Sisk v. Sisk

CROTHERS, Justice,

dissenting.

[¶ 29] I respectfully dissent. I would reverse because neither the district court nor the majority adequately account for the “and the minor children” provision of the original divorce decree. Additionally, I believe the district court’s actions deprived Stewart of a fair hearing.

[¶ 30] The necessary starting point is a better understanding of the facts and why the minor children were given a voice in visitation. Stewart and Tammi were married for approximately twenty-seven years and had six children together, two of which were minors at the time of this proceeding. In 2002, Tammi left Stewart and the children without so much as a “goodbye” and moved to Oklahoma. She immediately moved in with a man she had met on the Internet and his teenage son. Tammi made no attempt to contact the children by phone or in person for nine months and, in fact, declined an opportunity to travel to North Dakota to see her children during that time in order to attend her boyfriend’s family reunion in California.

[¶ 31] At the district court proceedings, the minor children, ages eleven and fourteen, expressed great fear and apprehension about visiting their mother, stating she was “like a stranger,” they “didn’t know her” and admitting they “didn’t want to see her.” The youngest was angered by the fact that Tammi left them, testifying “if she loved me she would have stayed home.” Both children denied Stewart spoke negatively of Tammi. In fact, neither knew the reasons for the divorce, other than the youngest’s explanation that “[Tammi] was always on the computer and [Stewart and Tammi] fought.” Both children reported they were fearful of visitation in Oklahoma because they did not know and were afraid of Tammi’s boyfriend.

I

[¶ 32] When the parties were divorced in 2003, Tammi’s attorney drafted the divorce judgment to state, “[Tammi] is granted reasonable and liberal visitation as agreed upon [b]etween the parties and the *214minor children.” (Emphasis added.) The majority discounts the relevance of this language, arguing Stewart illegitimately used it as an excuse to justify his actions. The majority relies on a Minnesota Court of Appeals case, Barrett v. Barrett, 394 N.W.2d 274 (Minn.App.1986), to bolster its position.

[¶ 33] At the outset, visitation in Barrett varied greatly from the decree here. 394 N.W.2d at 278-79. The Barrett judgment granted specific visitation to the mother' — specifically, alternating weekends, holidays, and two weeks’ summer visitation, and only allowed for “the exact days and times [ ] to be agreed upon between [appellant] and the children.” Id. at 279. Furthermore, at issue in Barrett was whether such language should be stricken, not whether one parent could reasonably rely on such language as allowing for the children’s “veto power.” Id. Here, Stewart’s contention lies not with whether such language can or should be stricken; rather, it is whether he deliberately and intentionally denied Tammi her visitation rights by relying on the terms of a valid judgment and whether he received a fair hearing. Therefore, Barrett provides no assistance when resolving the current matter.

[¶ 34] Stewart stated his reliance on the “and the minor children” provision in the judgment:

THE COURT: Paragraph three says under terms of judgment, “That the plaintiff is granted reasonable and liberal visitation as agreed upon between the parties and the minor children.” That’s what you’re referring to?
STEWART: Correct.
THE COURT: Alright and so you’re [sic] assertion is that as a result of that language that the children can decide whether or not they have visitation. Is that your interpretation?
STEWART: The children have to have their considerations taken into account.

There are, in fact, numerous references made by Stewart throughout the transcript expressing his reliance on the “and the minor children” provision. It is long-established in this state that a court’s judgment, “however erroneous, is a complete justification, until reversed or set aside, of acts done in its enforcement and a protection to those who acted in good faith in reliance upon it.” Remmick v. Mills, 165 N.W.2d 61, 66 (N.D.1968). We have even held an invalid order must be obeyed until stayed or reversed by order review. State v. Zahn, 1997 ND 65, ¶ 14, 562 N.W.2d 737. I therefore have trouble following how the district court and the majority can fault Stewart for relying on the judgment in this case.

