Alvarez v. Carlson
474 N.W.2d 79
N.D.
1991
Check Treatment

*1 79 782, Bedonie, the Sixth Amendment nor 913 F.2d Neither NDCC v. United States requires per- 29-26-18 that a defendant be (10th Cir.1990). rea- The trial court 802 person mitted to cross-examine the of go “To into the life histories both soned: parole probation prepares report. or See along lines of the incidents these and all People York, v. State New Williams would of may may or not have occurred 241, 251-252, 1079, 1085, 337 U.S. 69 S.Ct. confusing. And I have the utterly issue be (1949); Arbuckle, People 93 L.Ed. 1337 v. ordinarily between feeling that the balance 749, 778, 781, Cal.Rptr. 22 Cal.3d 150 587 prejudice and untoward probative value 220, (1978). P.2d 223 See also Williams v. [Tjhese exclusion.... likewise mandate Oklahoma, 576, 584, State 358 U.S. 79 time, unnecessary only up take matters not (1959). Also, S.Ct. 3 L.Ed.2d 516 jury....” confuse if not mislead the copy Moran received a of the letter. He its discretion The trial court did not abuse subpoena probation did not officer to disallowing this evidence. witness, appear request as a nor did he argues hearing proba- Moran also that the trial continuance of the until the present. could “In sentencing tion officer be our ad- court abused its discretion versary system necessary if a witness is years Penitentiary. him to two at the State proper presentation of a defendant’s case possi is the widest judge “A trial allowed then the defendant should see that fixing range discretion in criminal ble Henderson, is called.” v. witness State Warmsbecker, 466 sentences.” State v. 700, (N.D.1968). 156 N.W.2d 707 This (N.D.1991). We have no N.W.2d given full record shows Moran was power to review the discretion of a sentenc to, did, opportunity present evidence ing fixing imprisonment court in a term challenging probation officer’s state- statute; range authorized within proba- ment that Moran did not take “his rather, determining confined to we are seriously....” conclude that Mor- We judge acted within the limits whether trial court an has not established that the statute, prescribed by substantially re impermissible relied on an factor sen- impermissible lied on an factor. v. State tencing imprisonment. him to (N.D.1990). Ennis, 464 N.W.2d The conviction and sentence are af- relied Moran contends that the trial court firmed. impermissible on an factor in this case. probation a letter Moran’s officer wrote ERICKSTAD, C.J., and VANDE advising to the court that he would be LEVINE, JJ., WALLE, GIERKE and appear sentencing hearing unable at the concur. attending he would a funeral on because be probation day. The officer wrote that probation “has not taken his seri- Moran

ously imposed by the Court” and recom-

mended that Moran “be sentenced to the Penitentiary por-

North Dakota State as a ALVAREZ, Jane Jane f/k/a punishment.” sentencing tion of his At the Carlson, Pecka, Mary Jane f/k/a hearing, the trial court denied Moran’s mo- Appellant, Plaintiff and tion that the letter be stricken ultimately record. The trial court deter- CARLSON, Robert Defendant mined in need of correction- that Moran “is Appellee. effectively al treatment which can most be provided placed if he is in total confine- Civ. No. 900248. argues ment.” Moran that the trial court’s Supreme of North Dakota. Court acceptance and the letter consideration of Aug. right violated his to confront the witnesses 29-01-06(3), and, against him under NDCC

thus, impermissi- constituted reliance on an sentencing. disagree.

