Berg v. Berg

equity of Kevin’s is from the tools with living,

which he is able to earn a the Court equitable

finds this to be an distribution.” support

There is evidence in the record to therefore, findings,

the trial court’s property division is not errone-

ous. The judgment is affirmed. KAPSNER, CAROL RONNING MARING,

MARY MUEHLEN NEUMANN, JJ.,

WILLIAM A. concur. result,

I concur DALE V.

SANDSTROM.

2002 ND 69 BERG, L. Plaintiff Appellant, BERG,

Brenda M. Defendant Appellee.

No. 20000355.

Supreme Court of North Dakota.

April directive that

Berg. hold the court’s children’s health Berg pay for the Weston in accordance coverage is not insurance further hold statutory law. We with our its discretion the trial court did abuse attorney fees to Weston in award of its order appeal. The Berg prior for the is affirmed amending the divorce decree and the case is part, reversed part, instruc- the trial court with remanded to Brenda its order to direct tions to amend insurance for pay for healthcare Berg for Berg’s request the children. Weston is remanded attorney appeal fees on this trial court for consideration.

I. Facts Berg were Weston and Brenda [¶ 2] two children of married in 1990 and have A marriage. judgment was entered their January by the district court marriage, from which Wes- dissolving the Berg appealed. Many facts relevant ton this case are set forth this Court’s resolving prior appeal decision (Berg Berg, 2000 ND 606 N.W.2d 895 I), except here and will not be reiterated necessary explain the resolution I, appeal. the issues in this part decree in Court affirmed the divorce remanded the case to the trial the is- proceedings further to address Schmitz, Schmidt, Moench & William D. Berg and the sues of visitation for Brenda N.D., Schmidt, Bismarck, plaintiff for the providing of healthcare insurance appellant. hearing, After a the district children. Firm, Oliver, Vogel Law Leslie Bakken supplemental findings court entered Bismarck, N.D., appel- for defendant and judgment. original amended the divorce lee. II. Visitation WALLE, VANDE Chief Justice. original judgment divorce custody awarded of the two Berg appealed from an the trial court decree, after children to Weston amending original divorce vio- Berg perpetrated domestic following prior remand on a this Court’s during marriage. The court findings the trial court’s lence appeal. We hold fact, Berg unsupervised visita- supplemented, are not awarded tion with the children and Weston they support the court’s erroneous of the divorce from that unsupervised appealed visitation to award I, In Berg decree. this Court reversed the vised visitation to Brenda is clearly unsupervised award of visitation and re- erroneous. The trial court’s decision on findings, explaining: manded for additional a finding of fact that wül not be reversed on appeal unless it is clearly When the court finds domestic vio- Kluck, erroneous. Kluck v. occurred, presump- lence has there is a ¶ 24, 561 N.W.2d 263. A finding of fact is only supervised tion visitation will be only erroneous if it is induced allowed: law, erroneous view of the if no evidence If the court finds that a has it, if, exists to support upon review of perpetrated domestic violence and evidence, the entire we are left with a that does not have custody, definite and firm conviction that a mistake and there exists one incident of do- has been made. v. Schiff, 2000 ND Schiff mestic violence which resulted in seri- 113, 10, 611 191. bodily injury ous or involved the use dangerous weapon of a or there exists [¶ 5] The trial court made the fol a pattern of domestic violence within lowing findings of fact relevant to the visi proximate pro- reasonable time tation issue: ceeding, the court shall allow su- Berg] [Brenda has received hours of 22½ pervised child visitation par- with that professional therapeutic counseling, ent unless there a showing by clear therein addressing Berg’s] [Brenda in- convincing and unsuper- evidence that appropriate conduct towards [Weston vised visitation endanger would not Berg] and towards the minor chü- child’s physical or emotional .... [S]ubsequent dren [Brenda health. Berg’s] therapeutic plan, treatment she 14-05-22(3). engaged has not exemplified nor unmanaged anger impulsive and behav- The trial court any does outline clear ior prior demonstrated to the parties’ and convincing presented by evidence separation. nor does the court set Berg] engaged [Brenda in unsuper- forth the factors it considered in reach- chüdren, vised visitation with the minor ing its conclusion.... the same consistent with the stipulated findings The trial court’s must be suf- parties, interim order of the and further ficiently specific apprise and detañed to that Berg] [Brenda has been observed a reviewing court of the reasoning and by a professional mental health during rationale for the decision.... hours of interaction between [Bren- 15½ We reverse the award of unsupervised chüdren, da Berg] and the minor and visitation and remand for additional that said observations did not disclose findings. identify nor any unmanaged outbursts of 36, ¶¶8-11, Berg, 2000 ND anger impulsive nor behavior on the Berg]. [Brenda remand, Upon the district argu- [I]n absence of confrontational supplemental findings entered fact Berg] ments between [Weston and continued allowing Berg], its directive Bren Berg] [Brenda [Brenda has ex- da Berg unsupervised love, genuine visitation with the hibited concern and paren- children. appeal, On this tal ability to meet the needs of the minor asserts the trial court’s award of unsuper- children. admissions to her about her own arguments made confrontational

