20090316
FILED IN THE OFFICE OF THE IN THE SUPREME COURT CLERK OF SUPREME COURT MARCH 8, 2010 STATE OF NORTH DAKOTA STATE OF NORTH DAKOTA
Maureen Ann Woodward, :
Plaintiff and Appellant :
-v- : Supreme Court No.20090316
George Woodward, : District Court Nos. 05-C-03471
Defendant and Appellee :
APPELLANT’S BRIEF
APPEAL OF THIRD AMENDED JUDGMENT CHANGING CUSTODY OF EB
DISTRICT COURT OF CASS COUNTY,
THE HONORABLE FRANK L. RACEK, PRESIDING.
William Steven Kirschner Attorney for Maureen Woodward Kirschner Law Office Suite 104, 1351 Page Drive Fargo, North Dakota 58103-3635 (701) 293-5297 ND Bar ID # 03713
TABLE OF CONTENTS
TABLE OF AUTHORITIES [p.3]
ISSUES PRESENTED [p.4]
STATEMENT OF THE CASE [1]
FACTS [17]
ARGUMENT
1 The District Court erred in failing to recuse itself from this case. [32]
2 The District Court’s decision to change the custody of E was clearly erroneous[84]
3 The District Court’s decision regarding visitation between EW and her mother and
siblings did not reflect consideration of the necessary factors [112]
CONCLUSION [115]
2
TABLE OF AUTHORITIES
North Dakota Cases
Dronen v. Dronen, 2009 ND 70, 764 N.W. 2d 675 [29]
Linrud v. Linrud, 552 N.W. 2d 342 (N.D. 1996) [75]
Sargent County Bank v. Wentworth, 500 N.W. 2d, 862, (N.D. 1993) [73]
Woodward v. Woodward, 2009 ND 214,776 N.W.2d 567 [4]
3
ISSUES PRESENTED
1. Whether the District Court committed reversible error when it refused to recuse itself in this
case?
2. Whether the District Court’s decision to change the custody of EW was supported by a
substantial change in circumstances and whether it was in the best interests of EW?
3. Whether the District Court’s decision regarding the new visitation between Maureen and
EW reflected consideration of the best interests of EW, and the connections between her
and her siblings and her mother?
4
STATEMENT OF THE CASE
[1] This is the appeal of the most recent Judgment entered in this case on August 25, 2009 after entry of the Court’s order on August 20, 2009 granting the Defendant’s Motion for Change of Custody. The motion was made on March 12, 2009. Subsequent to the Motion for Change of Custody, the Plaintiff moved to recuse the Court and the Court issued an Order on April 29,
2009 denying the Motion.
[2] A Hearing on part of the Defendant’s Motion, which asked for a Contempt citation against the Plaintiff for denying further visitation, was held on May 7, and May 21, 2009. On
June 3, 2009, the Court entered an Order modifying the previous visitation order with regard to
EW’s older sister RW. The Court modified the prior Order so that RW would not be forced against her will to visit with her father. On June 16, 2009, the Court entered an Order finding that the Defendant had made a prima facie showing regarding his motion to modify the custody of the minor children and scheduled an evidentiary hearing to begin July 23, 2009.
[3] An evidentiary hearing was held on July 23, 2009. Final arguments and briefs were submitted by the parties and the Court entered its Order on August 20, 2009 ordering the change of custody of EW from Maureen to George Woodward, and providing that Maureen would now enjoy the visitation which George had previously received. The Third Amended
Judgment was prepared by George’s attorney and Maureen appeals from that Judgment.
[4] This case is a continuation of the dispute which first arose in Woodward v. Woodward,
2009 ND 214, 776 N.W.2d 567, a consolidated appeal, which was decided by this Court on
December 18, 2009.
[5] In that case, this Court affirmed the previous orders of the District Court denying
Maureen’s motion to modify and limit George’s visitation and granted George compensatory
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visitation, and ordered Maureen to undergo a parental alienation and psychological evaluation.
The Order held Maureen in contempt for failing to comply with the visitation provisions of the
previous judgment. In this case, the District Court decided to change the custody of EW to her
father.
[6] The parties were divorced in May, 2006, after having separated approximately one year
before that. At the time of the divorce, the Court granted custody of the 3 children, who were then 16, 13, almost 6 to Maureen. George had alternating weekend visitation, as well as weekday, holiday and summer visitation with the children. GW, who is chronologically sixteen years of age, is autistic and functions at a much lower level than his siblings. Since before the divorce, and thereafter, the children have been home schooled by their mother. (Tr. V.1, pp. 9-11)
[7] George married Jennifer Halvorson in 2007. After the marriage the children began to have problems when visiting with their father. They requested that their mother help them to change their step-mother or protect them from her.
[8] Finally, in the summer of 2008, after failing to have any effect on George and Jennifer’s
conduct, Maureen relented and agreed to not force the girls to visit their father and stepmother
in Grand Forks. In August 2008, Maureen sought a Modification of the Visitation Provisions to
provide that the children not be forced to see George’s new wife, Jennifer, and that visitation
not be in her presence. George filed a cross motion for Contempt, and for modification of the
original judgment to provide for additional visitation. He also requested a “parental alienation
evaluation”, as well as a psychological evaluation, and an order for his attorney’s fees and costs
in bringing the motion.
[9] The hearing on these motions took place on September 19, October 6, and October 16,
2008. Thereafter the Referee issued her Findings and Order finding Maureen in Contempt, and
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ordering the resumption of visitation, as well as compensatory visitation with the children. The
Referee also ordered Maureen to undergo a parental alienation and psychological evaluation at
Solutions in Moorhead at her expense. This decision was affirmed by the District Court and
then this Court in December 2009.
[10] Prior to the District Court’s affirmation of the Referee’s Findings and Order, Maureen
sought a stay from the District Court based upon the opinion of a psychiatrist, Dr. Harjinder
Virdee, that the children’s visits with their step mother were doing them more harm than good,
and that such visits were likely to lead to further deterioration in their mental health. (Cross
Motion to Suspend Visitation, Docket No. 182), (Deposition testimony of Harjinder Virdee,
Docket No. 196).
