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Kulbacki v. Michael

Supreme Court of North Dakota

April 29, 2014

Amanda E. Kulbacki, Plaintiff and Appellant
v.
Nicholas W. Michael, Defendant and Appellee

Page 626

Appeal from the District Court of Grand Forks County, Northeast Central Judicial District, the Honorable Lawrence E. Jahnke, Judge.

Kari RaNae Winning, Grand Forks, ND, for plaintiff and appellant.

Nicholas W. Michael, self-represented, Terre Haute, IN, defendant and appellee; submitted on brief. Troy Thomas Seibel, Assistant Attorney General, Office of Attorney General, Bismarck, ND, for amicus curiae State of North Dakota; submitted on brief.

Daniel J. Crothers, Lisa Fair McEvers, Carol Ronning Kapsner, Dale V. Sandstrom, Gerald W. VandeWalle, C.J. Opinion of the Court by Crothers, Justice.

OPINION

Page 627

Crothers, Justice.

[¶1] Amanda E. Kulbacki appeals from a district court judgment awarding Kulbacki a divorce from Nicholas W. Michael and granting Michael's mother grandparent visitation. Kulbacki argues that the district court erred in awarding grandparent visitation under section 14-09-05.1, N.D.C.C., that section 14-09-05.1, N.D.C.C., violates the United States and North Dakota Constitutions, that the district court erred in including a provision that a future termination of Michael's parental rights would not impact his mother's visitation rights and that the district court erred in denying Kulbacki's motion for attorney fees as a victim of domestic violence contemplated in section 14-09-29(4), N.D.C.C. We affirm the district court's determination that section 14-09-05.1, N.D.C.C., is constitutional and that grandparent visitation under section 14-09-05.1, N.D.C.C., would not automatically end upon termination of Michael's parental rights. We determine the district court unconstitutionally placed the burden on Kulbacki to show grandparent visitation was not in the child's best interests and made a legal error in determining attorney fees by impermissibly considering Kulbacki's return to Michael after she experienced domestic abuse at his hands. We reverse and remand.

I

[¶2] A May 18, 2012 judgment of divorce dissolved Kulbacki and Michael's ten-month marriage. Kulbacki and Michael have one daughter together. Kulbacki lives with their daughter in Arizona and does not plan to return to North Dakota. Michael was incarcerated on three counts of aggravated assault, one count of interfering with a telephone emergency call, three counts of violating a protection order, one count of felonious restraint, one count of animal mistreatment and one count of simple assault. Michael was sentenced to five years imprisonment, with three years suspended, in addition to five years supervised probation upon release. Michael was sentenced to 96 months incarceration in the federal system when he completes his state sentence.

[¶3] On September 28, 2012, Michael and his mother, Shawn Coulter, filed a motion for grandparent visitation under section 14-09-05.1, N.D.C.C. No motion was filed to intervene or join Coulter as a party. After failed mediation, hearings were held on March 26 and April 11, 2013 to address Michael and Coulter's motion for grandparent visitation and Kulbacki's motion to establish a parenting plan. Kulbacki did not attend either hearing. On April 8, 2013, Kulbacki initiated an action to terminate Michael's parental rights in the superior court for Maricopa County, Arizona.

[¶4] In addition to granting Kulbacki an absolute decree of divorce and legal custody of their child, the district court found section 14-09-05.1, N.D.C.C., constitutional and awarded Coulter one half-hour unsupervised grandparent visitation for each day Kulbacki is in Grand Forks. The district court determined Kulbacki failed to establish limited grandparent time would interfere with her relationship with her child and would be contrary to the child's best interests. The district court determined that if Michael's parental rights are terminated, the termination would not adversely affect the grandparent visitation accorded Coulter. The district court denied Kulbacki attorney fees under section 14-09-29(4), N.D.C.C. Kulbacki appealed.

Page 628

II


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