[T]he marriage, cen- Berg] Berg] improper stating conduct in the [Brenda [Weston finances, me of residence “she told about that situation where upon place tered farming, Berg’s] interest ... seat sitting [Weston she was the back by vir- have removed all of which been reached around and I believe knocked she parties dur- separation glasses tue talked about Weston’s off. .She and that litigation, course of this ing the arguments swearing, yelling, her in together profes- with the separation said kind of conduct.” Mueller testified that treat- therapeutic counseling and sional Brenda Berg she made understand she Berg] prevented have [Brenda ment of look at and her role in needed to herself any further abusive incidents. causing marriage a deterioration of

and to understand her behavior. Mueller through therapy testified that Brenda in the presented all evidence [UJpon has “learned stress Berg a ton about man- herein, trial finds course of the Court agement.” Mueller’s conclusions are more foregoing clear and that the constitutes fully summary question unsupervised whether visitation provide for the children’s health insurance by the chil- endanger “only if coverage such coverage was avail- physical dren’s or emotional health. her through employer able at a cost of less than percent Berg, of her income.” five The primary purpose ¶36, 12, We N.W.2d 895. promote visitation is to interests best directive, reversed it explaining that children, par not the of the wishes was not in accord with our re- statutory Stoppler Stoppler, ND ents. ¶ quirements: only is visita Not presumed tion to be the best interest of 14-09-08.10, § every N.D.C.C. Under child, it is a child. right Id. child support entered in this state Furthermore, a can parent noncustodial be coverage health must address insurance if deprived only visitation is for the child.... likely endanger or physical child’s essentially This statute creates a three- 14-05-22(2), emotional needs. Section step process determining for who should N.D.C.C.; Ackerman, Ackerman v. responsible be health insurance cov- 135, 13, 596 N.W.2d 332.1 Section First, the erage. parent custodial must 14-05-22(3), N.D.C.C., alter, does not but coverage be ordered secure if it is recognizes principles. rather these The at no or “available nominal cost.” that, many unsuper reveals after evidence 14-09-08.10(2). not, § If N.D.C.C. vised visits between Brenda and her 14-09-08.10(1) requires these children have benefitted parent coverage provide noncustodial relationship with their mother. There if it at or is “available reasonable cost they evidence either is no have suffered becomes available at reasonable cost.” or physical emotional harm as result of If subsection is unsupervised applicable, conclude neither visitations. We the trial court’s there clear and trial court has discretion to make other is special appears be used 1. The concurrence to blur the visitation to to force a court to struc- according right between the with ture to the distinction to visitation the visitation sole However, the structure of that visitation. wishes noncustodial even special though may contrary wishes assume the concurrence does not in- those be tend the best interests of the child. it Upon foregoing, the order insur- is the child’s health provisions for pro- Berg] shall [Brenda costs. or health care ance satisfactory health cover- vide insurance minor children when said age for the 14-09-08.15, legis- In N.D.C.C. through available is coverage “reasonable cost” lature defined at a cost. employment reasonable [her] support in child orders: health insurance shall available Until the same chapter, purposes For of this health con- Berg], Berg] shall [Brenda [Weston reasonable insurance is considered coverage for tinue health insurance his obligor cost if it available said minor children. an through employer group basis or A union, of service deliv- regardless