[11] On February 2, 2009, Judge Racek heard this Motion and entered an Order finding
Maureen in Contempt again. He ordered counseling to begin with RW with Dr. Ambers, a
counselor selected by George in Grand Forks on February 6, 2009. This matter was appealed
and joined with the first appeal and affirmed as previously noted.
[12] Subsequent to the February 2nd hearing, EW and GW began visiting with their father on a regular basis. RW continued to refuse to visit her father in Grand Forks. On a subsequent motion for contempt filed by George, Judge Racek ordered RW to have counseling with her father with a counselor recommended by Dr. Kevin Schumacher. Based on Dr. Schumacher’s testimony, he ordered that RW not be forced to visit with her father against her will (Docket
No. 240).
[13] The counseling continued for several sessions, but stopped because George was unwilling to continue.
[14] The Court held hearing on George’s second Motion for Contempt on May 7, 2009 and
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May 21, 2009. A hearing on his motion for change of custody was held on July 23, 2009.
[15] At the beginning of the Change of Custody hearing, the parties stipulated that the Court
could take Judicial Notice of all the prior affidavits and testimony presented in this case. The
parties had deposed Dr. Laidlaw and his deposition was submitted subsequent to the hearing.
[16] At the hearing on July 23, 2010, the only witness to testify was George Woodward.
FACTS
[17] George and Maureen Woodward were married in Chicago, Illinois on December 14,
1986. George was a resident. and Maureen was a student. The Woodward’s lived in various
locations and moved to Fargo in 2001, when George joined the practice at Dakota Innovis
Hospital as a neurologist.
[18] During their marriage the parties had three children. The first child is GW, who was
born in 1990. GW suffers from autism and has the mental age of a 7 year old. The second child
is RW, who was born in 1993 and was 13 at the time of the original divorce, and is 16½ now.
The third child is EW, who was born in 2000, and was almost 6 at the time of the divorce, and is
now 10 years old.
[19] The parties separated in July, 2005 and were finally divorced in May, 2006. At the time
of the divorce, Maureen was a homemaker. Because of the necessity of providing full time care
for GW, she has been home schooling all the children. Maureen was granted custody of all
three children. George was given extensive visitation and exercised that visitation without any
interruption until the summer of 2008.
[20] In February, 2006 George began dating his current wife, Jennifer, and they were married
in April, 2007. The children did not attend the wedding in Las Vegas, Nevada.
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[21] Beginning shortly after visitation started between the children and their new step mother, the children began having problems with their step mother, and appealed to both their father and mother to assist them. (Affidavit of RW in support of Motion to Modify Second
Amended Judgment, docket # 97, pp. 3-9 and Affidavit of Maureen Woodward in Support of
Motion to Modify Second Amended Judgment, docket # 98, pp.1-10). For over a year,
Maureen tried to communicate with George regarding this problem and asked George to do something to help the children. George refused to do anything, and blamed the situation on
Maureen and the children.
[22] Finally after an incident involving EW and a bicycle during a visitation during the summer of 2008, Maureen refused to allow the children to go on visits to George’s home as long as Jennifer was present. This refusal to allow the children to visit was the subject of the
Referee’s decision holding Maureen in contempt and the Judge’s subsequent decision holding her in Contempt a second time.
[23] Since Judge Racek’s second Order holding Maureen in contempt in February 2009, EW and GW had been regularly visiting with their father. In addition, George had been receiving extra visitation to make up for the visitation time that was lost during the previous year.
[24] Judge Racek refused to force RW to visit with her father, and since the change of custody of EW, there has been no visitation by her at her father’s home, and no further counseling with anyone.
[25] In his decision to change the custody of EW to George, the Judge examined several factors and made several findings of fact. Among them were the findings that “George and
Jennifer had a good and stable relationship” and that “Maureen had filed six separate motions seeking various changes to George’s visitation rights.”
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[26] The Court found the following significant changes in circumstances had occurred:
“a. Maureen has persistently and without justification denied George visitation with the
children. This denial of visitation resulted in almost no contact between George, GW and E for
several months and almost no contact with R. for over a year.”
b. 'The children are significantly behind in their schooling. E, has been home
schooled until this Spring. R. was in public school until fifth grade but has not attended since
that time. GW has not attended public school for a significant period of time. Maureen chooses
to home school the children. In R.'s last standardized test which occurred over two years ago she was significantly behind in math. George also feels R. would be significantly behind in
science. Subsequent to being found in contempt, Maureen did enroll E. in Oak Grove school in
Fargo, North Dakota. E. should be in third grade, but Maureen enrolled her in second grade.
She was to have attended Oak Grove for thirty-seven days in the Spring of 2009, but missed ten
days of school E. is significantly behind in math and science. E.'s teacher recommended
additional training in math before she entered third grade. There is no indication that Maureen
has made any provision for the extra training. GW needs training in both vocational and living
skills.
c. The children have been isolated in Maureen's home. They do not interact with
other children. R. participated in a book club one time per week, and E. had a play date one time
per week. There was no evidence that GW was involved in any activities outside the home.
d. George is remarried to Jennifer and has a stable home in Grand Forks, North
Dakota.”
[27] After finding that there had been a significant change in circumstances, the Court then
held that it would be in the “children’s best interest” if they were in the primary custody of
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George. The reasons that the Judge gave for that decision were as follows:
a. George is better able to see to the educational needs of the children. George has
definite and well articulated plans for the children's education. These include returning to high
school for GW (who is eligible to attend public school until age twenty-one), vocational training, training to gain as much independence as possible, and ultimately being able to live with assistance to tl1e best limits of his ability. George wishes R. and E. to both return to public school and receive extra help with math and science, with which George is willing to assist.
