Interest of R.W.B.C.
2017 ND 144
| N.D. | 2017Background
- Parents Richard Colling and Adrienne Behrens are the unmarried parents of R.W.B.C., born 2013; custody litigation began in 2014 after allegations by both parents of drug use and domestic abuse.
- An interim order initially awarded temporary custody to Colling; evidence at that stage included that the child was born with methamphetamine in his system.
- A two-day bench trial occurred in June 2016; the district court ruled that only one best-interests factor under N.D.C.C. § 14-09-06.2 favored Behrens and the remaining factors favored neither parent, and awarded primary residential responsibility to Behrens.
- The district court credited Behrens’ testimony, found Colling not credible, and found Behrens had undergone significant addiction treatment and remained sober.
- Colling appealed, challenging district-court findings as clearly erroneous for factors (j) (domestic violence), (d) (home stability/support), and (f) (moral fitness), and claiming the judge should have disqualified himself for prior involvement in a case involving Behrens.
- The Supreme Court reviewed factual findings under the clearly erroneous standard and considered whether judicial disqualification was required under the Code of Judicial Conduct.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether district court clearly erred finding no domestic violence (factor j) | Colling: Three incidents occurred, including one with a guilty plea by Behrens; plea should support finding of domestic violence | Behrens: Denied incidents; plea was to move on and evidence Colling submitted was staged; credibility favors Behrens | Affirmed: Court did not clearly err; record supports finding no domestic violence and plea did not compel contrary finding on these facts (dominant factor considered) |
| Whether court erred on home-stability/continuity (factor d) | Colling: His immediate family lives nearby and provides support; court overlooked this | Behrens: Her family provides greater, more stable support and continuity | Affirmed: Court reasonably found factor (d) favored Behrens based on greater family support; record supports findings |
| Whether court erred on moral fitness (factor f) | Colling: Past convictions and conduct weigh against Behrens | Behrens: Has been rehabilitated since convictions; present fitness adequate | Affirmed: Court reasonably found factor (f) favored neither parent given rehabilitation evidence |
| Whether judge should have disqualified under Rule 2.11(A)(1) | Colling: Judge had prior involvement in a case with Behrens and made minor name errors; impartiality might be questioned | Behrens: No extrajudicial knowledge used; prior case alone doesn't require disqualification; remedy was available earlier by change of judge statute | Affirmed: No mandatory disqualification; no evidence judge relied on extrajudicial facts and parties could have sought judge change earlier |
Key Cases Cited
- Dieterle v. Dieterle, 830 N.W.2d 571 (N.D. 2013) (standard of review for custody factual findings)
- Wolt v. Wolt, 778 N.W.2d 786 (N.D. 2010) (definition of clearly erroneous)
- O'Hara v. Schneider, 890 N.W.2d 831 (N.D. 2017) (domestic violence is dominant factor when alleged)
- Morris v. Moller, 815 N.W.2d 266 (N.D. 2012) (trial court not bound by parenting investigator recommendations)