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 5 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 6 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 7 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. 8 [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.