or ery mechanism. appeal asserts [¶ 12] On findings are the trial court’s on this issue legislature statutorily The has thus de- not and its order does erroneous insurance termined health available statutory comport requirements. with union, through group employer, agree. By requir- cost.” plan “reasonable responsible to be ing undisputed It is that Wes premi- the children’s health insurance ton not have insurance Berg does health through em- ums if available her “available at no or nominal cost.” at a cost” to ex- ployer “reasonable not found that as a district court income, five of her percent ceed part-time employee, does have medical contrary court has a restriction imposed through available her insurance benefits to Accordingly, the statutory to definition. clearly er her That is employer. judgment provision reverse re- the supported by the evi roneous and is not garding coverage insurance health dence. upon remand direct court to order an hear- show cause for coverage

health insurance the chil- 18, 1999, ing May Berg on testified Brenda in with the statutes and dren accordance had insurance available she health benefits opinion. this family plan to her a which would under ¶¶ In a post-hearing cover the children. 13,15. Berg, at brief, that, stated as Brenda remand, Upon 11] district court [¶ benefits, her insurance is employee health following relevant supplemen- entered her, including coverage available to for findings of tal fact: approximately two at a cost of obligor and noncusto- Berg], [Brenda month. Brenda has per $222.41 parent, employed dial less than full in failed this Court to evidence to direct nurse, a registered time as and as a refuting foregoing evidence record part-time employee does not have medi- coverage health for she has insurance through cal insurance benefits her em- through available to her her children ployment. employer. Furthermore, does the statute requirement have to not that Brenda Berg] [Weston does available restrict parent, pay him and maintained insur- for the has medical ance has health insurance to instances coverage which included children’s her parties. through minor when it is available her children of § employment. appeal, Under 14-09- he requests attorney N.D.C.C. fees on 08.15, Berg is appeal. deemed have this her health insurance available to for the such

children at reasonable cost if insur- A to her group ance is available “on a basis In Jorgenson [¶ v. Ratajczak, 18] union, through employer regard- or ¶ 16, this delivery less of service mechanism.” Court, Bakes, quoting Bakes v. demonstrating There is no evidence health (N.D.1995), outlined standard insurance is not available to Brenda attorney for awarding fees in divorce ac group or through employer. on basis her tions: We, therefore, conclude the district court’s “The trial court authority has in a findings on this issue are errone- attorney divorce case award fees for on ous. reverse court’s order proceedings the trial upon court and with issue remand instructions the appeal. 14-05-23. The requiring court enter an order principal guiding standards an award of Berg to health coverage furnish insurance attorney fees action divorce are one If that children. order results spouse’s need and ability the other’s support pur- reduction of income child pay. should consider the poses, the trial court should make the ap- property party, owned each their rel- adjustment propriate support the child incomes, ative property whether is liquid ordered pay. See N.D. assets, or fixed and whether the action 75-02-04.1-01(7)(d). Admin. Code of either party unreasonably in-

creased time spent case. We will not overturn an award of attorney B fees unless the trial court abused its brief, appellate his discretion.” Berg requests of past pre reimbursement (Citations omitted). original In the di- paid miums him for the children’s proceedings vorce the trial court awarded coverage. health insurance This Court attorney Berg. to fees Brenda While the record, has found no in indication and judgment in was reversed and the Berg Weston has not directed this Court for case remanded further proceedings as any evidence, showing to record that he a Berg’s appeal, origi- result of Weston requested the trial court to award him nal primarily divorce decree was affirmed. past reimbursement of health insurance circumstances, Under these conclude premiums. ruling We have found no on Weston Berg failed to demonstrate the this issue the trial court no evi district court abused its discretion in given dence the court was opportunity an attorney awarding him for fees in the $350 rule on particular to this We con issue. prior appeal. clude, therefore, Weston Berg has failed to preserve this issue on See appeal. Roise B Kurtz, 228, ¶ 5, Weston seeks an Berg [¶ 19] attorney appeal, award of fees on this un Attorney IV. Fees 14-05-22(5), § der which pro N.D.C.C. vides: Berg [¶ 17] Weston asserts district any custody proceeding

