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Jennifer Anne Keita v. Mohamed Founeke Keita

November 27, 2012

JENNIFER ANNE KEITA,
PLAINTIFF AND APPELLEE
v.
MOHAMED FOUNEKE KEITA, DEFENDANT AND APPELLANT



Appeal from the District Court of Grand Forks County, Northeast Central Judicial District, the Honorable Sonja Clapp, Judge.

The opinion of the court was delivered by: Kapsner, Justice.

N.D. Supreme CourtKeita v. Keita,

2012 ND 234

This opinion is subject to petition for rehearing. [Go to Documents]

[Download as WordPerfect] Concurrence filed.

AFFIRMED

IN PART, REVERSED IN PART, AND REMANDED. Opinion of the Court by Kapsner, Justice.

[¶1] Mohamed Keita appeals from a divorce judgment awarding Jennifer Keita primary residential responsibility for the parties' minor child, granting Mohamed Keita supervised parenting time for the child, denying Mohamed Keita joint decision-making authority for the child, distributing the parties' marital property, awarding Jennifer Keita attorney fees, and reserving jurisdiction for a future spousal support award. We conclude the district court did not err in awarding of attorney fees and distributing property, but we conclude the court erred in awarding supervised parenting time, child support, and in reserving jurisdiction for future spousal support. We affirm in part, reverse in part, and remand for further proceedings.

I

[¶2] In 2006, Jennifer Keita and Mohamed Keita were married in Atlanta, Georgia. They had one child, born in 2008. In June 2010, the parties separated, and in September 2010, Jennifer Keita began this divorce action against Mohamed Keita. The district court entered a temporary order, granting the parties possession and use of their separate residences and vehicles, awarding Jennifer Keita sole decision-making authority and primary residential responsibility for the parties' child, awarding Mohamed Keita parenting time via webcam or telephone, and implementing restraining provisions regarding contact between the parties. The temporary restraining provisions were the result of a stipulated dismissal of a disorderly conduct restraining order Jennifer Keita had previously obtained against Mohamed Keita in November 2010, which was based on his contact with her via text and voice mail messages.

[¶3] After a bench trial, the district court divided the parties' marital property, ordered Mohamed Keita to pay a cash property distribution to Jennifer Keita, awarded Jennifer Keita primary decision-making and residential responsibility for the child, and awarded Mohamed Keita supervised parenting time. The court also ordered Mohamed Keita to pay child support to Jennifer Keita, denied Mohamed Keita's request for a downward deviation of his child support obligation for parenting time expenses, and awarded Jennifer Keita attorney fees. After appealing to this Court, Mohamed Keita asked the district court judge to disqualify herself arguing the judge was biased against him because of his national origin, race, and religion. The district court subsequently concluded it was without jurisdiction to address the issue pending appeal.

II

[¶4] Mohamed Keita argues that the district court erred in awarding him supervised parenting time for the child based, in part, upon his status as a Muslim and a citizen of Mali, West Africa.

[¶5] Section 14-05-22(2), N.D.C.C., provides that "upon request of the other parent, [the court] shall grant such rights of parenting time as will enable the child to maintain a parent-child relationship that will be beneficial to the child, unless the court finds, after a hearing, that such rights of parenting time are likely to endanger the child's physical or emotional health." "'In awarding [parenting time] to the non-custodial parent, the best interests of the child, rather than the wishes or desires of the parents, are paramount.'" Wolt v. Wolt, 2010 ND 26, ¶ 38, 778 N.W.2d 786 (quoting Bertsch v. Bertsch, 2006 ND 31, ¶ 5, 710 N.W.2d 113); see N.D.C.C. § 14-09-06.2 (providing "best interest" factors). A district court's decision on parenting time is a finding of fact, which we review under the clearly erroneous standard of review. Wolt, at ¶ 38; Bertsch, at ¶ 5. "A finding of fact is clearly erroneous if it is induced by an erroneous view of the law, if no evidence exists to support it, or if the reviewing court, on the entire evidence, is left with a definite and firm conviction a mistake has been made." Wolt, at ¶ 7 (quotations omitted). A district court's factual findings should be stated with sufficient specificity to enable this Court to understand the basis for its decision. See Marsden v. Koop, 2010 ND 196, ¶ 21, 789 N.W.2d 531.

[¶6] "[O]ur statutes and case law recognize that [parenting time] with a non-custodial parent may be curtailed or eliminated entirely if it is likely to endanger the child's physical or emotional health." Marquette v. Marquette, 2006 ND 154, ¶ 9, 719 N.W.2d 321. This Court has said a restriction on parenting time must be supported by a preponderance of the evidence and "'accompanied by a detailed demonstration of the physical or emotional harm likely to result from visitation.'" Wolt, 2010 ND 26, ¶ 38, 778 N.W.2d 786 (quoting Marquette, at ¶ 9).

[ΒΆ7] Here, in awarding Mohamed Keita supervised parenting time, the district court considered the best interest factors. The court found Mohamed Keita is not a United States citizen, but rather a citizen of Mali, West Africa, and he had not been to Mali since 1999. Although Mohamed Keita testified he had permanent residency status since 2008 in the United States, the court found he "offered no documentation" to prove the status and there was "uncertainty" as to his status and "uncertainty" as to the impact the divorce would have on the status. The court found that Mohamed Keita's father had two wives in Mali and is a polygamist, which the Court noted was legal and appropriate in Mali. The court found Mohamed Keita has three siblings who live in Mali and the United States and half-siblings who live in Mali and ...


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