Continued home schooling with Maureen will only leave the children further behind in their education.
b. George is more aware of the social and emotional needs of the children and the importance of developing outside interests. Since resuming visitations with her father, E. has learned to ride a bike, goes for walks with the family, goes swimming, visits other people's homes, plays with Jennifer's children, stays active, and goes on various outings and shopping trips with her step-mother and step-siblings.
c. George provides opportunities for the children to interact with their relatives.
d. Maureen's existence has centered on the children and on her continuing conflict with George. The children have been inappropriately exposed to many aspects of these proceedings which have resulted in R. being alienated from her father. Maureen has fostered the children's unusual sensitivity and frailty in interacting with new situations including schooling, outside activities, and most recently interactions with their step-mother.
e. Maureen's mental health issues which include obsessive-compulsive disorder, depression and anxiety adversely affect the children in their relationship with their father, step- mother, step-siblings, and other relatives. Maureen has not complied with the order of the
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referee to obtain a psychological evaluation and a parental alienation evaluation. “
[28] After making the aforesaid findings the Court then concluded that it did not have
authority to change custody of GW, since he was no longer a minor, and that a change in
custody of R could only be effectuated by the use of force and that because of her antipathy to
her father and her age that a change of custody was not in her best interests.
[29] The Court then decided to change the custody of E. It indicated that it had considered
the case of Dronen v Dronen , . The Judge claimed that because of the age differences between
R & E, and the “lack of similarity of interests and activities of the children, including the fact that E “has no ill feelings towards her step-mother, would benefit from George’s plan for her education, and enjoys her relatives and step siblings” which it contrasted with R, who the Court held “does not wish to be involved in any of these items.” Based upon George’s “emotional stability” and the “stability of his home, and Maureen’s previous lack of cooperation regarding visitation, including two findings of contempt and George’s willingness to foster a relationship between E and her mother, the Court ordered a change of custody of E and ordered that
Maureen receive the same visitation that George had previously had with E.
[30] The Court ordered that under the new arrangement Maureen would have the same visitation with E. that George had previously enjoyed.
[31] The Court then terminated George’s obligation to pay child support for E.
ARGUMENT
1. The District Court erred in failing to recuse itself from this case.
[32] After George filed his Motion for Change of Custody in March, 2009, Maureen filed a
Motion in April asking the Court to recuse itself from acting further in this case. The basis for
Maureen’s motion was the refusal of the District Court to review the deposition testimony of
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Dr. Harjinder Virdee which had been presented to the Court at the hearing held on February 2,
2009.
[33] The testimony of Dr. Virdee, a Board Certified Psychiatrist, had been taken on
December 22, 2008 pursuant to notice, and was offered in evidence at the hearing on February
2nd, 2009. Neither George nor his attorney was present at the deposition, Dr. Virdee testified at length regarding her relationships with both RW and EW as well as with Maureen. Dr. Virdee testified regarding the times she had seen RW and EW. She indicated that in 2007, when she saw
RW, she believed that the children had adjusted to the divorce and were going to visit their father. (Tr. P. 10, lines 18-22). At the time of her deposition, Dr. Virdee had been meeting with
RW several times a month during the months of October, November and December, 2008. (Tr.
P.8, lines 21-25). At that time Dr. Virdee had diagnosed RW as suffering from adjustment disorder with anxiety and depressed mood. (Tr. P. 9, lines 1-4). According to Dr. Virdee, RW had a problem adjusting to the stressors in her life and had ended up with anxiety symptoms and depression. (T.9, lines 5-9). Dr. Virdee considered these symptoms quite serious as RW was not able to eat, was not able to sleep, was up all night, was not able to concentrate and felt hopeless.
(T.9, lines 12-17). The doctor noticed that RW had lost weight and hair from her scalp which was visible. She became withdrawn and was sleeping a great deal during the day. (T.9, l7-21).
[34] When asked what was causing RW’s stress, Dr. Virdee related that RW had been hearing from her father and stepmother that “her mother had taken a great deal of the money and her mother was greedy.” (T.11,l 22-25). RW related to Dr. Virdee that while visiting at her father’s house, she was distressed because she felt she had to defend her mother. Her mother was being attacked by her stepmother and father. (T.12, l 7-25). In addition to those statements, RW had told Dr. Virdee that during her visits with her father and step-mother she believed she was being
13 used to babysit her step siblings, when she really wanted to be spending time with her father.
(T.13, l 7-16). RW felt she was being criticized by her stepmother for “not being the teenager she should be” and that she was in some way “abnormal.” (T.13, l. 17-24). Dr. Virdee thought
RW was quite happy being home schooled, had friends, and had no problems with learning.(T14, l6-19). These were the reactions that Dr. Virdee observed when she first met with
RW in 2007.
[35] In the months before the deposition, in December, 2008, Dr. Virdee was seeing RW again, and noted that her stress level had increased. RW felt that she was being blamed for a gynecological problem, perhaps a miscarriage, that her step mother had suffered, and that she was being accused of trying to break up her father’s marriage. (T.15,l.7-P.16, l.1). RW had been seeing a psychologist, Dr. Timm, to do talk therapy, prior to 2008.(T.16, l.18-p.17, l.10).
[36] Dr. Virdee explained that she had been seeing RW since July and that in November,
2008 she wrote two letters, (deposition exhibits 2 &3) recommending against having the children go to Grand Forks to visit with their father and stepmother. (T.18). RW had been seeing Dr. Kevin Schumacher, a psychologist, whose notes Dr. Virdee had reviewed prior to her deposition.(Tr. 19). When she saw Dr. Virdee in August, RW indicated that her younger sister,
EW, was becoming quite nervous about the visits with their father and stepmother, and that RW felt like she was having to take care of EW during the visits. RW was very stressed about the visits to her father’s house and did not want to see her stepmother. (t.19). RW related that her father was not listening to her when she was trying to address issues with him, and that he did not understand how she was affected by the conflict between her parents. Despite her efforts to tell her father the problems he and his wife’s behavior was causing for her and her sister, she felt her father ignored her, and only focused on how he and his new wife felt. (t.20).