court abused its discretion in award- In or visitation ing attorney him in prior fees for the which a is found to have $350 violence, unnecessary” there excessive and because

perpetrated domestic Upon violence conduct. Berg’s litigious incident domestic exists one Weston bodily injury case, in serious in this includ- which resulted of the record review weap- a dangerous use of or involved the the financial circumstances ing pattern of domestic on or there exists and the court’s Weston parties proxi- a reasonable time violence within unreasonably for Berg responsible was costs, court proceeding, mate to the all increasing litigation expenses, we fees, fees, and ex- attorneys’ evaluation did not abuse its conclude the trial court must pert paid fees be witness fees. assessing discretion in costs and un- the domestic violence perpetrator of the trial court’s award of attor- upheld undue place an less those costs in Berg original ney fees hardship on that parent. financial upheld and have now the trial decree I, 895, 2000 Berg attorney court’s award of fees $350 ¶¶ 25, 26, this ND Court addressed prior appeal for the Weston ordering court issue of the trial have preference I. is to the trial court Our ad pay portion guardian attorney fees initially address the issue fees, fees, expert litem witness appeal gener- because the trial court is on Berg’s attorney fees: in a the rele- ally position weigh better 14-05-22(5) in- Although N.D.C.C. Zuger Zuger, factors. vant See vio- perpetrator dicates the of domestic 38, 563 N.W.2d 804. Conse- ordinarily responsible lence should we direct the district quently, remand fees, for costs we do not believe Berg’s request court to consider Weston autho- legislature intended statute to attorney under appeal fees opposing check” to rize “blank 14-05-22(5). party. court The trial is authorized if assess in a different manner costs V. Conclusion

assessing against perpetra- costs all tor of domestic violence would result opinion, accordance with this hardship.” “undue financial “Undue” unsupervised visita- the court’s award defined unwarranted.” “[e]xcessive tion for is affirmed. The (7th Dictionary Black’s Law Berg pay court’s directive Weston ed.1999). Accordingly, opposing if the coverage health insurance is re- children’s unreasonably increases party’s conduct and, remand, upon versed expenses litigation, resulting requiring instructed enter fees, excessive unwarranted costs pay for the children’s the court the apportion has discretion to coverage. health insurance The trial parties. costs and fees between the attorney court’s award of fees to Weston in expressly The trial court this case the in I affirmed. appeal 14-05-22(5), but considered N.D.C.C. Berg’s request attorney fees Bren- imposing liability upon concluded appeal on this is remanded to the district of the and fees da for all costs for consideration. court an undue hard- would create financial ship upon The trial expressly her. court FOUGHTY, D.J., [¶ 22] DONOVAN portion

found “that a substantial A. costs, fees, and MARY attorney court WILLIAM NEUMANN evaluation MARING, JJ., fees and witness ... were concur. expert fees MUEHLEN

