Curtiss v. Curtiss
2016 ND 197
| N.D. | 2016Background
- Spencer and Rebecca Curtiss are divorced parents of two minor children; Spencer initially had primary custody in Kansas but Rebecca obtained primary residential responsibility by stipulation after both parents moved to North Dakota and Spencer became incarcerated in 2011.
- The Amended Judgment awarded Rebecca primary residential responsibility and allowed Spencer supervised parenting time every other weekend at the state penitentiary; a Second Amended Judgment later modified child support.
- In July 2015 Spencer moved to enforce his visitation; in November 2015 Rebecca moved to suspend Spencer’s parenting time while he is incarcerated, asserting visits to prison were harmful to the children and their therapist supported suspension.
- The district court held a hearing on December 4, 2015; Spencer, incarcerated, had been permitted to appear via IVN/telephone if he arranged it, but he did not appear; Rebecca and the children’s therapist testified.
- On December 22, 2015 the district court entered a Third Amended Judgment: children need not visit Spencer while he is incarcerated; if visits occur they must be supervised by a professional; telephone and letters must be arranged and supervised through the children’s therapist. Spencer’s motion to reconsider was denied.
- Spencer appealed, asserting lack of jurisdiction, denial of his constitutional right to appear, failure to hold/rule on his motion, and inadequate findings that a material change and best-interest showing justified modifying visitation.
Issues
| Issue | Plaintiff's Argument (Spencer) | Defendant's Argument (Rebecca) | Held |
|---|---|---|---|
| Court jurisdiction over amendment | District court lacked jurisdiction over him while incarcerated | Court had personal jurisdiction because Spencer was incarcerated in the county and submitted to jurisdiction by moving to enforce visitation | Court: personal and subject-matter jurisdiction existed; Spencer waived any personal-jurisdiction defense |
| Right to appear / procedural due process | He had a constitutional right to appear; court should have ordered DOC to produce him or ensured IVN/phone appearance | Court offered IVN/telephone and placed responsibility on Spencer to arrange it; no duty to ensure presence | Court: no due-process violation; offering IVN/phone satisfied procedural rights and court need not compel DOC to produce him |
| Sufficiency of findings for modifying visitation (material change / best interests / endangerment) | Court failed to make specific findings that a material change occurred or show visitation would endanger children; lacked analysis for supervised or suspended visitation | Evidence (children reluctant; therapist involvement) supported restriction; court relied on record and hearing | Court: district court failed to make adequate Rule 52(a) findings on material change, best interests, and why supervised or suspended visitation was necessary; remanded for specific findings |
| Failure to address / rule on Spencer’s separate motion | No ruling/hearing on his motion; relief not addressed | Court treated motions together at scheduled hearing | Court: record unclear whether Spencer’s motion was decided; district court’s orders ambiguous; remand required (court declined to decide abuse of discretion on reconsideration) |
Key Cases Cited
- St. Claire v. St. Claire, 675 N.W.2d 175 (N.D. 2004) (procedural due process requires notice and meaningful opportunity to be heard; appearance by telephone/IVN can satisfy due process)
- Walbert v. Walbert, 567 N.W.2d 829 (N.D. 1997) (prisoner’s right to appear at civil proceedings is limited; court need not ensure presence)
- Hendrickson v. Hendrickson, 603 N.W.2d 896 (N.D. 2000) (visitation for noncustodial parent presumed beneficial; visitation withheld only when likely to endanger child’s physical or emotional health)
- Prchal v. Prchal, 795 N.W.2d 693 (N.D. 2011) (modification of parenting time requires material change and best-interest showing)
- Bredeson v. Mackey, 842 N.W.2d 860 (N.D. 2014) (parenting-time awards after initial custody governed by statutory standard requiring parenting time that benefits child unless visitation would endanger child)
- Keita v. Keita, 823 N.W.2d 726 (N.D. 2012) (district court must state factual findings with sufficient specificity to permit appellate review)
- Marquette v. Marquette, 719 N.W.2d 321 (N.D. 2006) (restrictions on visitation must be supported by a preponderance of evidence and detailed demonstration of likely harm)
- Votava v. Votava, 865 N.W.2d 821 (N.D. 2015) (court may not rely solely on child’s wishes when deciding visitation modification)