*1 JOHNSON, Jon Waldemar Appellee,
Plaintiff and SCHLOTMAN,
Dianne Helen f/k/a Johnson, Dianne Helen Defendant Appellant.
Civ. Nos. 920255.
Supreme Court of North Dakota. *2 Jon, alleging
Dianne and with that it Jon had an adverse effect the children’s well-being, alleging and Dianne that Jon turning against the children her due to was Dianne, per- against his bias homosexuals. ceiving interfering her Jon was with rights, prepared a motion visitation for August modification of visitation precise which called for a more and Heinley Aljets, & Aljets of Thomas J. reply visitation schedule.1 asked the Jon’s appellee. Ap- Carrington, plaintiff for court to rescind all of Dianne’s residential by pearance Jon W. Johnson. care and visitation of the children unless William Kirschner of Kirschner Law Of- Ella, Dianne ceased her cohabitation with fice, appellant. Fargo, for defendant and partner, discussing, Dianne’s and ceased Kirschner, by Appearances Laurie Miller promoting, displaying her sexual orien- Huwe, Ella and Dianne Schlotman. to the tation children. After these motions new, upon, essentially were not acted but Legal L. De- Paula Ettelbrick of Lambda similar, motions for modification of Fund, Inc., Broadway, fense and Edue. early and visitation were filed in City, Ryland M. New York and Erica Weil, Manges, City, Gotshal & New York 1991, February appointing an order curiae, Legal for amicus Defense Lambda guardian purpose ad litem for the of visita- Fund, and Educ. Inc. by tion was issued the trial court. The guardian order ad litem forbade to take WALLE,
YANDE Chief Justice. the children to Dianne’s residence if Ella there, appealed prohibited Dianne H. an continued to reside Schlotman from Ella, having any judgment temporarily amended ter- children from contact with rights prohibited parties discussing minated her visitation with her two both children and denied her motion for a Dianne’s sexual activities custody, presence. from an order which denied her motion for a new trial. hearing April A was held on March 7 and judgment We affirm the but remand for 16, 17, 18, 22, hearing, 1991. At the proceedings, further and affirm the order testified, twenty-four including individuals denying the motion for a new trial. psychologists An and counselors. amended
Dianne and judgment Jon W. Johnson were mar- entered in was 1991 which daughter, currently age ried 1974. A temporarily discontinued Dianne’s visita- son, currently age and a were tion and residential care born of the children. during marriage. provided Dianne and en- Jon The order also that the children stipulated tered into a counseling Douglas divorce settlement were to seek the of Dr. provided Knowlton, parties 1986which psychologist, would have and that Jon and and, joint legal custody comply two children Dianne were any of Dr. part, for unspecified the most requests pertaining visitation. Knowlton’s reasonable The children continued to live with Jon in to the children’s treatment. Dr. Knowlton Glenfield, North Dakota. Dianne eventual- was to decide when visitation and contact ly Fargo. moved to with Dianne was to resume and what limi- imposed. tations were ap- to be Dianne divorce, After the Dianne moved in with pealed judgment. this amended Huwe, partner, Ella her and informed the children that she was a lesbian. perfected, Dianne’s After the eventually sexual orientation became the filed a motion for a new trial center continuing disputes alleging “newly between court as discovered evi- Jon, part 1. This motion is not a reply of the official trial as his is in the official record. record, apparently it was received Barrett, that, psycholo- dence” Dr. the one The trial testimony pri- heard divorce, gist repri- had who testified for been or to the Dianne informed Jon that manded the North children, however, Dakota State Board she awas lesbian. The Psychologist divorce, Examiners his work were not told. After the chil- *3 done in the case. dren visited Dianne generally enjoyed 1989, company. her In Dianne introduced 27, 1991, On November we ordered “that Ella, part- the children to Dianne’s lesbian the case the pur- be remanded for limited ner, daughter and also her informed that pose considering of Motion the for a New she, Dianne, spe- was a a lesbian and had Trial and the that the amended [of relationship daughter, cial with Ella. The judgment] abeyance pending be held in fi- naturally curious, many questions asked