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[37] RW related that during the times she and her sister were in Grand Forks at her father’s
house, that her step mother was very inconsistent in how she related to RW and EW, and that
her fluctuating moods, which included her flying into a rage at them, or crying or being upset or angry with RW was causing problems, and that RW had to protect her younger sister in these situations. (T.19 &21).
[38] RW believed that her stepmother was angry at her. As a result of that, she was very worried and had trouble sleeping at night. (T.21, l.18-22).
[39] In October, Dr. Virdee suggested that RW have her father come to therapy sessions to see if she could help them bridge the disconnection between them, however she never heard from Dr. Woodward. (T. 22). It was at this time that Dr. Virdee noticed that RW was starting to neglect herself. She was starting to look unkempt, and her hair was falling out and she was trying to hold back her tears. Her face was quivering at time, and she looked depressed. She was torn apart about whether she should let her little sister go to visit her father, because nobody was there to protect her. She was caught in a trap, because if she didn’t go to Grand Forks to visit her father, she was worried about what would happen to EW if she wasn’t there to comfort her.
On their visits, EW would climb into RW’s bed at night, and one time, after she vomited she
came to RW to help her clean it up, because she was scared to go to her father and step mother
and tell them what happened. RW was the one who kept EW calm at night and took care of her
during the visits. (Tr. 23-4).
[40] During RW’s visits, Dr. Virdee saw physical and psychological signs of the stress that
RW was under and of her deteriorating health, including her fingernails being bitten down, dark circles around her eyes, her being preoccupied with family difficulties and the activities going on around the visits to Grand Forks. (Tr. 25,l. 22-P.26).
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[41] During these months, Dr. Virdee saw both EW and RW regularly and determined that the children were very fearful of the visits with their father and step mother. They wanted to see their father, but not their step mother, as that was where they were stressed. (T. 28).
[42] Dr. Virdee first saw EW individually in November, 2008, although she had seen her at the office earlier, and in a session with RW. Dr. Virdee was aware that EW had been receiving biofeedback therapy with another child psychiatrist for anxiety problems prior to their meeting.
That doctor had stopped treating EW and had not arranged to transfer her to another psychiatrist. Because it was difficult to find a doctor who would treat EW because of her father being a physician in the community, and since Maureen was having problems finding another psychiatrist for EW, Dr. Virdee consulted with Dr. Miller, EW’s pediatrician and confirmed the presence of problems and started treating her.(T.29-31)
[43] At that time, EW had a racing heart rate most of the night, and this had now spilled over into the daytime. This was caused by fear that her mother would be going to jail and would be getting into trouble, based upon statements made to her by her father. In addition, EW indicated that she was really frightened of her stepmother. She was frightened that her stepmother would yell at her, and she didn’t dare to say anything critical when she was there. She told Dr. Virdee that she tries to be very good when she’s visiting there, but she doesn’t know what’ll happen to her. (T. 31).
[44] Dr. Virdee has seen the children in her office since 2004, when she began seeing
Maureen, and did not believe there was any possibility that Maureen had done anything to cause these children to be afraid of their stepmother. (T. 32).
[45] When asked how the stress was affecting EW’s health, Dr. Virdee indicated that EW was constantly worried because her heart is racing all the time. She’s worried that she’s going to have
16
a heart attack. EW was only a small child at that time, but she was very articulate. Dr. Virdee
could see the stress caused by EW’s visits to her father and step mother, and could tell that EW
did not want to go there. EW was worried about her mother going to jail. She indicated that
when her father called her on the telephone at her mothers, he would tell her that her “Mom is
going to be in big trouble,” and that caused her to have a great deal of fear about what was going to happen to her mother and her. EW was very afraid that she was going to be forced to
live with her stepmother, a person she fears. (Tr. 33).
[46] Dr. Virdee related that she had seen EW’s fear when she saw her acting very fearful and
holding her tears back, and also when EW had run into her lap and held her very very hard. She
saw how frightened EW was when her heart was racing. Like RW, EW wanted to see her father, but was scared of her stepmother and of what would happen to her when she was at their
house. (Tr. 34).
[47] Because she had seen the children deteriorate over the last year, and because the children were showing clinical symptoms and signs of anxiety and depression, caused by the visits to
Grand Forks, Dr. Virdee recommended that the children continue to see their father, but not be forced to go to Grand Forks and see their stepmother.(T pp.35-6).
[48] Dr. Virdee noted that EW suffers from “panic attacks” which are very frightening, even for adults. She believed that continuing visits to Grand Forks with their stepmother would only exacerbate the situation, and she recommended that visits with their father continue under some more secure situation. (Tr. 36).
[49] Based upon her observations, Dr. Virdee recommended that three things needed to be done. Firstly, the children needed to be given a time where they could visit comfortably with their father. Secondly, the children needed to have their father connect with them emotionally,
17
and thirdly, Dr. Woodward and his new wife needed to work out how they were going to handle
the children’s visits without involving the children in any kind of conflict or a situation where the children become negatively affected by their own problems.(T. 38-9).
[50] Dr. Virdee indicated that she believed the situation should be monitored and that she would be comfortable doing that. (T. 39).
[51] Dr. Virdee also noted that RW is a very intelligent, articulate and bright young lady, who is very conservative and conscious of her family honor. She indicated that RW’s involvement in the case, and in going to Court to indicate that the visitation was having a negative effect was not something which would be easy for her, and therefore her statements should be taken seriously. (T. 41)
[52] In addition, Dr. Virdee indicated that while she had previously been somewhat concerned about the homeschooling of the children, she found that based upon the work that
RW was doing, including reading college level material and studying Japanese, that she did not believe the children were being negatively impacted by being home schooled. (T. 42)
[53] She noted that EW was very well adjusted and bubbly and that her anxieties were directly related to her visits and seeing her father’s wife (T.42).
[54] Dr. Virdee did not believe she was qualified to assess GW, and did not do so.