[¶ 35] The majority also concludes Stewart’s conduct was insufficiently consistent to show there was a genuine reliance on the “and the minor children” provision as an actual grant of “veto power,” pointing to such instances as Stewart’s willingness to arrange the August 2004 visitation and his statement that Tammi could “physically take [the children] if she wanted to.” However, such instances show Stewart’s willingness to facilitate visitation while preserving the children’s input, as provided for in the judgment. The two minor children both testified that when visitations were arranged, Stewart always indicated the children could do “whatever [they] want to do.” These instances are not evidence that he did not genuinely rely on the “and the minor children” language when he did not force the children to visit or speak with their mother.

[¶ 36] Stewart does admit apprehension about “forcing” his children to participate in visitation, even if the judgment were worded differently, both because the *215children are of an age that forcing them would be difficult, and because he is “their only dependable parent.” However, expressing such concerns is a far cry from permitting a finding of “willful and persistent interference.” Furthermore, the majority’s implication that Stewart would have violated the divorce judgment had it never contained the “and the minor children” provision is speculation.

[¶ 37] The majority fails to point to a single instance of Stewart’s overt, active conduct actually rising to a level of deliberate interference with or “willful and persistent denial of’ visitation, but proposes Stewart’s inaction has risen to this level. However, Stewart’s inaction cannot be interpreted this way under established precedent, especially in light of the “and the minor children” provision of the judgment. See Sweeney v. Sweeney, 2005 ND 47, ¶¶ 13, 17, 693 N.W.2d 29 (holding “willful and persistent denial” existed when mother “engaged in a continued course of conduct which minimized, limited, and obstructed” father’s relationship with the child including failure to follow visitation orders, interrupting or interfering with visitations, and proactively denying reasonable access to the child); Hendrickson v. Hendrickson, 1999 ND 37, ¶¶ 3, 14, 590 N.W.2d 220 (holding attorney’s fee award was warranted when custodial parent’s “outrageous” conduct included removing children at the time of scheduled visitations and refusing to discuss or arrange visitation).

[¶ 38] In sum, the record does not support a finding that Stewart deliberately interfered with visitation. Nor does the record support a conclusion that the “and the minor children” provision of the divorce decree was given proper application. The district court’s decision was therefore clearly erroneous and could, in fact should, be reversed on that basis alone. However, the court’s conduct during the hearing presents an even greater concern and reason for reversal.

II

[¶ 39] This Court has indicated:

[A] trial court will ordinarily have broad discretion over the conduct of a trial or hearing. We also recognize that the court may impose reasonable restrictions on the length of the hearing or the number of witnesses allowed. However, when the court employs a procedure which fails to afford a party a meaningful and reasonable opportunity to present evidence on the relevant issues, the court has abused its discretion and violated the party’s due process rights.

Gullickson v. Kline, 2004 ND 76, ¶ 16, 678 N.W.2d 138. Here, the district court’s conduct resulted in a hearing that cannot be considered “fair” or consistent with the requirements of due process.

[¶ 40] The hearing began to deteriorate after approximately 45 minutes, when Stewart’s counsel stated he would call a psychologist to testify about the potential harm visitation posed to the children. The court responded:

[Y]ou’ve got thirty minutes. After that I will hear the testimony, and unless you can prove there is endangerment, something highly detrimental, it’s got to happen. I’m not interested in what the kids may want to do or not. That’s not their option, and if anybody is giving them legal advice to that they’re in error because we’re fooling around instead of getting down to the nitty gritty. So I suggest I’ll give you thirty minutes. From that point on you may not like what I’m going to do. So if you want input into this, it’s time to get going.

