation be supervised. Dawn Siewert claimed Kathleen Siewert had attempted to alienate the children from her, Alan Siewert had not acknowledged or attempted to stop Kathleen Siewert's behavior, and the children were being harmed as a result. Alan Siewert responded with a motion for sole physical custody of the children, and asked the court to appoint a guardian ad litem and a custody investigator and to order a parental capacity evaluation.
[¶ 4] After a hearing, the district court granted Alan Siewert's motion to appoint a custody investigator, but denied his request for a guardian ad litem and a parental capacity evaluation.
[¶ 5] A November 2007 hearing was held on the parties' motions. During the hearing, Dawn Siewert, Alan Siewert, and Kathleen Siewert testified. Laurie Christianson, the custody investigator, also testified and submitted her report recommending the parents continue to have joint legal custody and Dawn Siewert continue to have sole physical custody, but that Alan Siewert's visitation be slightly reduced. As part of the custody investigation, Christianson arranged for the children to be seen by Peter Moynihan and Carolyn Meske, counselors at Solutions Behavioral Healthcare Professionals, and their reports were also included in the evidence presented to the court. Moynihan and Meske found the children were being affected by the conflict between Dawn and Kathleen Siewert, and reported that one of the children indicated the conflict was primarily instigated by Kathleen Siewert. There was also evidence from a deposition of Dr. Carita Shawchuck, a psychologist who had occasionally met with the children over the past couple of years, and a copy of her notes from sessions with the children. Dr. Shawchuck's notes indicated the children had anxiety over their parents' relationship, the children reported Kathleen Siewert was hostile toward their mother, and their father did not believe them when they tried to tell him about Kathleen Siewert's behavior. The court also considered an affidavit and testimony from Dr. Stephen Timm, a psychologist Alan Siewert hired, who interviewed Alan and Kathleen Siewert and reviewed other evidence including Dr. Shawchuck's notes. Dr. Timm testified he believed Dawn Siewert instigated the conflict with Kathleen Siewert and the children were influenced by their mother's perception of the situation.
[¶ 6] In a January 2008 order, the district court found Dawn and Alan Siewert have a dysfunctional relationship and are unable to communicate or cooperate with each other, the children have suffered from emotional distress because of their parents' relationship, Kathleen Siewert's conduct toward Dawn Siewert has caused the children emotional distress, and Alan Siewert does not believe Kathleen Siewert has done or said anything to alienate the children's love and affection for their mother. The court ultimately found Alan Siewert's marriage to Kathleen Siewert, the increased level of acrimony between the adults, and the impact on the children were material changes in circumstances. The court decided it was in the children's best interest that Dawn Siewert continue to have sole physical custody of the children, that she have sole legal custody of the children, and that visitation be modified. The court denied Dawn Siewert's request for supervised visitation, but reduced Alan Siewert's visitation to every other weekend, one night a week, alternate holidays, and every other week during the summer. The court also ordered the parents to participate in co-parenting therapy. An amended judgment was subsequently entered.
[¶ 7] In February 2008, Dawn Siewert moved to amend the judgment, requesting the court modify Alan Siewert's child support obligation to conform to the amount of support required under the child support guidelines. She later requested his child support obligation be modified to $2,246 for two children. Alan Siewert responded to the motion on March 7, 2008, and requested his child support obligation be modified to $2,133 for two children.
[¶ 8] On March 6, 2008, Alan Siewert appealed from the amended judgment giving Dawn Siewert sole legal and physical custody of the children and modifying his visitation.
[¶ 9] At a March 17, 2008, hearing before a judicial referee, Dawn Siewert's attorney questioned whether the court had jurisdiction to modify child support while the appeal from the amended judgment was pending, and both parties filed briefs on the issue. The judicial referee entered an order ruling the court did not have jurisdiction to consider the merits of Dawn Siewert's motion. The referee declined to take further action on the matter and refused to dismiss the motion, finding dismissal was not appropriate because the jurisdictional defect would be remedied upon conclusion of the appeal and dismissal of the motion would cause irreparable harm.
[¶ 10] Alan Siewert requested district court review of the referee's decision, arguing the referee erred in denying his motion to dismiss. Upon review, the district court dismissed Dawn Siewert's motion to modify child support, concluding the court lacked jurisdiction to hear the motion.