[55] At the hearing held on February 2, 2009 before Judge Racek on George’s Second
Motion for Contempt and Maureen’s Motion to Suspend Visitation, Maureen offered in evidence the above deposition. (Transcript of February 2, 2009 hearing, P. 5, line 23-P. 6, line 7).
[56] In response to the offer of the deposition, the Court asked counsel to point out the most compelling thing that Dr. Virdee had to say. (Tr. P. 6, lines 9-11).
[57] After some discussion regarding earlier statements in the deposition by Dr. Virdee, and
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comments by Dr. Woodward’s counsel, the Court asked about Dr. Virdee’s comments regarding
the children’s deterioration over the last year, and counsel pointed out the testimony, which the
Court indicated it read (Tr. P. 11). Counsel pointed out to the Court that there were numerous
references in the deposition to how the children were being affect the threat or fear of having to
visit with their stepmother. (Tr. P. 12, lines 13-19).
[58] Maureen then offered in evidence an email that RW sent to her father, and played a recording of several conversations between RW and her father in December, 2008. (Tr. Pp 15-
16).
[59] Dr. Woodward was then called to testify by Maureen and was examined by Maureen’s
counsel, the Court, and his counsel, after which the Court heard argument from the attorneys.
[60] During the arguments, the Court noted that it had only read a little bit of Dr. Virdee’s
deposition. (Tr. P 24, lines 9 & 10).
[61] After the completion of the arguments, the Court analogized the children’s anxiety and stress over the visits with their stepmother to his college age daughter’s stress over having to
share a bathroom with forty other children when she went to college. (Tr. P. 27, lines19-24).
[62] During the closing arguments, counsel for Maureen asked the Court to review the
psychiatrist’s deposition, and the Court indicated it would not do that (Tr. P. 31, lines 9-18).
[63] Thereafter the Court held Maureen in contempt and ordered visitation to begin
immediately with some preliminary counseling by a counselor in Grand Forks.
[64] After this hearing, George moved for a Change of Custody. On April 15, 2008 Maureen asked the Court to recuse itself from further hearings in this matter because of its decision not to take the time to read and review Dr. Virdee’s deposition before rendering his opinion at the
February 2, 2009 hearing.
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[65] On April 28, 2008, the Court issued its Order denying Maureen’s Motion to recuse the
Court. In denying Maureen’s Motion for his recusal, Judge Racek claimed that Plaintiff’s
Counsel had only pointed out one section of Dr. Virdee’s deposition dealing with the children’s
emotional and psychological wellbeing, and then claimed that the “Plaintiff had never pointed
out any other relevant portions of the deposition.”
[66] The transcript of the hearing on February 2nd reveals that the Court was in error in
making this statement. As he was introducing the deposition, counsel noted that Dr. Virdee’s
deposition spoke very strongly to the fact that the children are suffering emotionally and
psychologically and that they would be in danger if they were forced to visit their stepmother.
(February 2, 2009 transcript, page 5, line 23- page 6, line 7.) When asked to point out Dr.
Virdee’s most compelling testimony, counsel pointed to the exhibits from the deposition (T.p.6,
l.2-5) Then counsel refers to Dr. Virdee speaking at length, beginning…on page 13 about how
the children are, the depressive symptoms they’ve exhibited and the fact that they are getting medications which are not normal for children their age, and the fact that the doctor makes recommendations about the visitation. (T.p.7, l.8-13). Reference is then made to the fact that Dr.
Virdee has been seeing the children deteriorate and that the visitations have been detrimental to
them, and that E’s panic attacks are very frightening for her. (T.p. 7, l.14-21)
[67] Counsel then points out to the Court that the deposition was properly noticed and that
George’s counsel chose not to attend, and that Dr. Virdee’s testimony is “rather strong to the fact that Maureen does not cause this, that this is the children [speaking].”(T. p. 7, l.22-25).
Counsel then points out that Maureen has provided a “prima facia case” that the children’s mental health is endangered from visiting with their [step]mother.” (T. p.8, l.15-17).
[68] Later in the argument, counsel returns to referencing the deposition of Dr. Virdee and
20 her testimony on page 25 of the deposition with regard to the physical, emotional and psychological signs of deterioration which Dr. Virdee was observing (T. p. 11, l.7-22). The Court indicated that it read that section, and counsel then notes that Dr. Virdee’s testimony refers on an earlier page in the deposition where Dr. Virdee speaks about R’s perception that her stepmother is angry with her. (T.p.11, l.24 to p.12, l. 1).
[69] After mentioning this, counsel goes on to point our that Dr. Virdee testifies about Dr.
Fleissner, the psychiatrist withdrawing from providing care for E, as well as Dr. Virdee’s conversations with Dr. Miller, E’s pediatrician. It was specifically pointed out to the Court that on page 33 of the deposition, Dr. Virdee explained how the stress was affecting E’s health.
[70] Counsel then indicated to the court, that the deposition was forty five pages long, and he did not know how to tell which testimony was most important. He indicates that the doctor made numerous references to how the children are being affected by the threat or the fear that they have of visiting their stepmother. (Tr. P. 12, l. 13-19). Counsel makes it clear that all of this conduct was conduct which occurred after the previous hearing before the Referee (Tr. P. 12, l.23-p.13, l.3).
[71] In final argument, counsel again referenced the undisputed testimony from the psychiatrist that the children are suffering as a result of their contact with their stepmother. (Tr.
P. 22, l. 6-10).
[72] In questioning counsel, the Court notes that it only read “a little bit” of Dr. Virdee’s deposition. (Tr. P. 24, l. 9-10.
[73] In this case, the District Court quite correctly cited the relevant cases regarding whether a Judge must recuse himself. As noted by Judge Racek, Rule 3(C) makes a judge’s disqualification appropriate when the judge’s impartiality might reasonably be questioned. As
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noted by this Court in Sargent County Bank v. Wentworth, 500 N.W. 2d, 862, 877 (N.D.
