980 N.W.2d 40
N.D.2022Background
- Unmarried parents; child born 2019. Kershaw filed for primary residential responsibility two days after separation in August 2020; Finnson filed a domestic violence protection petition the next day.
- Initial temporary orders conflicted: one judge temporarily awarded custody to Kershaw in the custody case; another judge granted temporary custody to Finnson in the protection order (later amended).
- At a combined hearing, Judge McCarthy found Kershaw had engaged in domestic violence and issued a six‑month protection order granting temporary custody to Finnson; the protection order proceeding and custody interim proceedings were considered together.
- Judge Hager presided over a two‑day trial in August 2021; he admitted testimony including a private investigator called after Finnson rested, and ultimately awarded primary residential responsibility to Kershaw and parenting time to Finnson (every other weekend plus one additional week per summer month).
- Finnson appealed, arguing (1) improper cross‑examination and surprise rebuttal witness, (2) erroneous custody findings including mishandling of the domestic‑violence finding and adoption of proposed findings, (3) inadequate/reasoning‑less parenting time award, and (4) violation of Rule 63 because the judge did not certify familiarity with the record. The Supreme Court affirmed.
Issues
| Issue | Kershaw's Argument | Finnson's Argument | Held |
|---|---|---|---|
| Evidentiary: cross beyond scope & undisclosed rebuttal PI | Cross was permissible; PI testimony was legitimate rebuttal | Cross went beyond scope to manufacture a surprise rebuttal witness; unfair surprise and should have warranted continuance or exclusion | No abuse of discretion: Finnson raised some objections but not specific ones to the rebuttal line or a continuance; appellate relief requires preserved, specific objection |
| Domestic violence finding & presumption under factor j | No credible evidence in this custody trial to trigger the statutory presumption | Prior protection‑order finding required the court to consider or apply the presumption; district court failed to give proper effect to the prior finding | Affirmed: Judge Hager took judicial notice but found no credible evidence in this record to trigger the presumption; court distinguished Wessman and made specific findings on the issue |
| Adoption of proposed findings / factual inaccuracies | Adoption of proposed findings was proper where findings reflect credibility determinations and evidence | Court uncritically adopted Kershaw’s proposed findings; several findings contradicted the transcript and records, requiring reversal | Adoption discouraged but not reversible per se; despite some inconsistencies, findings were not clearly erroneous given credibility determinations |
| Parenting time (summer) adequacy | Opposed extended summer time; recommended very limited supervised time and conditions | Award of only one additional week per summer month is inadequate and unreasoned; Dyle requires explanation when denying extended summer time | Affirmed: court awarded one extra week per month in summer, addressed Kershaw’s restrictive proposals, and its parenting‑time decision was not clearly erroneous |
| Rule 63 judge familiarity / due process | Hager was the assigned trial judge who presided over the entire trial; no Rule 63 certification required | Judge Hager erred by not certifying familiarity with prior interim/protection proceedings under Rule 63 | Affirmed: Rule 63 applies to successor judges who take over incomplete hearings; Hager was not a successor and presided over the trial, so no certification was required |
Key Cases Cited
- State v. Peltier, 2016 ND 75, 878 N.W.2d 68 (discretionary evidentiary rulings reviewed for abuse of discretion)
- May v. Sprynczynatyk, 2005 ND 76, 695 N.W.2d 196 (must make timely, specific objections to preserve evidentiary issues)
- Command Ctr., Inc. v. Renewable Res., LLC, 2021 ND 59, 956 N.W.2d 755 (Rule 103 preservation requirement and review of evidence exclusion)
- Iakel‑Garcia v. Anderson, 2021 ND 210, 966 N.W.2d 892 (custody determinations are findings of fact reviewed for clear error)
- Vetter v. Vetter, 2020 ND 40, 938 N.W.2d 417 (standard for reviewing findings of fact in custody matters)
- Boldt v. Boldt, 2021 ND 213, 966 N.W.2d 897 (best‑interests standard for primary residential responsibility)
- Wessman v. Wessman, 2008 ND 62, 747 N.W.2d 85 (prior protection‑order findings must be specifically addressed in later custody proceedings)
- Estate of Albrecht, 2020 ND 27, 938 N.W.2d 151 (court should not adopt proposed findings wholesale; adopted findings must adequately explain rationale)
- In re M.B., 2006 ND 19, 709 N.W.2d 11 (adoption of proposed findings not reversible per se if supported)
- Dyle v. Dyle, 2012 ND 248, 825 N.W.2d 245 (vacation/summer parenting time: trial court must explain denial of extended summer parenting time)
- Taylor v. Taylor, 2022 ND 39, 970 N.W.2d 209 (parenting‑time determinations are findings of fact reviewed for clear error)
- Kautzman v. Kautzman, 2003 ND 140, 668 N.W.2d 59 (Rule 63 applies when a judge begins but does not complete a hearing)
- Weigel v. Weigel, 1999 ND 55, 591 N.W.2d 123 (if successor judge cannot familiarize with record, new hearing is appropriate)