Appeal from the District Court of Cass County, East Central Judicial District, the Honorable Frank L. Racek, Judge.
The opinion of the court was delivered by: VandeWalle, Chief Justice
[¶1] Maureen Ann Woodward appealed from a third amended divorce judgment changing primary residential responsibility of her minor child from her to her former husband, George Woodward, and establishing a parenting schedule for the child. We hold the district court did not err in denying Maureen Ann Woodward's motion for recusal of the district court judge and the court's modifications of primary residential responsibility and parenting time are not clearly erroneous. We affirm.
[¶2] In Woodward v. Woodward, 2009 ND 214, ¶¶ 2-4, 776 N.W.2d 567, we outlined the circumstances leading up to a prior appeal in this post-judgment divorce proceeding:
George and Maureen Ann Woodward were married in 1986 and have three children from their marriage. The parties divorced in 2006. Maureen Ann Woodward was awarded physical custody of the children, and George Woodward was awarded reasonable visitation. George Woodward remarried in 2007 and currently works as a physician in Grand Forks. Maureen Ann Woodward continues to reside in Fargo with the children, serves as their home school teacher and has not remarried.
In 2008, Maureen Ann Woodward discontinued visitation, claiming the children were afraid of George Woodward's new wife, and moved to amend the divorce judgment so that George Woodward could exercise limited visitation with the children only when his new wife was not present. The judicial referee denied Maureen Ann Woodward's motion, granted George Woodward's responsive motion to hold her in contempt for withholding visitation, granted George Woodward compensatory visitation and ordered her to undergo a parental alienation and psychological evaluation. The referee also ordered her to pay George Woodward's attorney fees. Upon request for review, the district court adopted the judicial referee's findings and order.
After Maureen Ann Woodward continued to deny George Woodward visitation with the children, he again moved to hold her in contempt, and she responded with a motion to suspend visitation. The district court found her in contempt and ordered that the two remaining minor children attend counseling as needed to "transition" them for visitation. The court ordered that Maureen Ann Woodward could purge herself of contempt by complying with the visitation provisions of the amended divorce judgment.
[¶3] In Woodward, 2009 ND 214, ¶ 1, 776 N.W.2d 567, we affirmed the district court orders denying Maureen Ann Woodward's motion to modify or limit George Woodward's visitation with the parties' three children, granting George Woodward's motion for compensatory visitation, finding Maureen Ann Woodward in contempt for failure to comply with the visitation provisions of the divorce judgment, and ordering Maureen Ann Woodward to undergo a parental alienation and psychological evaluation.
[¶4] In March 2009 and while the prior appeal was pending before this Court, George Woodward moved to change custody of the three children. In April 2009, Maureen Ann Woodward asked the district court judge to recuse himself from further proceedings in this case, claiming the judge's refusal to completely read and review the deposition testimony of Dr. Harjinder Virdee, a board certified psychiatrist, at a February 2009 hearing before ruling on George Woodward's prior contempt motion violated the court's judicial duties and demonstrated a lack of impartiality. The court denied Maureen Ann Woodward's motion for recusal, stating that at the February 2009 hearing:
The Court was willing to consider any part of Dr. Virdee's deposition Plaintiff could direct the Court as important. . . .
The Court allowed Plaintiff's Counsel to identify the most pertinent sections of the deposition. Plaintiff's Counsel pointed out that in her deposition, Dr. Virdee speaks strongly about how the children are suffering emotionally and psychologically and that they would be in danger if they were forced to visit their stepmother. . . . Further, Plaintiff's Counsel mentions that they (Counsel and Dr. Virdee) had a rather lengthy conversation that goes on about forty-five pages, but that Dr. Virdee basically makes numerous references to how the children are being affected by the threat or the fear that they have of visiting with their stepmother. . . . . The Court considered the testimony and disposed of the matter fairly and with impartiality. Plaintiff directed the court to no other parts of the deposition, nor does the Plaintiff do so now. Judges are not ferrets. Linrud v. Linrud, 552 N.W.2d 342, 345 (N.D. 1996).
In this case, Plaintiff has previously filed numerous Motions and committed other acts to delay and frustrate visitation between the parties' children and Defendant. Plaintiff has twice been held in contempt concerning visitation. There appears to be no legitimate basis for filing this Motion to Recuse Court. Rather, it appears that Plaintiff filed her Motion to Recuse Court for the sole purpose of further delaying the proceedings in this matter. The Court concludes that a reasonable person could not, on the basis of these objective facts, reasonably question the Court's impartiality, and that disqualification is not required.
[¶5] After an evidentiary hearing, the district court partially granted George Woodward's motion for change of custody and changed custody of only the youngest child. The court found there had been a significant change in circumstances since the original custody decision, including that Maureen Ann Woodward had persistently and without justification denied George Woodward visitation with the children, the children were significantly behind in their schooling, the children had been isolated in Maureen Ann Woodward's home, and George Woodward had remarried and has a stable home in Grand Forks. The court also found it would be in the children's best interests if George Woodward had primary custody because he is better able to satisfy the children's educational needs, he is more aware of the children's social and emotional needs and the importance of developing outside interests, he provides opportunities for the children to interact with their relatives, Maureen Ann Woodward has centered on her continuing conflict with George Woodward and exposed the children to that conflict and alienation, and she has issues which adversely affect the children's relationship with their father. The court decided, however, it lacked authority to change custody of the eighteen-year old child because that child was no longer a minor and a change of custody was not in the best interest of the sixteen-year old child because that child was nearing majority and did not wish ...