1993), the disqualification directions in Rule 3(C) are mandatory and the primary concern is the preservation of public respect and confidence in the integrity of the judicial system. Thus disqualification can be essential to satisfy the appearance of justice, even without intentional bias on the part of the Judge. As noted, an objective standard is used to determine whether a Judge must recuse himself. The test is whether a reasonable person, on the basis of all the facts, could reasonably question the Judge’s impartiality.”
[74] In response to Maureen’s claim that the Judge did not perform his obligations diligently and fairly because of his failure to read Dr. Virdee’s complete deposition, the Court indicates that it read the sections which were pointed out to it on pages 6 & 12 of the deposition. The
Court never references the other sections of the deposition that were pointed to by counsel during his arguments, nor does he indicate that he ever looked at any other part of the deposition, including the letters which were exhibits attached to the deposition.
[75] Instead, Judge Racek cited this Court’s opinion in Linrud v. Linrud, 552 N.W. 2d 342,
345 (N.D. 1996) for the principal that litigant’s have a burden of developing an adequate record
for the issue raised in the Court, and that the failure to develop such a record is borne by the litigant.
[76] However, unlike Mrs. Linrud, the basis for Maureen’s objection to Judge Racek’s
continuing as the Judge in this case was rather clear. At the hearing on February 2, 2009,
Maureen had offered in evidence the deposition testimony of an expert witness with regard to
the issue of whether continuing visitation under the Court’s Order was harmful to the children.
(Transcript February 2, 2009 hearing, page 5, line 23- page 6, line 7.) The Court did not reject
the deposition testimony, but instead decided to not listen to this witness.
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[77] The Court’s behavior in rejecting the deposition testimony without even reading the deposition was the equivalent of a Judge walking out of a bench trial during a witnesses testimony and then rendering his decision without ever reviewing the testimony. No reasonable person could believe that the party offering the witness was receiving a fair hearing.
[78] Basic principles of due process require the Court to give each party an opportunity to be heard on an issue. This was not a question of the Court limiting the way testimony could be presented or excluding the testimony because of some failure on the part of the Plaintiff to give notice or to comply with a rule, but was instead, a unilateral and unexplained decision to completely ignore the testimony of an expert witness, without even “hearing” the testimony.
[79] Judge Racek’s action, in so completely discounting the testimony of Dr. Virdee without even reading what she had to say, was an action that any reasonable person would interpret as the Judge having previously decided that Dr. Virdee was not a credible witness in this case. The
basis for this decision is unknown, and the public appearance of the Judge ignoring her
testimony, without even reading it, indicates a pre-existing prejudice against the witness. Since
Judge Racek gave no indication as to why he would not “hear” Dr. Virdee, the only conclusion
that seems logical under the circumstances is that the Judge was not listening to the testimony,
nor considering the testimony with an open mind, but rather had made up his mind prior to the
hearing as to what he was going to do, and did not wish to consider any facts which did not
accord with his preexisting opinion.
[80] Even if a Judge is free to disregard an expert witness because he believes her not to be
credible, he does not appear to be fair and impartial, when he/she decided not to listen to a
witness, before even hearing what he/she has to say. The record does not make clear why Judge
Racek would not read Dr. Virdee’s deposition, nor was why he chose to ignore her testimony
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about the harm that visitation with their father was doing to the children. It is clear that he
rejected her testimony without any consideration.
[81] Actions like this which show partiality to one side by disfavoring a witness from the
other side in this manner can hardly be said to promote the public integrity and impartiality of
the judiciary.
[82] Judge Racek’s action in completely ignoring the testimony of a witness without even
hearing it was a profound error which goes to the heart of due process. If a Judge is free to
avoid hearing the testimony of any witness, without even claiming a reason to do so, and the
process by which Judicial decisions are rendered will become so lacking in public respect and
confidence that citizens will no longer believe that the Court’s will give them a fair hearing.
[83] This Judge’s decision to ignore evidence without even hearing it was a violation of his
Judicial duties and infected the whole process by which this decision was made.
2. The District Court’s decision to change the custody of E was clearly erroneous.
[84] The determinations of the District Court that there had been a substantial change in
circumstances and that those changes warranted a change in the custody of E were findings of
fact. Findings of fact will not be reversed on appeal unless they are clearly erroneous, and a
finding is clearly erroneous if it is induced by an erroneous view of the law, there is no evidence
to support it, or this Court is convinced a mistake has been made. Eberle v. Eberle, 2009 ND
107 ¶ 17.
[85] In reaching his decision that there had been a significant change in circumstances, Judge
Racek made four claims. Firstly, he claimed that Maureen had persistently and “without justification” denied George visitation with the children. Secondly, he claimed that the children were significantly behind in their schooling as the result of Maureen’s home schooling them. 24
Thirdly, he held that the children were “isolated” in Maureen’s home. Fourthly, he found that
George’s remarriage to Jennifer and they had a “stable” home life in Grand Forks.
1. Maureen’s persistent unjustified denial of George’s visitation.
[86] In rendering his decision that Maureen’s denial of visitation was persistent and
unjustified, Judge Racek ignored both the facts of this case and the testimony of RW, Dr.
Laidlow, Dr. Schumacher and Dr. Virdee. Despite the fact that professional psychologists and psychiatrist indicated that the children’s refusal to visit their father was the result of the actions of their step-mother, and not the actions of their mother, and despite the fact that the Court had ordered visitation to resume and that it had resumed after the February hearing, as least with regard to GW and E, the Court continued to see the interruptions in visitation as being instigated by Maureen, rather than a response by her to the children’s increasing distress.
[87] Whether it was because the Judge identified with Dr. Woodward, [May 21st, 2009 hearing; Tr. P. 108, e’s 11-12] or refused to listen to RW and the doctors, it was clear from the evidence that the children in this case were the ones who were suffering from the forced visits, and it was not an attempt to interfere with Dr. Woodward’s visits, but to help the children from being forced to interact with a step mother whom they did not trust and feared that was the motivation behind Maureen’s actions.
