Appeal from the District Court of Williams County, Northwest Judicial District, the Honorable Gerald H. Rustad, Judge.
The opinion of the court was delivered by: Maring, Justice.
N.D. Supreme CourtSorenson v. Slater,
This opinion is subject to petition for rehearing. [Go to Documents]
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Opinion of the Court by Maring, Justice.
[¶1] Tim Sorenson appealed from an amended judgment awarding primary residential responsibility of his son to Jana Slater, the child's mother. We reverse and remand for further proceedings, concluding the district court did not exceed the scope of a prior remand but erred in admitting into evidence and relying upon the results of polygraph tests to conclude Sorenson had committed domestic violence.
[¶2] Sorenson and Slater, who were never married, had a child together in May 2008. The child initially lived with Slater, but Sorenson petitioned to establish paternity and sought custody of the child.
[¶3] In November 2008, the child suffered a broken clavicle. The parties disputed whether the injury occurred during a weekend visitation with Sorenson or after the child had been returned to Slater. The emergency room doctor who treated the child filed a report with social services, resulting in investigations into the incident by social services and law enforcement. Sorenson and Slater both submitted to polygraph examinations as part of the criminal investigation. No criminal charges were filed, but social services recommended that Sorenson and Slater attend parenting classes. See Sorenson v. Slater, 2010 ND 146, ¶ 3, 786 N.W.2d 739.
[¶4] In September 2009, following a two-day trial, the district court issued its order awarding primary custody to Sorenson, with reasonable visitation to Slater. The court's order included findings of fact on each of the best interests factors under N.D.C.C. § 14-09-06.2(1). The court determined that the best interests of the child favored custody with Sorenson, finding that Sorenson's home environment was more stable and organized than Slater's. The results of the polygraph examinations were not introduced into evidence at the trial. On the issue of domestic violence, the court's finding, in total, was: "This is not an issue." Sorenson, 2010 ND 146, ¶ 5, 786 N.W.2d 739.
[¶5] Slater appealed to this Court, which reversed the judgment and remanded. Id. at ¶ 14. A majority of this Court concluded that the district court's findings of fact on two of the best interests factors were clearly erroneous, that the findings on two factors did not adequately explain the court's rationale, that the court had failed to acknowledge testimony it had received on some of the factors, and that the findings were sparse and conclusory. Id. at ¶¶ 9-10. The majority also concluded that the district court had applied the wrong version of the statute setting out the best interests factors. Id. at ¶ 11. The Court therefore reversed the judgment awarding Sorenson custody of the child and remanded to the district court for further findings. Id. at ¶ 14.
[¶6] On remand, the district court held a supplemental evidentiary hearing. Slater introduced extensive additional evidence regarding the broken clavicle incident, including testimony by medical experts and the law enforcement officer who had investigated the incident. Over Sorenson's objection, the court allowed the investigating officer, who had not conducted the polygraph tests, to testify regarding the results of the polygraph tests. The officer testified Sorenson showed signs of deception on his polygraph exam and Slater did not show signs of deception on her exam. The court did not, however, allow the actual written test results into evidence. The district court issued new findings of fact, expressly relying upon the polygraph results to find that Sorenson had committed domestic violence. The court concluded it was in the best interests of the child for Slater to ...