nal determination of that Motion.” homosexuality ap- about Dianne’s 10, 1992, February On the trial court peared to generally accept it. At a later temporary issued an order for visitation date, her son was likewise informed of unsupervised which Dianne allowed visita- homosexuality Dianne’s and her relation- any tion of the two children her at home or ship with Ella. place other suitable at certain and point At some after the children were provided times. order that The Dr. Knowl- orientation, told of Dianne’s sexual the chil- psychologist ton continue as the children’s began having dren problems depres- with weekly and that meet he the children inability sleep. sion and to Dianne submit- involved, and the families do that he testimony ted problems that the children’s everything possible to continue to assist bigotry stemmed from Jon’s to regard the resolving problems. families homosexuals poisoned the children’s Court, On remand from this the trial against Jon Dianne. submitted testi- minds summarily denied Dianne’s motion mony problems that the stemmed trial, separate for a new a issued order against school and societal discrimination 10, for temporary visitation on homosexuals, and his attitude that was not which, order, like the February of problems, the root al- unsupervised allowed visitation and contin- though personally he considered homosexu- ued treatment Dr. Knowlton. ality that deviant behavior should not be appealed Dianne the denial of her motion tolerated. for a trial August new on attempts Dianne to minimize this testi-
mony testimony her by accentuating that I. against poisoned Jon the children’s minds homosexuality. Although Dianne and her modify A trial court’s decision to solely Dianne characterizes this case as one finding subject is a of fact to of orien- discrimination based sexual clearly erroneous of standard review. tation, it is not. Both and Jon Leidholm, (N.D. Blotske v. N.W.2d presented testimony experts of who 1992). finding A is clearly of fact errone extensively analyzed the obstacles children ous it is induced an erroneous view propri- of a homosexual face and the law, if there is support no evidence to ety custody stemming therefrom. But it, if, although there some evidence telling presented. other evidence was also it, court, support reviewing en on the did evidence, The court not find that both tire is left awith definite and equally suitable to role firm assume custodial conviction that a mistake has been 52(a), NDRCivP; requires change made. evidence Rule In re Estate Dittus, (N.D.1993); custody to if were Diane it not for her Blotske, carefully preference. ample sexual There is addi- reviewing the record, testimony supporting entire we are tional trial unable deem the modify custody judge’s finding court’s refusal residen- visitation and clearly erroneous. tial care remain with Jon. NDCC, change, Dianne has the burden 14-09-06.2, seeking sets forth
Section
showing
that a circumstance
determining
both
considered
to be
factors
significantly
that this
changed
welfare of the children
interests and
best
daugh-
adversely affected the child that
custody. The
so
purposes of child
Gould,
trial,
changed.
supra; Lapp
ter,
should be
age
time of
testified
12 at the
Lapp,
not
with v.
very strong preference to
live
her
explained that
daughter
Dianne. The
changed
There are
circumstances
her
listen and attend to
Dianne refused to
remarried, Dianne informed
this case: Jon
needs,
to be
that she was embarrassed
lesbian, Dianne
the children that she is a
mother,
afraid her
around her
that she was
partner, and the
resides with her lesbian
*4
display their affec-
mother and Ella would
their
children refuse to exercise
visitation
to continue
publicly,
tion
that she wanted
if
court were
with Dianne. Even
the trial
in
where her friends and
to live Glenfield
ignore
homosexuality, the evi
to
Dianne’s
were,
strong
and that she had a
school
presented is sufficient to sustain a
dence
relationship
Jon and his new wife.
that
interests of the
conclusion
best
14-09-06.2(1)©.
See NDCC §
by continued cus
children are best served
Testimony
revealed that the children tody
especially
light
also
in
of the
with Jon —
in
have lived with Jon Glenfield
entire
the rela
stability of the custodial home and
lives,
Jon,
and have attended no other school
tionship the children have with
Barstad,
than that in Glenfield. The stable and sat
supra;
custodial father.
See
clearly
(N.D.