[88] At the time the Judge entered his Order in August, both EW and GW had been visiting their father and step mother regularly for the last 6 months, and had even received make up visitation, which they were continuing to receive. Maureen had already been held in contempt for her resistance to providing this visitation, and punishing her again, by taking away EW, after visitation had been restored was unnecessary and harmful to EW.
2. The Children are significantly behind in their schooling
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[89] The second claimed change in circumstances was the claim that the children were now
significantly behind in their schooling. Although no evidence was presented indicating how the
children had been doing in their schooling at the time of divorce, nor how this differed from the
situation that existed prior to the divorce, Judge Racek decided that the children’s “home
schooling” despite Maureen’s compliance with the home schooling law, and Dr. Virdee’s
observations that R was doing quite well in several subjects, that this was a significant change in
circumstances that warranted a change in custody.
[90] Despite the fact that neither George nor his new wife, had ever done anything to assist
the children with their education, nor done anything to help GW with his difficulties from his
autism, Judge Racek decided that E would receive more assistance from her father and step
mother than she was currently getting from her mother. No evidence was ever presented to
support this point, because neither George nor Jennifer had ever done anything to help the children educationally either before or since the divorce.
3. The Children have been isolated in Maureen’s home.
[91] Despite a lack of evidence on this point, and despite RW’s testimony and affidavits
indicating that she did interact with other children, the Court decided to make this finding based
upon the testimony of George. Although evidence had been presented that the children had
been involved in activities at the synagogue, and that RW had attended school until the fifth
grade, the claim was made that the children did not interact with other children.
[92] However, no proof of this point was ever presented. EW had been attending public
school in the Spring and was scheduled to return to school and the children had friends and
used their computers to interact with them, but this was ignored. In addition, Maureen had
testified that GW was involved in some part time schooling, and no evidence was presented to
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indicate that the children were suffering at all, because they were home schooled. In this point,
Judge Racek merely took George’s word for what was happening, despite the fact that George
was not in the home, and no harm was shown to exist, even if the children did not have as many
friends as others have.
4. George and Jennifer’s stable home in Grand Forks.
[93] George and Jennifer were married in the summer of 2007 and had been married for
almost two years when the Motion was brought to change the custody of the children. George’s
job history showed that he had changed jobs in the last few years and had never worked at the
same job, or in the same community for more than five (5) years. This is hardly a record of
stability in terms of home and community involvement. Neither George nor Maureen are from
North Dakota or Minnesota and neither has any family in the area. How this is a change of
circumstances from the time of the divorce is not clear, and why it should impact custody is also
not clear, especially since it is Jennifer’s actions with regard to George’s daughter’s which has
caused the disruption in the visitation here.
[94] Based upon the aforesaid changes, Judge Racek gave five reasons why the children’s best
interest favored giving George their primary custody. That these were unsupported by the
evidence is Maureen’s position.
5. George will better see to the children’s educational needs.
[95] Here Judge Racek relies on his claim that George has a “definite and well articulated
plan for the children’s education.” Despite the fact that GW is not a minor and despite the fact that the Court is not entering an order regarding GW’s education, Judge Racek claims that returning GW to high school and giving him vocational training and training to gain as much independence as possible and to be able to live with assistance to the best limits of his ability is a
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good plan.
[96] Here Judge Racek’s ignorance of GW’s situation is clear. No evidence was ever
presented to the Court regarding whether GW could actually achieve anything from entering
into a high school or vocational training program. Indeed when George was asked if he had
even investigated an independent living situation in his area, he knew of none. Despite the fact that Maureen had stayed home and worked with GW for years, and had gotten him educational
materials and taken care of his medical and other needs, and despite the fact that George had
done nothing except visit and play with GW, Judge Racek believed that GW would be better off
with his father. Absolutely no evidence was presented to support this, and this conclusion is
another indication that, for whatever reason, Judge Racek was prejudiced against Maureen, and
biased in favor of George.
6. George is more aware of the social and emotional needs of the children and
the importance of developing outside interests.
[97] Once again, the Judge’s conclusion is based upon George’s statements rather than the facts of the case. Although the evidence showed that George’s awareness of the “emotional needs” of his daughter, EW, caused him to stop giving her anti-anxiety medication which her doctor’s had proscribed for her, and had led him to encourage his parent’s and the rest of his family not to have contact or a relationship with RW, because she did not want to be around
Jennifer, Judge Racek found George to be more “aware” of his children’s social and emotional needs.
[98] Despite the fact that throughout the children’s life it had been their mother who had involved them in activities, taken them to social occasions, and had the general responsibility for caring for three children, including one who suffers from autism, without any significant help
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from her husband, and despite the fact that George had not involved the children in any
activities beyond the normal visitation activities when he had the children, both prior to the
interruption in visitation, and afterwards, Judge Racek concluded that he would better provide
for the children’s social and emotional needs. This in the face of George’s refusal to continue in
therapy with his daughter, RW, who would not do what he wanted. George is a bully. He
bullied his former wife until she got help and was able to stand up to him. He bullied his oldest
daughter, RW, until she stood up to him, and by changing EW’s custody to him, the Court has
insured that she will be deprived of the support that her sister needed to stand on her own, and
she will be bullied and manipulated by her father until she finally rebels.
7. George provides opportunities for the children to interact with their relatives.
[99] Perhaps no finding flies in the face of reality as strongly as this one. This finding was made despite the fact that George testified at the July 23, 2009 hearing that his parents weren’t willing to see RW unless she would see Jennifer and that he agreed with that position (Tr. P.
245-6). In other words, despite the fact that RW and Maureen wanted to arrange visits between
George’s family and RW where Jennifer would not be present, George’s family’s decision not to see RW is interpreted by the Court as George providing opportunities for the children to
“interact” with their relatives.
[100] Based upon RW’s experience, where she has been cut off from George’s family because she does not want to be around Jennifer, it is at least questionable whether interactions with that family are really healthy. However, despite that, it is George who supports the family not seeing
RW, and not Maureen, and therefore, because George’s “opportunities” are conditioned on RW agreeing to visit with Jennifer, it is Maureen, not George who provides greater opportunities to visit with relatives.