907 FOUGHTY, Patrick, 23] DONOVAN JOHN stated in Patrick v. 17 Wis.2d KAPSNER, J., 434, D.J., sitting 439, 256, (1962): in of place 259 disqualified. ‘Minor children are entitled to the love and companionship par- of both SANDSTROM, Justice, in concurring ents possible insofar as this is the result. consistent with their welfare.’ I agree with result reached reason, For this privileges visitation by majority. separately I be- write granted to the parent non-custodial states, 9, majority at “The cause merely must not viewed as a privi- primary purpose promote of is to visitation lege parent, of that right but as a of best interests not the child which is not be subverted of the parents,” wishes and refers to visita- by 486, the custodian.” 80 Wis.2d at tion as “wish” of the noncustodial 259 at N.W.2d 529-30. parent. majority The misstates the public theory believe that that the policy this state as established non-custodial should have no le- ignores legislature and the constitutional gally right enforceable rep- of visitation rights parents.2 resents such a shift in policy in North question Dakota that the of whether or I it adopted not should be should be left Over ago, two decades when legislature. faced with proposition that noncustodi- Rizzo, Gardebring parents right al should have a to visita- (N.D.1978). Gardebring, After the North tion, this Court summarized its view the Legislature agreed Dakota with the importance of parent’s a noncustodial visi- Court’s importance view of the of a non- rights: tation parent’s custodial visitation rights and adoption theory that the 14-05-22(2), adopted N.D.C.C. which non-custodial parent should have no le- provides: gally enforceable of visitation After making custody, award represent major shift in policy shall, upon request of the noncus- policy this state. The that has been parent, grant rights todial such of visita- followed this state inis accord with tion as will enable child policy the Wisconsin Su- applied to maintain par- Marotz, preme Court in Marotz relationship ent-child that will be benefi- (1977). Wis.2d 259 N.W.2d 524 child, finds, cial unless the court “It is a fundamental principle a hearing, likely after state that visitation privileges, like endanger physical the child’s or emo- custodial rights, are created to pro- tional health. mote the best interests the child. Neblett,

Neblett v. 274 Wis. legislature’s This characterized the [sic], (1957). opinion As actions “consistent with our one, 2. majority In footnote the rights parent misconstrues the visitation of a noncustodial opinion desire,” concurring the content of this in the mere or as a "wish and the states separately I belongs only result. have written to set forth of to the visitation child. statutory and separate opinion constitutional of foundation This on the focuses constitu- parent's rights a noncustodial statutory rights visitation be- tional and of noncustodial recognize majority cause the fails parents to the visi- and not does examine the "structure rights parents, tation of to noncustodial refers of that visitation.” 908 Burich, parent noncustodial able the child v. 314 Burich

Gardebring.” relationship”). parent-child a (N.D.1981). to maintain 82, language The 87 N.W.2d 14-05-22(2) changed has of N.D.C.C. to The reference noncustodial case. since Burich or rights as “wishes” parents’ visitation in Muraskin v. Mu originated “desires” Gardebring, this Court [¶ 26] Since (N.D.1983). 332, raskin, N.W.2d 336 336 to his or her parent’s right articulated a lengthy litigation Muraskin involved visi grandparent context of children in the The custody rights. and visitation over relocation, tation, initial parent custodial following Florida mother had moved to determination, custody paternity determi divorce, court and she asked district See, nation, visitation enforcement. allow modify “to the summer visitation to ¶¶ 115, 10, 8, Berg, 1999 ND e.g., v. Hoff Florida, to be in her home in the visitation visitation); (grandparent 285 595 N.W.2d Id. in the Forks area.” rather than Grand ¶ Peterson, 14, 12, ND 1997 Peterson v. district court’s discussing at visitation); (grandparent 826 559 N.W.2d that the order should visitation 748, Pailing, v. 318 N.W.2d Mansukhani the children’s interest changed because of (N.D.1982) visitation); (grandparent 750-51 heritage family background,” in “their Olson, 120, ¶ 4, v. 2000 611 Olson ND stated: (custodial relocation); parent N.W.2d 892 express If the children were asked ¶ Hanson, 151, 10, 1997 ND 567 Hanson v. regarding visitation with wish or desire (custodial relocation); parent N.W.2d 216 parents, the location or reloca- divorced Ackerman, 135, ND v. 1999 Ackerman play a parent tion of the divorced could ¶ (custodial 13, 596 332 re N.W.2d if role in the child’s decision dominant D.M.G., location); v. Egan N.W.2d given child’s A weight is wishes. (N.D.1982) and visi (paternity 119-20 relocate an area divorced could tation); S.L.N., v. 2001 ND K.L.G. merely great interest entice ¶ (enforcement 11, 622 of visi N.W.2d that express wish to visit at child to tation); 71, 73 Healy Healy, v. 397 N.W.2d location. (enforcement visitation); (N.D.1986); the interrelation or connec- Whatever Bergstrom Bergstrom, v. may place change tion visitation or its visitation). (N.D.1982) (enforcement of heritage” was not have to “interest it established. Neither is obvious. setting Yet often when forth custody pertaining In matters ap- purpose rights, visitation this Court rights, pri we are concerned parent’s relegate a noncustodial pears marily with the best interests interest in visitation to the status of and not or de children with wishes See, e.g., desire. Stoppler mere wish or either Burich v. Bur parent. ¶ sires of 148, 14, Stoppler, (N.D.1981). ich, 314 N.W.2d 82 Ackerman, 142; Ackerman 135, 13, Any 596 N.W.2d 332. reference Id. citation to Burich at 336. Court’s parent’s to a interest visita- noncustodial struc supports the statement when visitation, contrary is guided by tion a “wish” “desire” turing the Court policy child, public this state’s that noncustodial but best interests of “rights of visitation.” See “wishes or desires parents language regarding have 14-05-22(2) (“the shall, solely found in Muras parent” either Burich, 87; at kin. upon request parent, See 86 - Muraskin, en- 336 N.W.2d at 336. grant rights such of visitation will

