Articles Posted in North Dakota Supreme Court

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A.D., mother of P.T.D., C.R.D., P.A.D., P.P.D., and N.A.D., appealed a juvenile court order finding her five children were deprived under N.D.C.C. 27-20-02(8). These proceedings arose after the State alleged the children were subject to repeated exposure to domestic violence between A.D. and T.D.; A.D.'s methamphetamine and other substance abuse and the presence of controlled substances in the home; T.D.'s suicide attempts; and other mental health issues. After the deprivation hearing, the juvenile court found the children were deprived by clear and convincing evidence. The juvenile court ordered the children removed from the care, custody, and control of their parents on February 13, 2017. The North Dakota Supreme Court reversed and remanded, finding the juvenile court noted drug use, mental health issues, domestic violence, and other health issues in its order, but it failed to connect those facts to the children's deprivation. The Court remanded with instructions that the juvenile court make adequate findings of fact to determine whether P.T.D., C.R.D., P.A.D., P.P.D., and N.A.D. were deprived children based on the evidence presented at the initial deprivation hearing. View "Interest of P.T.D." on Justia Law

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Phyllis and Ronald Berry were divorced in a judgment entered on January 24, 2008. Following entry of the judgment, Phyllis Berry requested the district court reconsider its allocation of Ronald's military retirement benefits. The court entered an order denying her motion to reconsider on March 3, 2008. In 2014, both parties initiated post-judgment motions. Ronald sought modification of several provisions of the judgment including the allocation of his military retirement benefits. An Order for Amended Judgment and Judgment were entered on March 5, 2015, which included a denial of Ronald's request for modification of the allocation of his military retirement benefits and directing both parties to complete specific tasks. The district court denied Ronald's motion without prejudice, noted that he had failed to comply with the requirements of N.D.R.Civ.P. 60(b)(6). Because Ronald failed to file the additional materials, and after a show-cause hearing, the court eventually issued an order for a corrected amended judgment and entered a corrected amended judgment modifying the formula allocating Ronald's military retirement benefits. Phyllis appealed, arguing the district court erred in modifying the allocation of Ronald's military retirement benefits because he failed to satisfy the requirements under N.D.R.Civ.P. 60 for modification of the judgment. The North Dakota Supreme Court affirmed, finding the district court's findings of fact explained the modification corrected the formula to reflect what the court had originally intended. The original and amended judgments overstated Ronald's years of service (26 rather than 24) and the REDUX percentage (40 percent rather than 30 percent). Absent a correction, Phyllis would have received a share of Ronald's retirement benefits different than what the court had always intended. In light of the circumstances of this case, the Supreme Court concluded the district court's correction was not clearly erroneous. View "Berry v. Berry" on Justia Law

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Shawn Brew appealed a judgment granting him a divorce from Jennifer Brew, distributing their marital property, and ordering him to pay child support. Shawn argued the district court's property distribution was inequitable, the court improperly calculated his child support obligation, and the court erred in ordering him to pay attorney's fees. A district court is required to equitably distribute marital property in a divorce proceeding, and a property division does not need to be equal to be equitable. Under the child support guidelines, a district court averages a self-employed obligor's income over the most recent five years to determine income from self-employment. The district court has discretion to award attorney's fees when one party's actions have unreasonably increased the time spent on a case. Finding no clear error in the district court's judgment, the North Dakota Supreme Court affirmed the judgment. View "Brew v. Brew" on Justia Law

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K.S., the mother of three minor children, appealed the termination of her parental rights. A petition to terminate her rights was filed after one day in June 2017, law enforcement and ambulance service was called to her residence; police found K.S. unconscious on the bathroom floor with a needle in her arm. Her extremities were blue and she was gasping for breath. It was alleged she was experiencing a drug overdose. Ward County Social Services moved the juvenile court to reopen the termination of parental rights proceeding for an evidentiary hearing regarding the overdose. K.S. opposed the motion. The court granted the motion because it had not yet issued a final order and the facts of the underlying incident may have a direct bearing on the matter. After a supplemental evidentiary hearing, the court entered an order terminating the parental rights of the three children. K.S. argued the juvenile court abused its discretion in granting a motion to reopen the record. The North Dakota Supreme Court concluded the court did not abuse its discretion in reopening the record for a supplemental hearing and affirmed. View "Interest of F.S., M.S., Jr., and M.S." on Justia Law