[¶ 11] Alan Siewert argues the district court abused its discretion in denying his request to appoint a guardian ad litem. He claims Dawn Siewert placed the children in the middle of the conflict, and a guardian ad litem could have provided the court with significant information.
[¶ 12] A court may appoint a guardian ad litem in child custody cases under N.D.C.C. § 14-09-06.4, which provides:
[I]n any action when the custody or visitation of children is contested, either party to the action may petition the court for the appointment of a guardian ad litem to represent the children concerning custody, support, and visitation. The court, in its discretion, may appoint a guardian ad litem or child custody investigator on its own motion. If appointed, a guardian ad litem shall serve as an advocate of the children's best interests. If appointed, the child custody investigator shall provide those services as prescribed by the supreme court. The court may direct either or both parties to pay the guardian ad litem or child custody investigator fee established by the court.
[¶ 13] A district court has discretion to appoint a guardian ad litem in a custody modification case, however, the court is not required to appoint a guardian ad litem upon a party's motion, and the court's decision will not be reversed on appeal absent an abuse of discretion. Hilgers v. Hilgers, 2002 ND 173, ¶ 7, 653 N.W.2d 79. A court abuses its discretion when it acts in an arbitrary, unreasonable, or unconscionable manner. Id.
[¶ 14] In the proceeding before the district court, Alan Siewert argued a guardian ad litem was necessary because of the alienation allegations. Dawn Siewert opposed the motion, arguing the court did not need a guardian ad litem to resolve the case and expressing concern about the cost of a guardian. The court denied Alan Siewert's request for a guardian ad litem, and appointed a custody investigator, explaining the investigator could provide the court with additional background information. The parties have cited no evidence to suggest a guardian ad litem was also necessary. Alan Siewert's main concern was that a guardian ad litem could provide the court with additional information the parties could not present; however, the court appointed a custody investigator for that purpose. The parties and custody investigator presented sufficient evidence for the court to resolve the issues, and Alan Siewert does not claim there was any specific information excluded because of the court's decision. There was no indication the children needed a guardian. Under these circumstances we conclude the district court did not act arbitrarily, unreasonably, or unconscionably in denying the request for a guardian ad litem, and we affirm the court's decision.
[¶ 15] Alan Siewert argues the district court erred in finding it was in the children's best interests to remain in Dawn Siewert's custody and to reduce his visitation. He contends there has been a material change in circumstances, including that Dawn Siewert caused the conflict with Kathleen Siewert, Dawn Siewert influenced...
To continue reading
Request your trial
-
Dunn v. Dunn
...there has been a material change in circumstances and a modification is necessary to serve the best interests of the child." Siewert v. Siewert, 2008 ND 221, ¶ 16, 758 N.W.2d 691; Kelly v. Kelly, 2002 ND 37, ¶ 17, 640 N.W.2d [¶ 9] This Court construed "material" in N.D.C.C. § 14-09-06.6(6)(......
-
Kartes v. Kartes
...the court must consider the factors set out in N.D.C.C. § 14–09–06.2(1). E.g., Vining v. Renton, 2012 ND 86, ¶ 17, 816 N.W.2d 63;Siewert v. Siewert, 2008 ND 221, ¶ 19, 758 N.W.2d 691. [¶ 35] The district court made extensive and detailed findings of fact on each of the best interest factors......
-
Rath v. Rath
...The court’s decision whether to modify custody is a finding of fact that will only be reversed on appeal if clearly erroneous. Siewert v. Siewert , 2008 ND 221, ¶ 16, 758 N.W.2d 691. [¶ 7] In deciding parenting time, we have explained that "the best interests of the child, rather than the w......
-
Citizens State Bank-Midwest v. Symington
...State Bank v. Woell, 357 N.W.2d 234, 236-39 (N.D.1984); Choice Fin. Group v. Schellpfeffer, 2005 ND 90, ¶¶ 6-9, 696 N.W.2d 504; Siewert v. Siewert, 2008 ND 221, ¶ 33, 758 N.W.2d ¶ 27 Rule 18(b), N.D.R.Civ.P., permits joinder of remedies and specifically permits "a claim for money and a clai......