806 N.W.2d 183
N.D.2011Background
- Sorenson and Slater, non-married parents, had a child in May 2008 and competed for custody.
- In November 2008, the child suffered a broken clavicle; parties disputed whether injury occurred during Sorenson’s weekend visitation.
- During the criminal investigation, both submitted to polygraph examinations; no charges filed, social services recommended parenting classes.
- In September 2009, district court awarded primary custody to Sorenson after a two-day trial; polygraph results were not admitted at that trial.
- On remand, district court held a supplemental hearing, admitted additional evidence on the clavicle incident, and relied on polygraph results to find domestic violence and award Slater primary residential responsibility.
- Sorenson appeals, arguing the remand scope was exceeded and polygraph evidence was improperly admitted and relied upon; the Supreme Court agrees and reverses for further proceedings.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether remand allowed new evidence on issues beyond two erroneous findings. | Sorenson contends remand limited to (b)-(c). | Slater argues broader remand permitted additional evidence. | No abuse of discretion; remand allowed broader evidence and findings. |
| Whether polygraph results could be admitted and relied upon to prove domestic violence. | Sorenson argues polygraph evidence was inadmissible and unreliable. | Slater relied on polygraph results to support DV finding. | Polygraph evidence improperly admitted and relied upon; reversible error. |
| Whether the district court properly foundationally established reliability of polygraph evidence. | Sorenson asserts lack of foundation and hearsay problems. | Slater contends evidence was admissible as ancillary and bench-trial context. | Foundational and hearsay problems require reversal on this point. |
Key Cases Cited
- Weatherspoon v. State, 1998 ND 148 (ND, 1998) (polygraph evidence generally unreliable; admissibility requires foundation)
- Healy v. Healy, 397 N.W.2d 71 (N.D. 1986) (polygraph evidence inadmissible absent stipulation; routine caution for reliability)
- In re B.B., 2007 ND 115 (ND, 2007) (bench trial; admission of incompetent evidence does not always require reversal unless it influenced findings)
- Livinggood v. Balsdon, 2006 ND 215 (ND, 2006) (remand discretionary on whether to allow additional evidence)
- Frisk v. Frisk, 2006 ND 165 (ND, 2006) (remand procedure and scope; evidence after remand within district court discretion)
- Kautzman v. Kautzman, 2000 ND 116 (ND, 2000) (remand for redetermination; district court discretion to receive additional evidence)