Iverson v. Iverson

535 N.W.2d 739, 1995 N.D. LEXIS 133, 1995 WL 442616
CourtNorth Dakota Supreme Court
DecidedJuly 27, 1995
DocketCiv. 950030
StatusPublished
Cited by16 cases

This text of 535 N.W.2d 739 (Iverson v. Iverson) is published on Counsel Stack Legal Research, covering North Dakota Supreme Court primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Iverson v. Iverson, 535 N.W.2d 739, 1995 N.D. LEXIS 133, 1995 WL 442616 (N.D. 1995).

Opinion

SANDSTROM, Justice.

Patricia Iverson appealed from an order of the district court continuing indefinitely an interim order modifying visitations between her son, Jacob Iverson, and his father, John Iverson, and requiring Patricia Iverson to pay guardian ad litem fees of $250.00. Patricia Iverson also appealed from an amended judgment modifying John Iverson’s child support obligation for Jacob. John Iverson filed a cross appeal from the trial court’s order and amended judgment. We conclude the disputed findings by the trial court regarding visitation, child support, and payment of guardian ad litem fees are not clearly erroneous, and we affirm.

I

After her divorce from John Iverson, Patricia Iverson resumed use of her maiden name, Byzewski. We refer to Patricia Iver-son as Byzewski and to John Iverson as Iverson.

Iverson and Byzewski were married in 1989 and Jacob was born later that year. Byzewski was granted a default divorce from Iverson in August 1991. Byzewski was given primary custody of Jacob in the original divorce decree. Iverson was given “the right of reasonable supervised visitation,” to be supervised by Byzewski’s sister, Carol Ja-gow, or another third party specified by By-zewski. The supervision was apparently ordered based on Byzewski’s testimony that Iverson, on multiple occasions, had left the infant child unattended, had transported the child in a ear driven by an intoxicated person, and had threatened to take the child and not return. The decree also required Iver-son to pay child support of $50.00 per month for Jacob. Iverson has three other children, each with a different mother, and his contact and visitation with Jacob since the divorce has been infrequent.

In an August 11, 1993 letter to the court, Iverson complained he had not seen Jacob for two years, explaining it was “mostly due to the awkwardness and uneasiness I would feel along with being unwelcomed” at Ja-gow’s home. Iverson requested a change in supervisor and suggested his own parents, or his sister and her husband. On September 15, 1993, the court entered a temporary order setting specific times for Iverson’s visitations with Jacob: “alternating Tuesday and Thursdays, commencing on the 16th day of September, 1993, from 4:00 p.m. to 8:00 p.m.” The temporary order specifically retained Ja-gow as the supervisor for the visitations, and the court scheduled a later hearing on Iver-son’s motion for change of supervisor. The court later appointed a guardian ad litem to “conduct an investigation and present a report to the Court concerning future visitation arrangements for the child.”

On November 3, 1993, Byzewski filed a motion requesting the court to increase Iver-son’s child support obligation. After hearings on the visitation and child support issues, the court entered an order, dated December 2, 1994, dismissing Iverson’s motion to modify visitation, but continuing indefinitely the September 15, 1993 order scheduling visitations for alternating Tuesdays and Thursdays and retaining Jagow as supervisor of the visitations. The court ordered Byzew-ski to pay $250.00 and Iverson to pay $761.22 for the guardian ad litem fees. The court also entered an amended judgment, increasing Iverson’s child support obligation from $50.00 to $81.00 per month.

The trial court had jurisdiction under Art. VI, § 8, N.D. Const., and N.D.C.C. §§ 27-05-06(2) and 14-05-22. We have jurisdiction under Art. VI, § 6, N.D. Const., and N.D.C.C. § 28-27-01. The appeal and cross appeal are timely under Rule 4(a), N.D.R.App.P.

*742 II

Iverson argues the trial court erred in dismissing his motion to change the visitation supervisor. A trial court’s decision on modification of visitation is a finding of fact which will not be reversed unless clearly erroneous. Smith v. Smith, 534 N.W.2d 6, 12 (N.D.1995). A finding is clearly erroneous only when the reviewing court, based upon the entire evidence, is left with a definite and firm conviction that a mistake has been made. Dschaak v. Dschaak, 479 N.W.2d 484, 486 (N.D.1992).

A

The hearing on the motion to modify visitation was held on July 8, 1994. Iverson personally appeared with counsel, but shortly after the hearing began Iverson left the courtroom and did not return. Iverson’s counsel informed the court Iverson was not feeling well. At the conclusion of the hearing, the court instructed Iverson’s attorney to provide the court with a medical certification Iverson was unable to attend for medical reasons, otherwise the motion would be dismissed. When Iverson’s attorney failed to provide an acceptable explanation for Iver-son’s absence from the hearing, the court dismissed the motion.

Byzewski testified supervision of visitations between Iverson and Jacob is necessary as a safeguard, because Iverson drank excessively in the past and has harshly disciplined Jacob, and she fears Iverson, who lives outside North Dakota, may “take off at anytime” with Jacob. Because he left the hearing, Iverson was not available to refute By-zewski’s testimony. The trial court was not convinced Iverson had made an adequate showing to justify unsupervised visitation or a change of the supervisor. Having reviewed the record, we are not left with a definite and firm conviction the trial court made a mistake. We conclude the trial court’s denial of Iverson’s motion to modify visitation is not clearly erroneous.

B

Byzewski argues the trial court has no basis to continue the interim order, which sets visitations between Iverson and Jacob for alternating Tuesdays and Thursdays between 4 p.m. and 8 p.m. The court entered its interim order at an initial hearing when Iverson complained Byzewski and Jagow were not allowing visitations to occur. By-zewski’s attorney, after conferring with By-zewski, told the court “[w]e have come to agreement” that a scheduled visitation of one day per week for a four-hour period would be acceptable to Byzewski, subject to later review. Evidence introduced at the July 8, 1994 hearing on this issue did not convince the trial court of a need to revert back to unscheduled visitations.

The purpose of visitation is to promote the best interests of the child. Dschaak at 487. Children are entitled to the love and companionship of both parents, and regularly scheduled visitation is an integral part of developing a healthy relationship between a child and the non-eustodial parent. See Gardebring v. Rizzo, 269 N.W.2d 104, 110 (N.D.1978). Byzewski agreed to the scheduled weekly visitations. Consequently, Byzewski has no grounds to complain about the court continuing those scheduled visitations, absent a showing it is in the best interests of Jacob to revert back to unscheduled visitations.

Ill

Under the original decree, Iverson was directed to pay child support for Jacob of $50.00 per month, based upon Iverson’s $500.00 monthly income and his support obligations at that time for two other children.

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Bluebook (online)
535 N.W.2d 739, 1995 N.D. LEXIS 133, 1995 WL 442616, Counsel Stack Legal Research, https://law.counselstack.com/opinion/iverson-v-iverson-nd-1995.