Wigginton v. Wigginton, 20040153

• Citation: 692 NW 2d 108,2005 ND 31
• Decision Date: 16 February 2005
• Docket Number: No. 20040153,20040153
• Parties: Sandra Wigginton, Plaintiff and Appellee v. Joel Wigginton, Defendant and Appellant.
• Court: United States State Supreme Court of North Dakota

2005 ND 31

692 NW 2d 108

Sandra Wigginton, Plaintiff and Appellee v. Joel Wigginton, Defendant and Appellant.

No. 20040153

Supreme Court of North Dakota.

Filed February 16, 2005

Kevin J. Chapman (argued), Chapman Law Office, Townsite Bldg., 2nd Fl., 417 1st Ave. E., P.O. Box 1920, Williston, ND 58802-1920, for plaintiff and appellee.

Tom P. Slorby (argued) and Eric P. Baumann (on brief), Slorby Law Office, 600 22nd Ave. NW, P.O. Box 3118, Minot, ND 58702-3118, for defendant and appellant.

Opinion of the Court by Kapsner, Justice.

KAPSNER, Justice.

[¶1] Joel Wigginton appeals an amended judgment granting Sandra Wigginton custody of their two children and granting him visitation at her discretion, ordering him to pay child support effective June 1, 2001, and allowing Sandra Wigginton to claim both children as dependents on her income tax returns. We affirm the award of custody, visitation and tax dependency and reverse the effective date of the child support obligation.

I.

[¶2] Joel Wigginton and Sandra Wigginton divorced in 1999 after 10 years of marriage. They have two minor children. He farms near Ambrose and plans to begin custom combining and doing contract concrete work for additional income. She owns Divide County Abstract in Crosby.

[¶3] The original divorce decree granted joint custody and liberal visitation to both parties. Sandra Wigginton had the children April through September subject to liberal and reasonable visitation by Joel Wigginton, and he had the children October through March subject to liberal and reasonable visitation by her. No set amount of child support was ordered; instead, the parties were ordered to share all expenses equally. Sandra Wigginton was to maintain health insurance for the children, and Joel Wigginton was to reimburse her one-half the cost. Each party was allowed to claim one of the children as a dependent for income tax purposes.

[¶4] This arrangement worked well until spring 2001, when Joel Wigginton was charged with possession of methamphetamine and paraphernalia with intent to deliver. These charges were dismissed on a search warrant issue, but Joel Wigginton acknowledged a dependency problem and voluntarily checked himself into a rehabilitation facility. He claims to have been drug-free since, although he failed a urine analysis at the close of trial.

[¶5] Sandra Wigginton filed a motion to modify judgment on May 21, 2001. An ex parte order was issued that same day granting her "sole, primary care, custody and control of the minor children of the parties, subject to supervised visitation rights of [Joel Wigginton]. . ." The order was to remain in effect until a hearing could be held, and it did not mention child support. The children have lived with Sandra Wigginton full-time since, and Joel Wigginton continued to reimburse her for one-half of the children's expenses. He testified he was billed for and paid approximately $300 monthly from May 2001 through September 2003 for expenses. Sandra Wigginton acknowledged receipt of these payments.

[¶6] A hearing was held on Sandra Wigginton's motion on February 19, 2004. At the hearing she testified that Joel Wigginton was often late for visitation and saw the children less frequently after May 2001. She said he seldom attended their sporting events and other school activities. Joel Wigginton said he would like to see his children more, but his farm is 11 miles from her home and he never has the kids long enough to justify the drive. He also testified that he works a lot and is very busy between farming and working on his house. Both parties agree Sandra Wigginton has never denied Joel Wigginton visitation when he has requested it.

[¶7] The district judge issued a first amended judgment on April 15, 2004. The judgment granted Sandra Wigginton "primary care, custody and control . . . subject to reasonable visitations [by Joel Wigginton] . . . to be conducted at the sole discretion of [Sandra Wigginton]." The judgment granted her discretion to require him to submit to drug testing, have certain persons present during visitation, and forbid certain persons from being present during visitation. The judgment further ordered Joel Wigginton to pay child support of $252 per month effective June 1, 2001. Sandra Wigginton was allowed to claim both children as dependents starting with her 2004 income tax return. Joel Wigginton appealed.

II.

[¶8] A trial court's decision on visitation is a finding of fact reviewed under the clearly erroneous standard of review. Berg v. Berg, 2002 ND 69, ¶ 4, 642 N.W.2d 899. A finding of fact is clearly erroneous if it is induced by an erroneous view of the law, if no evidence exists to support it, or if, upon review of the entire record, this Court believes a mistake has been made. Id.