909 ¶ (“Parental time, 12, phrase the from Mu- Over 559 N.W.2d 826 choices phrase children, mskin has been altered the used about the upbringing of like those majority, primary purpose “the of by life, about marriage family among are promote visitation is to the best interests those rights associational United pare of the wishes Supreme States has Court ranked basic ‘of form, phrase In its current nts.”3 importance society,’ in our and are ‘shel- attempt can be read as an to reduce a by tered the Fourteenth Amendment right parent’s noncustodial against state’s usurpa- unwarranted ” mere or dream. Once the law on a hope tion, (internal disregard, disrespect.’ statute, subject by is declared common law omitted)). citations The Supreme Court modify operate rights cannot creat parents described the interest See, e.g., ed statute. N.D.C.C. 1 - 01- care, custody, and control of their children 205, 06; M.C.H., ¶9, re 2001 ND 637 as “perhaps oldest the fundamental 678; v. N.W.2d North Dakota Effertz liberty recognized by interests this Court.” Bureau, 223, Comp. Workers’ 481 N.W.2d Troxel, 65, 2054, 120 at S.Ct. 147 L.Ed.2d (N.D.1992). Any attempt 225 to minimize 49. of a interest noncustodial Supreme United States “rights be in clear conflict with Court, Granville, in Troxel v. upon relied expressed by legislature. visitation” precedent” outlining “extensive when 14-05-22(2). rights parents fundamental chil their II Troxel, 65-66, dren. at 530 120 U.S. S.Ct. 2054, 147 (citing Washington L.Ed.2d 49 v. par- Not 702, 2258, 521 Glucksberg, U.S. 117 S.Ct. right grounded ent’s to visitation (1997); 138 L.Ed.2d 772 Santosky v. public policy legislature, our adopted Kramer, 745, 1388, 455 U.S. 102 71 but S.Ct. Supreme both United States Court (1982); J.R., L.Ed.2d 599 Parham v. 442 parent’s and this have stated that a 584, 2493, U.S. 99 S.Ct. 61 101 right companionship with his or L.Ed.2d her (1979); Walcott, Quilloin 246, constitutionally protected. child is v. 434 Troxel U.S. Granville, 57, 549, 65-66, (1978); v. 98 54 530 120 S.Ct. L.Ed.2d 511 Wis U.S. S.Ct. 2054, (2000) (“the Yoder, 205, 147 L.Ed.2d 49 Due consin v. 406 U.S. 92 S.Ct. 1526, (1972); Clause of the Stanley Process Fourteenth Amend- 32 L.Ed.2d 15 v. Illinois, 1208, protects right 645, ment 92 the fundamental U.S. 31 405 S.Ct. (1972); parents concerning make decisions the L.Ed.2d 551 Prince v. Massachu setts, care, 158, custody, 438, control of their chil- 321 64 L.Ed. U.S. S.Ct. 88 ¶¶ dren”); Sisters, 115, 8, (1944); Soc’y v. 1999 ND 645 Pierce v. 268 Hoff (Article 10, 571, I, 510, 1 595 N.W.2d 285 sections U.S. 45 S.Ct. 69 1070 L.Ed. 12, Nebraska, (1925); 390, of the North Dakota v. Meyer Constitution 262 U.S. 625, (1923)). “care, secure the parents have in 43 S.Ct. 67 L.Ed. 1042 Peterson, custody, management of their chil- relied on some same dren.”); Peterson, 14, Peterson ND well Supreme v. 1997 as other United States McDowell, 97; ¶ See, 170, Schiff, e.g., 24, McDowell v. v. 2001 ND 617 N.W.2d Schiff 28, ¶ 176, 139; 113, 9,¶ 191; Stoppler Stop v. Acker 635 N.W.2d 2000 ND 611 N.W.2d Ackerman, 14, ¶ 148, 142; 135, 13, ¶ pler, 2001 ND man v. ND 596 633 N.W.2d 1999 Tibor, Moilan, 43, 332; 103, ¶ 8, Tibor v. Moilan N.W.2d ND 1999 ND S.L.N., 12; ¶ 29, 81; Griffeth, K.L.G. v. Reinecke v. Johnson, 232; (N.D.1995). Johnson N.W.2d

