Appeal from the District Court of Bottineau County, Northeast Judicial District, the Honorable Michael G. Sturdevant, Judge.
The opinion of the court was delivered by: VandeWalle, Chief Justice.
N.D. Supreme CourtJensen v. Deaver, 2013 ND 47
This opinion is subject to petition for rehearing. [Go to Documents]
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Opinion of the Court by VandeWalle, Chief Justice.
[¶1] Derrick Deaver appealed from a district court order granting a motion by Julie Jensen to restrict his parenting time with the parties' two minor children by requiring him to exercise supervised parenting time outside the presence of his fiancee and her daughter. We conclude the court's decision is not clearly erroneous, and we affirm the order.
[¶2] Jensen and Deaver were divorced in 2009, when their children were three and two years old. Jensen was granted primary residential responsibility of the children, and Deaver was granted parenting time.
[¶3] In a motion filed June 28, 2012, Jensen made an "emergency request" to "suspend [Deaver's] parenting time" with the children, alleging they had been subjected to inappropriate photographs and touches by Deaver's fiancee's eight-year-old daughter. On June 27, 2012, Jensen mailed the notice of motion, the motion, and a supporting affidavit to Deaver's counsel of record. Jensen's supporting affidavit described information the children told her in late May or early June 2012, about inappropriate pictures of their private parts and inappropriate touches by Deaver's fiancee's daughter. Jensen asked the court to suspend Deaver's scheduled parenting time and to require supervised parenting time pending a final hearing. Her affidavit stated that after attempts to contact her attorney, law enforcement officers, and the parties' parenting coordinator, she eventually scheduled interviews for the children with a McHenry County child abuse investigator on June 26, 2012. According to Jensen, after the June 26 interviews she was advised "to take steps to protect" the children. Jensen's affidavit stated Deaver's next scheduled parenting time with the children was on Thursday June 28, and expressed her "concern that unless [the] Court suspends the parenting time, repercussions will occur when [the children] are with [Deaver] and his [fiancee]. I cannot but believe that if [Deaver] were to have the [children] unsupervised, that he would attempt to manipulate them or threaten them to stop telling about the abuse." Jensen also provided the court with information about the parties' schedule for parenting time, which stated Deaver was scheduled to have the children from Thursday, June 28 at 5:00 p.m. until Monday, July 2 at 6:00 p.m.
[¶4] On June 28, 2012, the district court issued an ex parte order suspending Deaver's parenting time and requiring him to exercise supervised parenting time with the parties' children outside the presence of his fiancee and her daughter. The court's ex parte order stated Jensen's moving documents indicated there may be abuse occurring and North Dakota law authorizes an order protecting children upon a reasonable showing of harm to the children. The court stated it was necessary to issue an order modifying Deaver's parenting time and he "may challenge the necessity of this Order, by filing a proper motion with this Court at which time the Court will receive evidence and issue such orders as may be in the children's best interest."
[¶5] In a motion filed July 11, 2012, Deaver asked the district court to expeditiously withdraw its ex parte order. He claimed N.D.R.Ct. 8.2 did not authorize Jensen's emergency request and the specific procedures for obtaining an emergency ex parte order were not followed. He claimed neither he nor his attorney received notice of the emergency proceeding, and he was denied due process and equal protection.
[¶6] After a July 31, 2012 evidentiary hearing, the district court issued an order requiring Deaver to exercise supervised parenting time outside the presence of his fiancee and her daughter until further court order and subject to review at the request of either party after March 1, 2013. The court stated it was "absolutely convinced" about the parties' children's veracity and found Deaver's fiancee's daughter did take inappropriate photographs of the children and performed at least one incident of inappropriate touching. The court found the children were fearful and distrustful of Deaver's fiancee's daughter and the testimony of Charles Pospishil, a licensed clinical social worker at North Central Human Services in Minot, persuasively established the parties' children suffered additional harm because Deaver did not believe their version of the inappropriate ...