ble factor in *2 (argued), Legal

Duane E. Houdek Assist- Dakota, Bismarck, plain- ance North appellant. tiff and Kropp (argued), Jamestown, Lawrence P. appellee. for defendant and GIERKE, Justice. appealed Jane Alvarez from an judgment

amended district County, dated May Stutsman modifying provi- and visitation of a sions divorce decree entered family court in State April of Hawaii on and amended June 1988. We affirm the except amended the award of which reverse. we given “primary physi- was married in 1979 at Christine. Mary and Steven were custody.” expressly grant- cal Steven was Jamestown, Dakota. Daniel North care, custody and control was born ed “the absolute year and Christine bom that March, 1987, parties’ while minor children from June 1st February In *3 military training August attending year with each until 20th of each was of Steven Mississippi, judgment provid- in year.” Air National Guard The amended also the live in party and Daniel to for dur- Mary took Christine ed reasonable visitation each in Hilo, Mary filed for divorce the period. Hawaii. time From ing their noncustodial A decree court of Hawaii. divorce family judgment Mary has filed this the amended 1988, 27, awarding April entered on appeal. giving her Mary a from Steven and divorce party requests When a a modifi original de- The custody of both children. original custody the cation of an award limited hours of gave specified cree Steven there has must determine whether court Tuesdays children on with the visitation significant change circumstances a of been no over- Saturdays, provided for and If there since the award. 1988, During June the night visitation. significant change of circum has been a court extended Steven’s visitation Hawaii stances, must then determine the court again provide did not privileges, but changes those are such that the whether overnight visitation. interests of the children would be best exercising Saturday While change custody. Wright in by a served 1988, the children July on Steven took (N.D.1988). The Wright, 431 N.W.2d 301 place, eventually place to and moved determination of whether there has court’s settling in had no knowl- Colorado. change significant of circumstances been the were edge and children where Steven original warranting a modification later, until, residing nine months the about custody question is a of fact which award authorities discovered their Colorado appeal it overturned on unless is will not be investigating a traffic whereabouts while 52(a), clearly erroneous under Rule in which Steven was involved. accident Bank, 443 Bank v. Von N.D.R.Civ.P. Von Mary in (N.D.1989). The children were returned to 618 N.W.2d she then returned to reside April and finding court’s the The trial Jamestown, them in North Dakota. with in this case have “substan circumstances Hawaii, he was extradited to where Steven drastically, changed since the tially, and pled charge to the of custodial no contest de parties’ Hawaiian divorce entry of the degree. in the first Steven interference in supported by the evidence cree” is was sentenced to six months incarceration clearly erroneous. When record and is days suspended, 30 ordered to with all but custo family court established the Hawaii restitution, placed proba- pay Mary and on living in parties were dy and visitation years. for five tion living in is now Colorado Hawaii. Steven In filed a motion November living in the children are and and County the district court of Stutsman correctly The trial court North Dakota. jurisdiction requesting the court to assume change this of circum concluded that Custody Jurisdic- under the Uniform Child stances, itself, di renders Hawaiian Act, 14-14, N.D.C.C., amend Ch. and to concerning Steven’s visita decree vorce decree of the Hawaii the amended divorce pos longer practical” because tions “no family provide to that Steven have elimi weekly visitations has been sibility of custody of and Daniel with rea- Christine addition, original custo In since the nated. rights Mary. sonable visitation entered, Mary, concedes dy decree was any to have she does not want Steven May the district court en- On children, uncoop been judgment modifying the contact with tered an amended facilitating Steven’s visitation erative divorce decree. The amended Hawaiian is sub privileges. conclude that there provided parties We judgment that the would support the court’s “joint legal custody” Daniel and stantial evidence have significant finding that there has been when those decisions are made. do not We change judgment since the construe the circumstances that manner. custody specifically The trial court award. decreed Ste- custody ven’s rights visitation entitled sig- was a Having determined that there care, custody him to the “absolute circumstances, the change trial nificant control” the children from June required to court was then determine August year. 20 of each construe changed circumstances war- whether those giving Mary, by implication, ranted, in and Daniel’s best Christine inter- care, custody the absolute and control of ests, a modification remaining days the children for the of each decree. Thus, year. legal custody share *4 Mary The record that neither reveals nor year, during the children the each with has exemplary. conduct been Steven’s having decision-making sole authority Mary that she concedes has continued to physical custody when he or she has in hamper exercising Steven his visitation children. We conclude that trial the privileges, and she testified that she will court’s modification of the continue to resist visitation Steven. Al- type decree include “joint legal to this though alleges she that has Steven sexual- custody” arrangement clearly is not erro- children, ly abused the she admits that neous. prior leaving to in she Steven left the part judgment modify As of its him children alone with for a week while ing original the decree the district court trip Kentucky. a Mary she took to When gave mother, pater Steven's the children’s residing Hawaii, and the children were grandmother, nal a weekend visitation each knowingly by Steven violated the law kid- during month September the months of napping secreting the children and them May. through We conclude that the court many from their mother months. awarding grandparent erred in by particu- While this conduct requesting because there was no motion it. larly egregious trial undoubtedly the court considered all of the in reaching 14-09-05.1, N.D.C.C., factors its Section authorizes determination, court, circumstances, and we do not substitute the under certain to our judgment judge for the trial grandparents who has award the of a minor child opportunity had an to parties the rights. provi- observe reasonable visitation That and the provides witnesses. conclude that sion part: the relevant trial court’s determination the changed “If any district court of this state has circumstances warranted a modification of jurisdiction placement over the custodial original clearly the decree is not erroneous. of the minor by child or children involved any prior proceedings, virtue Mary complains that there is no basis for rights by may conferred this section be finding the trial joint court’s that a custody through prior enforced motion under the arrangement inwas the best interests of proceeding. If juris- no district court has split children. concedes diction, a to proceeding grandpa- enforce alternating custody per is not se unreason- rights brought rental must be civil Her argument appears able. to be that action and county venued in the of resi- get because she and along Steven do not dence of the minor children. The custo- joint legal custody arrangement would not parent dial must be named as defen- work if agreement both must reach dant.” on decisions concerning the children. We