910 absolute, par children are parent’s a their describing cases when Peterson, care to their children provide must or her children. ents to his ¶14, 12, (citing 826 least satisfies minimum commu 559 N.W.2d that at

1997 ND Connecticut, 371, standards). 91 401 U.S. nity v. Boddie (1971); M.L.B. 780, 113 28 L.Ed.2d S.Ct. 102, 555, S.L.J., 136 117 S.Ct.

v. 519 U.S. Ill Kramer, (1996); v. Santosky 473 L.Ed.2d defining rights, When visitation 1388, 745, 71 L.Ed.2d 455 102 S.Ct. U.S. recognize par- that noncustodial must Serv., (1982); Soc. Dep’t v. 599 Lassiter constitutionally protected right a ents have 2153, 18, 101 68 L.Ed.2d 640 452 S.Ct. U.S. See, relationship with their children. a 205, Yoder, (1981); 406 U.S. v. Wisconsin Granville, 66, 57, e.g., Troxel v. 530 U.S. (1972); 1526, 15 Pierce 92 32 L.Ed.2d S.Ct. (2000); 2054, 147 L.Ed.2d 49 120 S.Ct. Sisters, 510, 45 268 U.S. S.Ct. Soc’y v. ¶ 115, 12, 595 v. 1999 Hoff (1925); 571, Meyer v. Ne L.Ed. 1070 69 statutorily 285. The defined best N.W.2d 390, 625, braska, 43 S.Ct. 67 262 U.S. of the child should be used interests (1923)). L.Ed. 1042 practical aspects of how the decide recognized par also [¶ We have 32] to maintain rights these will be balanced with his or her chil rights visitation ent’s relationship, not as a parent-child can be taken dren are not absolute rights belong- means to define visitation interests when the child’s best away ing solely the child. See N.D.C.C. through further contact with be harmed 14-05-22(2). must not trivialize or S.L.N., 33, v. 2001 ND K.L.G. parent. constitutionally pro- to erode the attempt ¶ 232; 11, also v. see Schiff rights parents of noncustodial tected ¶ 9, 113, N.W.2d 191 Schiff, 2000 ND continuing rights to refer to their visitation (to an restriction visita justify onerous or privileges. mere wishes tion, resulting emotional harm physical or Dale Sandstrom from the must demonstrated visitation be Hendrickson, detail); Hendrickson ¶1, 21, (denying 603 N.W.2d 896 2000 ND visitation with a noncustodial restriction, such that

