Appeal from the District Court of Burleigh County, South Central Judicial District, the Honorable Sonna M. Anderson, Judge.
The opinion of the court was delivered by: VandeWalle, Chief Justice.
N.D. Supreme CourtMiller v. Mees, 2011 ND 166
This opinion is subject to petition for rehearing. [Go to Documents
Opinion of the Court by VandeWalle, Chief Justice.
Miller v. MeesNo. 20110020
[¶1] Julie Mees appealed from a judgment granting Clint Miller primary residential responsibility of the parties' minor child. Mees argues the court erred in basing its decision on Miller's affidavits, which were not presented in open court, and in awarding Miller primary residential responsibility of the child. We affirm, concluding the court's reference to Miller's affidavits is not reversible error and the court's decision to award Miller primary residential responsibility is not clearly erroneous.
[¶2] Miller and Mees were never married, but lived together for about two years and had one child together. Mees has another child about one year older than the parties' child. In 2007 the parties separated, and in June 2009, Miller brought this action seeking primary residential responsibility of the parties' minor child. Miller claimed Mees had denied him visitation with the child and sought an interim order for visitation. Mees answered and sought primary residential responsibility of the child. The district court issued an interim order, granting Mees primary residential responsibility of the child and awarding Miller parenting time.
[¶3] In September 2009, Mees obtained a temporary domestic violence protection order against Miller, alleging he had sexually abused the child during visitation in September 2009. A police report indicated the allegations were "unfounded," and after further proceedings, the court dismissed the temporary order, concluding there was insufficient evidence to justify a permanent domestic violence protection order. The court reinstated visitation required under the interim order.
[¶4] In October 2009, Miller moved to hold Mees in contempt, claiming he had been denied visitation in September 2009, and he submitted an affidavit in support of his motion. The court dismissed Miller's motion, stating the temporary domestic violence protection order preempted the disputed visitation.
[¶5] Barbara Oliger, a court-appointed parenting investigator, filed a parenting investigation report with the district court in June 2010, in which she evaluated the factors for the best interests and welfare of the child under N.D.C.C. § 14-09-06.2 and recommended that Miller receive primary residential responsibility of the child. At a July 2010 trial, Mees was represented by counsel and Miller represented himself. Oliger, Mees, and Miller testified at trial. The court thereafter awarded Miller primary residential responsibility of the child after making findings under the best-interests factors listed in N.D.C.C. § 14-09-06.2. The court's decision stated "Miller did not offer extensive testimony at trial, but his affidavits are in the file and he was available for cross examination on those affidavits."
[¶6] Relying on N.D.R.Civ.P. 43, Mees argues the district court erred in basing its custody decision on evidence that was not presented in open court. She claims the court committed reversible error in ...