After the psychologist’s testimony, Stewart testified. Following brief questioning, during which Stewart insisted he was not *216attempting to interfere with Tammi’s visitation, the district court said, “You know, Mr. Sisk, you keep that up. You’re getting boring.” The court continued, becoming less detached and more confrontational and insulting:

STEWART: Yeah. I didn’t realize I was supposed to force these kids to do something.'
THE COURT: No. Don’t make the agreement.
STEWART: Well I wasn’t counsel. I mean I wasn’t aware of that see.
THE COURT: Wait a minute. You knew those kids were going to rebel.
STEWART: Well I didn’t for sure. I didn’t know they were going to rebel.
THE COURT: You didn’t?
STEWART: Well I knew they didn’t want to go to Oklahoma, but I thought maybe they would foster some visitation with their mother while they were here.
THE COURT: You didn’t think they would rebel?
STEWART: I really didn’t know what was going to happen to tell you the truth. I mean I really didn’t.
THE COURT: You’ve got to be dreaming.
STEWART: Well I ... Yeah.
THE COURT: You’re pretty naive then.

As Stewart attempted to explain his reasoning in arranging the church as a drop-off location for the visitation, the court became more confrontational:

STEWART: I suggested ... I think I probably suggested ... Well [my lawyer] probably asked about a common meeting place like—
THE COURT: Well—
STEWART: —a restaurant or something.
THE COURT: I’m not talking about the meeting place. I’m talking about who asked the pastor and that other person to be there?
STEWART: Well we can’t meet in the church without somebody there for their—
THE COURT: No, it didn’t have to be in the church.
STEWART: Well I needed witnesses. I mean—
THE COURT: Forwhat?
STEWART: Well it was the church property. I mean if something would have happened—
THE COURT: You had a big mouth.
STEWART: No.
THE COURT: You had a big mouth and asked somebody to be there so you could make a scene.
STEWART: I didn’t make a scene.
THE COURT: Yes you did.
STEWART: I wasn’t even there. I mean I went out into my — I was sitting in my car in the parking lot.
THE COURT: That’s right and the exchange could have taken from one vehicle to the next, [sic] So who had the big mouth to tell them who to be there? [sic]
STEWART: Well I — The church—
THE COURT: No.
STEWART: No, I don’t — I didn’t ... I don’t know if I asked anybody. I don’t know how that went.
THE COURT: Oh you don’t know how that went is clever right now.
STEWART: Well I mean — you know — I mean I thought that was—
THE COURT: You know—
STEWART: —you know to be—
THE COURT: You know, Mr. Sisk, let me tell you how you look.
STEWART: Okay.
*217THE COURT: You’re a neutral person? I’m going to stand in the corner while all this takes place.

At this point in the proceeding, the district court judge actually rose from behind the bench and stood in the corner of the courtroom, facing the wall, mocking Stewart:

THE COURT: Right, and you think you have respect from your kids for being neutral? Forget it.
STEWART: Well I didn’t know. I mean—
THE COURT: You didn’t know? You go to see a counselor in October because it’s beneficial to the hearing. It’s not even beneficial to the kids. This doctor has to tell you your kids have abandonment issues and you aren’t concerned about that?
STEWART: I’m concerned about it, yes.
THE COURT: But you’re neutral.
STEWART: I mean between her and— you know—
THE COURT: No. You’re neutral. You’re a nothing.
STEWART: Okay.
THE COURT: If you’re neutral you’re a nothing because if they don’t want it I don’t have to do it. But yet I made an agreement.
STEWART: I — yes I made the agreement to bring them there, right. I thought it was up to Tammi and the kids to carry out the agreement. I didn’t know that was anything for me—
THE COURT: I forgot you’re neutral again.

The court began asking Stewart about why he did not force the children to participate in visitation:

THE COURT: [Laughs] That day you said there’s no court order so you don’t have to do it, couldn’t you have simply said, “This is it kids. You’re going to do it”?
STEWART: I didn’t feel that was my place, Your Honor.
THE COURT: Well what is your place as a parent? I don’t understand you.
STEWART: Yeah but isn’t—
THE COURT: And I’m going to sit here for the next half hour and I won’t know any more.
STEWART: I know. I just didn’t feel it was in the best interests of my kids to force them into a situation they felt uncomfortable in.
THE COURT: Then why did you make the agreement?
STEWART: Well—
THE COURT: Because Tammi wanted it therefore Tammi can have it, but if the kids don’t want to do it I look good. I did everything, and you did nothing.
STEWART: Well I had no idea it was going to deteriorate into what it did.
THE COURT: [Laughing] I’m sorry, Mr. Sisk. You’re dreaming.

