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Vandal v. Leno

Supreme Court of North Dakota

March 11, 2014

Adam M. VANDAL, Plaintiff and Appellee
v.
Sheena E. LENO, n/k/a Sheena E. Mittleider, Defendant and Appellant.

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Jaclyn M. Stebbins, Bismarck, ND, for plaintiff and appellee.

Justin D. Hager, Bismarck, ND, for defendant and appellant.

VANDE WALLE, Chief Justice.

[¶ 1] Sheena Leno, now known as Sheena Mittleider, appealed from a district court order denying her expedited motion to reopen the record, and from a judgment awarding Adam Vandal primary residential responsibility of the parties' minor child, L.V. We affirm, concluding the district court's decision to award primary residential responsibility to Vandal was not clearly erroneous. We also conclude the district court did not abuse its discretion in denying Leno's request to reopen the record.

I

[¶ 2] Leno and Vandal were never married. Their relationship began approximately in 2010 and ended in January 2012. During that time, they had one child together, L.V., who was born in 2011. Leno alleged their relationship ended because

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Vandal was physically and verbally abusive toward her. Vandal alleged the relationship deteriorated as a result of Leno's selling and abusing prescription drugs and her verbally abusive behavior.

[¶ 3] In March 2012, Vandal filed an action seeking primary residential responsibility and decision-making of L.V. Leno filed an answer and counterclaim seeking primary residential responsibility. Vandal also petitioned the court for an ex parte interim order alleging that the parties' minor child was in imminent danger while in Leno's custody because of her alleged prescription drug abuse. The court issued an ex parte interim order granting Vandal primary residential responsibility of L.V. After a hearing, the court concluded it erred in issuing the ex parte interim order because Vandal did not present evidence of exceptional circumstances. The court vacated the ex parte interim order. A subsequent interim order was entered directing that primary residential responsibility for L.V. be alternated between each parent on a weekly basis.

[¶ 4] In January 2013, a parenting investigator was appointed to the matter. In June 2013, the parenting investigator submitted her report recommending that Vandal should be given primary residential responsibility. The report indicated Leno abused and sold prescription pain medications. The report also contained allegations from Leno that, in late December 2011, Vandal punched her in the back of the head while she was standing at a kitchen sink making a bottle for L.V. Leno did not report the incident to police but ended her relationship with Vandal within days of the alleged incident. Leno also alleged Vandal once threw a baby bottle top at her while she was holding L.V. The top allegedly hit L.V. Vandal denied hitting Leno in the back of the head, instead claiming he poked her with one finger. He admitted throwing a rubber nipple, but denied it hit L.V. At trial he stated the rubber nipple " grazed" the child. The report contained a finding that the incidents did not fit the legal definition of domestic violence. The report included a recommendation that Leno should be required to take a drug and alcohol evaluation.

[¶ 5] A trial was held in July 2013. In August 2013, Leno made a motion to reopen the record to include a letter from an addiction counselor. The court denied the motion as untimely. In September 2013, the court entered a judgment awarding Vandal primary residential responsibility over L.V., including decision-making authority.

II

[¶ 6] This Court reviews an award of primary residential responsibility under the clearly erroneous standard of review, which does not allow us to reweigh the evidence, reassess the credibility of witnesses, or substitute our own judgment for a district court's initial decision. Martiré v. Martiré ,2012 ND 197, ¶ 6, 822 N.W.2d 450. A district court's decision awarding primary residential responsibility is a finding of fact which will not be set aside on appeal unless it is induced by an erroneous view of the law, no evidence exists to support it, or, on the entire record, we are left with a definite and firm conviction a mistake has ...


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