child is onerous resulting

physical or emotional harm from must be demonstrated de visitation 2002 ND 68 imposed); tail it Ackerman v. before KNUTSON, Plaintiff Geraldine ¶ 135, Ackerman, 13, 596 1999 ND N.W.2d Appellant, (the deprived likely only if visitation is to en visitation danger physical the child’s emotional Knutson, Plaintiff, Andrea health); Healy, Healy v. (N.D.1986) (an denying BARNES, in cor- The COUNTY OF its be demonstrated on a standard of must County capacity; cause). porate Barnes Juve- proof higher probable Only than Court; County nile Barnes Social Ser- may egregious the most situations vices, corporate capacity; The in its parent’s rights completely terminated City, City Valley corporate See, in its e.g., the State. 27-20- Valley City Depart- 44; capacity; Police T.K., In re ment; McDonald, in his official (parents’ rights to Mark fundamental notes explained her Berg] convincing evidence that [Brenda therapy sessions between December professional the necessary has received 16,1998: 1996 and March treatment so therapeutic counseling and impulsive great as to correct her conduct and Brenda has learned a deal about I unmanaged anger, managing and that there is no stress in her life. believe a risk of harm the minor chil- will need to longer employ to she to continue parties necessitating super- techniques. psycho- those dren Besides medically therapy, vised visitation. Brenda is ad- also depression.... dressing the We conclude the trial court’s find- [¶ 6] I I have believe come to a secure under- ings supported by of fact are the record standing sitting with by Brenda her The evi- and are not erroneous. (21) through twenty-one hours of thera- Berg that has had a dence shows Brenda future, py. I also that in the she believe visitations long period unsupervised using primitive will not resort to the children incident or harm with without defenses, i.e., yelling neurotic and The that to them. evidence also shows swearing, past. that in the she used Berg has counseling Brenda received anger be- previously her uncontrolled Davis, clinical James social [¶ 8] havior and that she successful has been worker, custody did extensive evalua- rehabilitating herself. tion and the chil- Berg between Brenda during pendency dren of the divorce Mueller, Karen a social worker filed with proceedings. report, his degree, a masters thera- provided with 18,1998, court on Davis May district states Berg for Brenda December 1996. py since part: in relevant diagnosed Berg having Brenda as had She (11.5) I spent eleven and one-half hours adjustment disorder with mixed distur- children Berg with Brenda and her emotions bance of and conduct. Weston as public private settings. both well as Berg complained Berg pre- that Brenda venues, Berg was able all Brenda re- therapist sented herself this con- appropriate parental exercise counseling merely ceived the victim of .... trol and not as the perpetrator abuse domes- as- her father Berg tic violence. evidence belies that Kate articulated to that wanting Mueller one spend day sertion. testified Brenda she was mom”.... convincing her father and “100 with evidence unsupervised with visita- not interpret I Kate’s statement do tion with her will children of either being her father as evidence endanger physical children’s alienation on of Bren- parental part emotional health is not clearly erroneous. Berg or a lack for her da of affection We further conclude the trial court’s find- rather, Berg; on the of Kate father issue, ings of fact supplemented on glimpse what we have I believe here is remand, supported are the evidence psyche of a child who is into small sufficiently specific and are detail stability with the expressing need for apprise this Court of the trial court’s rea- primary she person perceives as her soning rationale in awarding unsuper- Mrs. parent, Berg. vised visitation. rejected though Even the district court recommendation Davis’s III. Health Insurance custody granted certainly could Davis’s ex- original consider In the divorce decree opinion findings pert as relevant the district court ordered Brenda

Case Details

Case Name: Berg v. Berg

Court Name: North Dakota Supreme Court

Date Published: Apr 18, 2002

Citation: 642 N.W.2d 899

Docket Number: 20000355

Court Abbreviation: N.D.