The court then opted to provide its opinion on the reason for the parties’ divorce:

THE COURT: Well do you understand where your divorce came from?
STEWART: Actually, not really. [Laughs] I mean ask Tammi.
THE COURT: No, I can tell you today. You were a nothing.

The court continued its questioning for some time and then, possibly reflecting on the impropriety of its actions, stated:

I guess I’m telling you my frustrations and maybe I shouldn’t do that either. I’m being — a [j]udge should be very neutral but I’m telling you how I’m seeing it. I’m being honest with you. I’m trying to-I mean as the — Dr. Johnson *218said — you know — it would have been better if this had been worked out ahead of time. That doesn’t always happen and so I’m trying to figure out what can I do and I don’t have an answer. So I guess go ahead, [counsel]. I didn’t mean to interrupt you but I got exasperated.

Questioning was shortly turned over to Stewart’s counsel, who was unable to continue the proceedings due to the judge’s conduct:

THE COURT: Yeah. Mr. Aim, do you want to — have any rebuttal or redirect — I guess — we would call it.
MR. ALM: I guess I’m a little fearful so no, Your Honor.
[LAUGHTER]
MR. ALM: I mean to be quite frank — I mean. No, Your Honor—
THE COURT: You know, Mr. Aim, let me tell you this. I get exasperated and I say these things. I get them out of my system so I’m better off then — I mean — and I should apologize because it’s not tactful for me to do-that, but I have to express what I’m feeling. But that does not prevent you from representing your client. I want you to understand that. So certainly feel free to pursue whatever avenue you want to go ahead with.
MR. ALM: I won’t, Your Honor. I’m sorry.
THE COURT: No, I mean that’s your prerogative. I have to ... Okay. You had nothing else then?
MR. ALM: I have nothing else.

Even after this point, the district court threatened Stewart with contempt of court and financial ruin, telling him at the conclusion of the hearing:

You’re going to have to quit being neutral and you’re going to have to decide do I stay a farmer or do I get my kids to do what they’re supposed to do. You’re going to have to decide to get off the fence or be in contempt of court, and I will own your farm and you will not. So it’s time to tell the kids this is the way it’s going to be, and if you have problems then I guess you’ll pay me money.

[¶ 41] The majority is apparently untroubled by the conduct of the district court and the apparent or actual deprivation of a fair hearing that occurred. However, this Court has reversed for potential deprivation of a fair hearing in less extreme circumstances. In Gullickson, the “overall tenor and tone of the hearing,” which included allowing the plaintiff to sit at counsel table rather than the witness stand during her testimony and abbreviating the hearing, were sufficient for this Court to conclude the defendant had been “denied a meaningful and reasonable opportunity to present his evidence and challenge [the plaintiffs] allegations, resulting in a denial of justice.” 2004 ND 76, ¶ 22, 678 N.W.2d 138.

[¶ 42] This Court has established the standard for reversals based on violations of due process attributable to conduct during the proceedings: “[W]hen the court employs a procedure which fails to afford a party a meaningful and reasonable opportunity to present evidence on the relevant issues, the court has abused its discretion and violated the party’s due process rights.” Gullickson, 2004 ND 76, ¶ 16, 678 N.W.2d 138. Here, Stewart was verbally attacked by the court. These verbal attacks illustrate that no amount of evidence or testimony could have resulted in an outcome favorable to Stewart. Furthermore, the conduct was so shocking to Stewart’s counsel that he felt continuing the trial would be detrimental or, at a minimum, fruitless.

[¶ 43] The conduct displayed here brings disrespect to the judiciary, destroys *219public confidence, and deprived Stewart of the fair hearing to which he was entitled. I would therefore reverse and grant a new hearing, based on the manner in which the hearing was conducted, or, at a minimum, reverse based on the lack of evidence to sustain the court’s findings.

[¶ 44] GERALD W. VANDE WALLE, C.J., concurs.