isfactory
Winn,
environment with Jon was
various children been Pioneer Credit Co. v. (N.D.1979). Furthermore, as experiencing involving visitation and con- N.W.2d 445 post-appeal orders in this ease illus- tact with Dianne. Neither nor trate, upon a motion for a new trial based Dianne, spouse, nor Jon’s nor Dianne’s discovery custody of new evidence partner, shall interfere with committed inappropriate and visitation cases is be- working with the minor the counselor continuing jurisdiction cause the of the trial comply and Dianne shall children. Jon court in matters allows for a modi- any reasonable recommendations hearing fication when new evidence is ad- counselor; made which recommen- Blotske, Hoven, supra; duced. See Vande necessary dations the counselor feels are supra; Voskuil, Voskuil v. 256 N.W.2d working children.” (N.D.1977). Therefore, preferred case, Under the circumstances of this we party position method a in Dianne’s should believe trial court should monitor its employ when new evidence is discovered is continuing psychological order of treat modification, a motion for not a motion for periodically ment. The trial court should event, any a new trial. a trial court’s treatment, inquire review and into the denial of a purely motion for a new trial is any changes progress note in the children’s discretionary, and we will not disturb it on may affect or future visita appeal unless there is an affirmative show- tion, particularly in view the fact that ing of a manifest abuse discretion. the trial court’s visitation order reflects it Kraft, Kraft In relied Dr. Knowlton’s recommenda record, light of the we see no manifest judgment provides tions. The amended discretion, abuse of and we affirm the or- parent may bring either a motion to *6 denying der the motion a for new trial. counseling the court to discontinue if after judgment The amended of the trial court a time apparent reasonable “it becomes affirmed, is but we remand with instruc- counseling Here, that working.” is not tions to the court to monitor the court- par because of the obvious distress of the psychological reports. ordered children, and ties the court believed psychological necessary treatment is SANSTROM, NEUMANN and and ordered such treatment. It should MESCHKE, JJ., concur. psychological reports monitor the to deter LEVINE, Justice, concurring. counseling mine if the achieving its de sired effect. If achieving it is not its de express I write my to concur and to effect, appro sired the court should order so, doing paral- reasons for some of which priate changes in treatment or care of the majority. lel those of the children. Rule NDRCivP. We re Cf. now, we, By lawyers judges, recog- and mand to the trial court for this determinat change-of-custody proceedings nize that ion.3 wholly are original different animals from custody finality ones. Considerations of
IV.
guard against
prior
modifications of
custo-
This matter
ap
consolidates two
decrees,
dy
Bank,
see
Bank v.
Von
Von
second,
peals.
separately-docketed
(N.D.1989),
change-
and in
appeal,
alleged
that the trial court
of-custody proceedings,
emphasis
is on
in denying
erred
her motion for a new trial
stability
continuation of the
of the chil-
upon newly
based
discovered evidence. Be
relationship
par-
dren’s
with their custodial
issue,
cause Dianne has not briefed this
we
Leidholm,
ent. E.g., Blotske v.
claim,
assume she has
abandoned the
and
Only
N.W.2d 607
if it is “com-
we have the authority
to
pelled”
“required”
dismiss the
in the children’s best
pursuant
31(c),
interests,
to Rule
NDRAppP.
change
custody
should a
occur
Cf.
judge
Because the trial
who heard this matter
new
on remand.
retired,
presiding judge
assign
has
will
See,
ence
interrupt
e.g.,
and
the children’s custodial rela
with visitation.
Blotske v.
parent.
tionship
E.g., Leidholm,
custodial
supra.
In none of those cases
Barstad,
(N.D.
with,
Barstad v.
499 N.W.2d
did we deal
nor have
ever
we
been
loud,
1993).
message,
is the
clear and
That
with,
presented
the custodial
literal-
consistent,
trumpeted
that we have
Orke
ly teaching
charge
the children in his
to
(N.D.1987);
Olson,
Del
disrespect
par-
hate and
their noncustodial
(N.D.1992);
Winn, 491
zer v.
N.W.2d 741
ent.
It seems too obvious to mention that
Leidholm,
So,
and
Blotske
non
unaccep-
that kind of
is absolutely
conduct
parents challenging custody
custodial
table and should and would
in the
result
daunting,
forewarned that
ardu
theirs is
custody,
termination of
it is so
because
They
prove
only
ous task.
must
not
contrary to children’s best
interests
importance
something
changed sig
has
hatred,
learn from their
intolerance
change
nificantly,
that this
has so ad
And,
prejudice
parent.
for
other
versely
custody
affected the children that
taught
children are
to hate.
“Children
changed.
must
If this
be
sounds ominous
They
learn hatred.
are infected
its vi-
discouraging
challengers
custody,
early learning
rus
it even from their
—
”
it is intended to. We do not entertain
Quoted
mothers and fathers....
from an
lightly
proposed disruption
of the conti
invitation,
issued
New York Governor
nuity
our
of care and
aversion
Weisel,
Eli
Mario Cuomo and
a confer-
changing custody
backdrop
sets the
ence at
Law
Anatomy
N.Y.U.