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Tricia Taylor appeals from orders denying her motions to quash contempt and for immediate release from incarceration. The orders stemmed from custody disputes between Taylor, Aarin Nygaard and Terrance Stanley, the two fathers of her minor children. Nygaard and Stanley were eventually awarded primary residential responsibility for their respective children, and Taylor was granted supervised visitation. Taylor fled with both of the minor children to the Cheyenne River Indian Reservation in South Dakota, and Nygaard and Stanley have not had any contact with the children since. Taylor was found in contempt for violating multiple district court orders for refusing to return the minor children to their fathers. In addition, Taylor was arrested and pled guilty to class C felony parental kidnapping and was incarcerated in North Dakota. In 2015, the Cheyenne River Sioux Tribal Court entered a temporary order awarding custody of the children to Taylor's sister on the reservation. Shortly before Taylor was scheduled to be released on parole on the parental kidnapping conviction, the district court issued interlocutory orders in both custody cases finding her in contempt for refusing to return the children to their fathers and issued warrants for her arrest. Immediately upon her release from incarceration on the kidnapping conviction, Taylor was served with the arrest warrants and remained in custody for contempt. At a hearing on the interlocutory orders, Taylor argued she did not have the ability to return the minor children to their fathers. A judicial referee rejected the argument and found Taylor was "voluntarily electing to continue to withhold" the minor children from their fathers. Taylor requested the district court to review the referee's orders, and in April 2016 the court adopted and affirmed the referee's orders. Taylor did not appeal. Taylor has not returned the children to their fathers and remained incarcerated. Taylor moved to quash the contempt orders and for immediate release from imprisonment, claiming she had been incarcerated for contempt longer than the six months authorized under N.D.C.C. 27-10-01.4(1)(b). Nygaard and Stanley argued the orders were not appealable. The North Dakota Supreme Court reversed, finding the judicial referee's orders and the district court's orders on request for review did not contain an express finding that imprisonment for six months under N.D.C.C. 27-10-01.4(1)(b) would be ineffectual to terminate Taylor's continuing contempt. Without that finding, Taylor could not be imprisoned for more than six months under the court's most recent orders finding her in contempt. View "Nygaard v. Taylor" on Justia Law

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John Smart appealed an amended divorce judgment and from an order and judgment denying his motion for relief under N.D.R.Civ.P. 60. The North Dakota Supreme Court concluded the district court's equitable redistribution of the marital property was not clearly erroneous and that the court did not abuse its discretion in entering the amended judgment, denying Smart's subsequent post-judgment motions, and awarding attorney's fees. View "Lewis v. Smart" on Justia Law

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In a proceeding relating to the modification of grandparent visitation, the termination of a parent's rights is a material change in circumstances. Amanda Kulbacki appealed a district court order denying her motion to terminate Shawn Coulter's grandparent visitation with Kulbacki's minor child and amend the child's birth certificate. The North Dakota Supreme Court reversed, concluding as a matter of law, the termination of Nicholas Michael's parental rights was a material change in circumstances and Coulter (Michael's mother) was not able to establish a basis to have visitation under the facts of this case. The Court remanded for briefing on the district court's jurisdiction to order the department of vital statistics to amend the child's birth certificate upon termination of parental rights. View "Kulbacki v. Michael" on Justia Law

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A district court must analyze all four Stout-Hawkinson factors in determining whether a custodial parent may move out-of-state with a child. Cody Booen appealed a district court's order granting Jessica Appel's motion to relocate. Appel cross-appealed the orders granting her motion to relocate and to show cause finding her in contempt. Booen argued the district court erred by granting the motion to relocate because it did not properly analyze and weigh the Stout-Hawkinson factors. Appel argued the district court erred in establishing a parenting plan, by finding her in contempt and requiring her to pay half of Booen's attorney fees. Finding no abuse of the district court's discretion in either decision, the North Dakota Supreme Court affirmed the district court's orders. View "Booen v. Appel" on Justia Law

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An individual seeking to adopt a child must ordinarily obtain the written consent of the child's parents, though if written consent is not provided, it must be proven the parent either (1) for one year failed significantly without justifiable cause to communicate with the child or provide for the care and support of the child or (2) abandoned the child. A.F. appealed a district court order denying his petition to adopt J.L.F. The district court denied his petition after finding the child's biological father neither consented to the adoption nor abandoned his child. The North Dakota Supreme Court affirmed, concluding the district court's findings of fact were not clearly erroneous. View "Adoption of J.L.F." on Justia Law

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Paul Schaffner appealed a district court order denying his petition to modify his parenting time from supervised visitation to unsupervised. The district court denied his petition after finding Schaffner failed to show a material change in circumstances had occurred since the previous order establishing his parenting time. Finding no reversible error, the North Dakota Supreme Court affirmed. View "Schaffner v. Schaffner" on Justia Law