[¶9] The decision to award visitation to a noncustodial parent is based on the best interests of the child and not the wishes or desires of the parents. K.L.G. v. S.L.N., 2001 ND 33, ¶ 11, 622 N.W.2d 232; Moilan v. Moilan, 1999 ND 103, ¶ 29, 598 N.W.2d 81.

After making an award of custody, the court shall, upon request of the noncustodial parent, grant such rights of visitation as will enable the child and the noncustodial parent to maintain a parent-child relationship that will be beneficial to the child, unless the court finds, after a hearing, that visitation is likely to endanger the child's physical or emotional health.

N.D.C.C. § 14-05-22(2). A restriction on visitation must be based on a preponderance of the evidence and accompanied by a detailed demonstration of the physical or emotional harm likely to result from visitation. Johnson v. Schlotman, 502 N.W.2d 831, 835 (N.D. 1983).

[¶10] Joel Wigginton argues he has been denied visitation with his children. The amended judgment actually states, ". . . subject to reasonable visitations being awarded to [Joel Wigginton], but to be conducted at the sole discretion of [Sandra Wigginton]." The judge's order explains the basis for his decision:

After the testimony and after oral arguments of counsel, . . . Joel Wigginton, was ordered to submit a urine sample for the purpose of testing for the use of marijuana and/or methamphetamine. At the close of the hearing, [Joel Wigginton] was to go to the Williams County Jail to give the urine sample. . . [Joel Wigginton] tested negative for marijuana but positive for methamphetamine use.

This motion was originally filed by [Sandra Wigginton] when [Joel Wigginton] was arrested for having a methamphetamine lab at his farm. [Joel Wigginton] was charged, but he never went to trial. . . While spared the possibility of jail, [Joel Wigginton] was nevertheless using methamphetamine and apparently took his arrest as a wake-up call. He entered and completed a treatment program and went through aftercare as well.

[Joel Wigginton] testified on the stand that his use of methamphetamine harmed his relationship with his children and did place his children in danger. [Sandra Wigginton] had requested that testing be a part of any visitation order, as she was concerned that [Joel Wigginton] had not stopped the use of methamphetamine. It appears [Sandra Wigginton's] fears were warranted. [Joel Wigginton] continues to use methamphetamine and had done so within a few days of trial. [Joel Wigginton] does not appear to have a handle on his drug use, and this drug use places his children in danger.

. . . Giving a party such control over visitation is an unusual ruling and is not done lightly. [Sandra Wigginton] has shown that she will not play the games sometimes seen in these situations. [Sandra Wigginton] has not denied [Joel Wigginton] visitations when the request was reasonable. [Sandra Wigginton] is deeply concerned that the children, for the children's benefit, maintain a relationship with their father. [Sandra Wigginton] is simply concerned for the children's safety. I have the utmost faith in [Sandra Wigginton], that she will allow [Joel Wigginton] to see the children as much as is possible and safe. If [Sandra Wigginton] requires drug testing, so be it. If she requires third parties to be present, or specific people to not be present, so be it. The bottom line is [Joel Wigginton] will need to re-earn the trust that he has lost, the trust of his children as well as their mother.

If [Joel Wigginton] ever feels in the future that [Sandra Wigginton] is wrongfully restricting his visitation, he will be allowed to file a motion, and the Court will revisit this issue. But for now, [Sandra Wigginton] is 100% in charge, and what she says goes.

[¶11] Sandra Wigginton correctly argues that Joel Wigginton has not technically been denied visitation with his children, but there is no doubt his visitation has been restricted. This Court has held visitation should be restricted only upon a showing by the preponderance of the evidence that visitation "is likely to endanger the child's physical or emotional health." Healy v. Healy, 397 N.W.2d 71, 73 (N.D. 1986); N.D.C.C. § 14-05-22(2). Joel Wigginton testified his methamphetamine use places his children in danger and harms his relationship with them. The trial court considered this testimony along with the fact Joel Wigginton tested positive for methamphetamine use at the close of trial. While the record contains no evidence of actual physical or emotional harm to the children, both parties acknowledge there is a potential for such damage.

[¶12] The record contains sufficient evidence for the trial court to restrict Joel Wigginton's visitation, including his history and the results of the urine analysis. The provisions the trial court used to restrict that visitation are highly unusual and, as the trial court said, should not be "done lightly." This Court has said visitation is "a right of the child which is not to be subverted by the custodian." Gardebring v. Rizzo, 269 N.W.2d 104, 110 (N.D. 1978). Giving the custodial parent such complete discretionary authority over the manner and...