believe that Although misconstrued the paternal grand- children’s trial judgment. court’s She did not ask for mother testified hearing, at the did she not clarification judgment, apparent- requesting file a motion the court to award ly requires assumes that it Steven and her her privileges. visitation The statute envi- jointly day-to-day make decisions rights granted about sions enforcement of under the childrens’ irrespective lives provision by which the filing motion or of a parent happens physical to have custody separate action if does not have By prior proceeding. under jurisdiction request Romsos, visita- Stanley

requiring the ROMSOS and Hazel action, separate or a through a motion Appellants, Plaintiffs and rights of the custo- protects the the statute party interested parent or other dial request, giving them to the may be adverse SORBEN, Duane d.b.a. Duane’s objection opportunity to voice notice and an Pumping, Defendant and request- request. a motion to the Absent Appellee. court should privileges, the ing visitation paternal grandmoth- have awarded the not Civ. No. 910025. under the statute.

er visitation Supreme Court of North Dakota. should not Mary asserts that Steven modification of the entitled to a be Aug. fully complied decree he has because the record decree. On with perhaps neither appears us it

before fully complied

party has *5 Nevertheless,

decree. impracti provisions

and visitation became changed when the

cal to enforce Assuming residences. that Steven

their complied fully not

decree, that under these do not believe we noncompliance precludes his

circumstances award.

modification ex-

The amended is affirmed grandparent

cept for the award of visita-

tion, which is reversed.

ERICKSTAD, C.J., and MESCHKE WALLE, JJ., concur.

VANDE

LEVINE, Justice, concurring in result. any sug- myself

I to distance from write here

gestion party’s that each misconduct deserving equal

is somehow and therefore disapproval. parallel I find no equal felonious

between the father’s abduction secreting for nine

the children and his them happen- he was foiled

months until his in a traffic acci-

stance of involvement

dent, to- pesky the mother’s attitude ranged which

ward the father’s length phone limiting calls to downright

ten minutes each to obfuscation. the trial court

Because I am satisfied that par- equate culpability

did

ties, affirming trial court’s join I exception

decision with

visitation.