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8. Maureen has created the children’s problems.
[101] With regard to this factor, Judge Racek has found that Maureen’s existence centers on her children and on continuing conflict with George. He finds that the children had been
inappropriately exposed to many aspects of the proceedings, and found that this exposure had
resulted in R being alienated from her father. He also found that Maureen had fostered the
children’s unusual sensitivity and frailty in interacting with new situations, including schooling,
outside activities and their step-mother.
[102] Maureen concedes that her existence centers on her children, and maintains that has
been the case since they were born. She denies that she wishes any conflict with George, and
maintains that all of her actions have been motivated by attempts to help her children.
[103] The Judge’s finding that Maureen had inappropriately exposed the children to many
aspects of the proceeding and had caused R’s alienation from her father, is in direct
contradiction to the evidence provided by the psychologists and Dr. Virdee and the history of
this case. It was George and his wife, whose comments about Maureen, especially those
demeaning comments, such as those made in the email, which was presented as an exhibit at the
change of custody hearing, which created the alienation between the children and their father. It
was George’s unwillingness to listen to his daughter and to respect her which resulted in R’s
alienation from him. It is George who discontinued the counseling with R, and not Maureen.
All Maureen has done is to try and help her children deal with a difficult situation where their
father ignores their conditions, and their needs, and only looks after himself.
[104] Unfortunately, Judge Racek was unable to see this egotism, despite its many
manifestations in the relationships, and only in ignoring and disrespecting the feelings of these
children, could he order the change in custody, which surely will have a continuing harmful
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effect on EW.
9. Maureen’s mental health is adversely affecting the children.
[105] While several of the other best interest findings appear to be unsupported and in direct
contradiction to the evidence, the use of this factor is both unsupported and insulting. For the
Court to conclude there is any evidence to support this claim, would require it to find that Dr.
Woodward, a neurologist, and not a psychologist, was qualified to diagnose his former wife and
to render an opinion regarding her mental state. Despite the fact that George has had
Maureen’s medical records for years, dating back at least to her request to move with the children to Minneapolis, he has never once asked to have Maureen submit to a mental health examination pursuant to Rule 35, nor offered in evidence any testimony from a mental health professional with regard to exactly what mental illness or illnesses Maureen suffers from and how and if they affect her ability to parent her children.
[106] The Court’s conclusion that this is so, is yet another example of an unsupported conclusion which exhibits the Court’s animosity towards Maureen.
[107] In addition, the Court’s order for Maureen’s to have the requested evaluations was on appeal and this Court’s Order affirming that decision had not yet been rendered at the time of the hearing and decision on this motion.
[108] Nor has the Court indicated in any way how Maureen’s failure to have these evaluations causes it to be in the best interests of the children to be with George.
10. Uncited Factors
[109] Among the many factors to be considered by the Court in conducting its best interests analysis under section 14-09-06.2 N.D.C.C. are the emotional ties between the child and her
31
parent, as well as the inclination of each parent to provide needed medical care, and the
desirability of maintaining continuity for each child. While speaking to its perception that
Maureen has not facilitated the relationship between EW and her father, the Court never
addresses the fact that George and his wife have continually attacked Maureen in front of her children, and are so bold as to send the insulting email which was introduced at the hearing.
[110] While claiming that the children are isolated in Maureens home for most of their time,
Judge Racek ignores the closeness of the relationship between RW and EW, as well as that
between GW and EW, and disposes of that by claiming that because of the age difference
between the girls they lack similar interests and aren’t involved in activities together. Here the
Judge wants to have it both ways. First he claims they are only involved with themselves and
then he claims they aren’t that close. This logical inconsistency is totally unsupported by the
evidence, especially the evidence from RW and Dr. Virdee as well as that provided by Maureen.
[111] It is clear that Judge Racek had already decided what he wished to do, and any facts
which did not fit into his scheme of things were just ignored.
3. The District Court’s decision regarding visitation between EW and her mother and siblings did not reflect consideration of the necessary factors.
[112] After deciding to change EW’s custody to George, the Court ordered that Maureen
would have the same visitation with EW that George previously had with all the children, with
the recognition that the children should spend weekends together.
[113] Nothing in the Judge’s Order or decision indicated that the Judge considered the relevant factors in ordering visitation in this case. Unlike George, who works upwards of 50
hours per week, Maureen is not currently employed. There is no recognition in the Judgment
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that EW is going to have difficulty adjusting to a new home, and no recognition of the fact that
RW refuses to go to George’s home, and that two sisters who were so close are now going to
hardly see each other. Nor was there any explanation, considering the Court’s concluding that
George would be supportive of visitation between EW and her siblings and mother, as to why
her mother was limited to two weeks in the summer and one week at the winter holiday time, as
her mother and siblings would be available to spend more time with her.
[114] The visitation order in this case does not reflect any consideration of what visitation is in
the best interests of a 10 year old girl who is being forced to leave the home of her mother and
siblings, and is another indication that this Judge did not give due nor fair consideration to what
he was ordering in this case.
CONCLUSION
[115] Judge Racek’s refusal to read or consider the deposition testimony of Dr. Virdee at the
hearing on February 2, 2009 was a clear indication that the Judge was not the fair and impartial arbiter which the law guarantees to the parties. His subsequent refusal to recuse himself when it
would appear to a reasonable person that the Judge’s actions in ignoring and not reading the
deposition were not the actions of an impartial person was an error. His subsequent decision to
change the custody of EW was not supported by the evidence, and was a further indication that
he was not considering all the evidence in this case.
[116] This Court should reverse the District Court’s decision and immediately return EW to
her mother’s custody, rather than to force her to continue to live in a situation in which she is
suffering continuing emotional harm.
Respectfully submitted this 8th day of March, 2010.
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William Steven Kirschner Attorney for Plaintiff/Appellant Kirschner Law Office 1352 Page Drive South Suite 104 Fargo, North Dakota 58103 (701) 293.5297 ND Bar ID # 03713
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