School: The
any parent challenging the custodial status
Saving
of Hate:
Our Children. “Hate
quo.
frontiers,
knows no
neither
nor eth-
racial
Having
pro-
out
elaborated and set
masks,
Wearing
nic.
various
it can be
logue
dramas,
change-of-custody
for all
I
among
religious
found
com-
all
and social
am
approached
certain that Dianne
her on-
by Eli
Speech
munities.”
Weisel at N.Y.U.
erous
convincing
task of
the factfinder to Law School conference.
with the evidence she con-
factfinder,
If I
may
had
I
been the
have
odds,
defy
sidered sufficient to
over-
prejudice against
found that
homo-
Jon’s
indeed, bias,
presumption,
come the
in fa-
sexuality
to sabotage
led him
maintaining custody
accomplish
vor of
*7
mother,
love and
for
affection
who
might say
nigh
what some
was
on a mira-
happens
lesbian,
thereby
a
be
However, Jon, too,
cle.
mounted his de-
irreparable
caused
harm. But
evi-
fense,
vigorous
and a
one it
And the
was.
dence,
case,
usually
conflicting,
as
is
is
witnesses,
factfinder
which
chose
which ev-
divergent.
supports
contested and
It
two
idence,
party
That
favor.
is what
widely
stories.
different
Precluded
trial judges are for.
firmly
I
substituting my judgment,
am not
that,
agree
I certainly
story
definitely
that the
told
convinced
fact,
in
poisoned the children’s minds by
accepted by
Jon and
the trial
is a
unyielding,
and hearts with his
uncharita-
Therefore,
join
I
affir-
mistake.
homosexuality,
change
ble intolerance of
a
denying
change
mance of the order
cus-
required
protect
would be
tody.
Preventing
children’s best interests.
I agree
majority
with the
the re-
and, indeed,
unhealthy
disrup-
intolerable
visitation,
by
originally ordered
stricted
tion of children’s love and affection for
judge,
wrong
now corrected.
parent,
their noncustodial
an absolute
is
—but
visitation,
custody, including
In matters of
Indeed,
duty
parent.
of the custodial
some
parent’s
I would
a
sexual orienta-
hold that
members of this
have even condoned
contrary
tion is never
to the best interests
granting custody
to a
because his
is
a
child unless there
established
visitation was made “difficult”
the cus-
harm
causal
between
parent.
todial
v.
connection
Gravning Gravning,
See,
(N.D.1986). However,
parent’s
621
child
conduct.
389 N.W.2d
and the
M.,
e.g.,
Dept.
transfer of
is a
to reme-
v.
last resort
Human Services
Jacinta
769,
dy
parent’s
(App.1988);
recalcitrant
habitual interfer-
107 N.M.
re
Cal.App.3d 1024,
glut
prejudice
197
243
Cal.
that festers in the
Conkel,
(1988);
Conkel v.
Rptr. 287
31
Accordingly, homophobia
outside world.
169,
(1987);
App.3d
509
Ohio
N.E.2d 983
place
system
has no
juris-
our
our
Williams,
376,
Stroman v.
291
S.C.
353 prudence. While Dianne accuses the trial
Cabalquinto,
In re
(1987);
704
43
S.E.2d
prejudice against
court of rank
her homo-
518,
Wash.App.
(1986);
M.A.B.
1984); Doe v. 499, Mass.App. 16 452 Cabalquinto, In re (1983);
N.E.2d 293 100 325, (1983); D.H. v.
Wash.2d
J.H.,
(Ind.Ct.App.1981);
Bezio v. 563, 381 Mass. S.P., (1980); M.P. v.
N.E.2d 1207
N.J.Super. 425,
(1979);
Na
but our contrary princi- to that
ple original custody proceedings. Jacob- Jacobson,
son v.
I vigorously disagree principle with the
Jacobson original in an custody pro-
ceeding, when two supposedly
equally caring, fit and that the tie-breaker
should view, be sexual my orientation.
sexual orientation should never be a factor
unless it is established that the sexual be-
havior of the causes harm my position
to the children. And is well
known a contested divorce case
where the equally fit to have
custody, the one who has done nursing, chauffeuring, tending, disciplin- i.e.,
ing, the nurturing, the primary care-
taker, that, prevail, course, should Gravning story.
another Gravning,
supra (Levine, J., dissenting). I would
overrule Jacobson once and for all.
There is no-one who disagree would
our courtrooms should be safe havens from