As Corrected April 4, 2014.
Appeal from the District Court of Rolette County, Northeast Judicial District, the Honorable Michael G. Sturdevant, Judge.
Robert G. Ackre, Cando, N.D., for plaintiff and appellee; submitted on brief.
Timothy P. Hill, Fargo, N.D., for defendant and appellant; submitted on brief.
Dale V. Sandstrom, Carol Ronning Kapsner, Gerald W. VandeWalle, C.J. The Honorable Lisa Fair McEvers was not a member of the Court when this case was heard and did not participate in this decision. Surrogate Judge Mary Muehlen Maring, sitting. Crothers, Justice, concurring and dissenting.
[¶1] John Lervold appeals from a district court order denying his motion to modify primary residential responsibility from Simone Regan to himself. We conclude the district court erred as a matter of law in ruling that a material change in circumstances did not exist and in denying Lervold's request for a change of primary residential responsibility. We reverse and remand for further proceedings.
[¶2] Simone Regan and John Lervold were married in 2003 in Maryland and subsequently lived in Georgia and California. They have one son, who was nine years of age at the time of the May 2013 hearing in this case. The parties divorced in California after a " lengthy litigious process," and they agreed to shared parenting time for their minor son, culminating in a May 13, 2010, stipulation and order for custody and visitation, which was entered in the Superior Court of California for the County of Sacramento. By the time the order was entered, Lervold was living in Arizona, and Regan was residing in Rolla, North Dakota. Both parties have remarried.
[¶3] Under the May 2010 California court order, Lervold was entitled to parenting time during the school year and primary physical custody in the summer. Each party was entitled to reasonable telephone communication with the minor child and were mandated to purchase a webcam for alternative communication. The parties were awarded joint legal custody, and, as the parent with primary residential responsibility during the school year, Regan was responsible for providing Lervold with school records, meeting notices, and school conference information. The order also required Regan to complete an assessment and medical evaluation by a board-certified psychiatrist within 90 days of the May 2010 order.
[¶4] In April 2011, the venue of this case was changed from Sacramento County, California, to Rolette County. In June 2012, in the district court Lervold moved to modify primary residential responsibility. The district court appointed a custody investigator in August 2012, who subsequently completed a report and recommendation in December 2012. The custody investigator's report, in part, concluded the co-parenting arrangement agreed upon by the parties was not working well and the child had suffered from the conflict between the parties.
[¶5] In May 2013, Lervold moved the district court for leave to permit telephonic testimony at the evidentiary hearing on his motion. The court denied his request in a May 2013 order and again denied his oral request at the hearing to present witness testimony by telephone. The district court held an evidentiary hearing on May 29 and 30, 2013, and subsequently issued its memorandum opinion and order, denying Lervold's motion to modify primary residential responsibility.
[¶6] The district court had jurisdiction under N.D. Const. art. VI, § 8, and N.D.C.C. § 27-05-06. The appeal is timely under N.D.R.App.P. 4(a). This Court has jurisdiction under N.D. Const. art. VI, § § 2 and 6, and N.D.C.C. § 28-27-01.
[¶7] Lervold argues that the district court erred in refusing to consider all evidence, including telephonic testimony. Regarding the form and admissibility of evidence in civil proceedings, N.D.R.Civ.P. 43(a) states:
At trial, the witnesses' testimony must be taken in open court unless a statute, the Rules of Evidence, these rules, or other court rules provide otherwise. For good cause, or on agreement of the parties, and with appropriate safeguards, the court may permit testimony in open court by contemporaneous transmission from a different location. A party must give notice if a witness is unable to testify orally or if testimony by contemporaneous transmission may be necessary.
[¶8] We have explained that the district court has broad discretion in deciding evidentiary matters. Lawrence v. Delkamp, 2008 ND 111, ¶ 7, 750 N.W.2d 452. " This Court will overturn the district court's admission or exclusion of evidence only if the district court has abused its discretion." Id. A district court abuses its discretion when it acts arbitrarily, unconscionably, or unreasonably, or when its decision is not based on a rational mental process. Id.
[¶9] Here the district court denied a request before trial and at trial to permit testimony to be provided telephonically. Lervold apparently sought admission of telephonic testimony from Regan's brothers, who reside in California and Arizona. Although Lervold points out that counsel had previously appeared telephonically for legal argument, the district court declined telephonic testimony, in part, because of a lack of technology in the courtroom. We have said mere convenience of witnesses may not be sufficient to establish " good cause" under the rule and have acknowledged the shortcomings of telephonic testimony. See Lawrence, 2008 ND 111, ¶ ¶ 9-10, 750 N.W.2d 452 (discussing N.D.R.Civ.P. 43(a) amendment and explanatory note); see also Gust v. Gust, 345 N.W.2d 42, 45 (N.D. 1984) (" [I]n testimony by telephone the image of the witness cannot be seen nor does it disclose if the witness is using or relying upon any notes or documents and, as a result, meaningful communication is effectively curtailed or prevented. . . . Above all, in testimony by telephone the trier of facts is put in a difficult, if not impossible, position to take into account the demeanor of the witness in determining the witness' credibility." ).
[¶10] On the basis of our review, we cannot conclude the district court acted arbitrarily, unconscionably, or unreasonably, or that its decision was not based on a rational mental process. We therefore conclude the court did not abuse its discretion in denying Lervold's ...