Kluck v. Kluck

1997 ND 41, 561 N.W.2d 263, 1997 N.D. LEXIS 62, 1997 WL 124245
CourtNorth Dakota Supreme Court
DecidedMarch 20, 1997
DocketCivil 960100
StatusPublished
Cited by39 cases

This text of 1997 ND 41 (Kluck v. Kluck) 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
Kluck v. Kluck, 1997 ND 41, 561 N.W.2d 263, 1997 N.D. LEXIS 62, 1997 WL 124245 (N.D. 1997).

Opinion

MESCHKE, Justice.

[¶ 1] Marcia Kluck appealed a divorce decree placing custody of their two children with Roger Kluck, dividing marital property, and ordering child and spousal support. We affirm in part, reverse in part, and remand for further proceedings.

[¶ 2] Roger and Marcia married in 1982. They have two children: Jennifer, bom in 1985, and Jordan, born in 1991. The marriage was turbulent, and the parents separated on several occasions. They testified to frequent incidents of domestic abuse. Marcia characterized Roger as the principal aggressor, while Roger claimed he acted to defend himself and the children from Marcia’s violent outbursts.

[¶ 3] Marcia suffers from mental illness, and has been diagnosed with bi-polar disorder, personality disorder, manic depression, and post-traumatic stress syndrome. Marcia has occasionally exhibited violent and suicidal behavior, and has been hospitalized often.

[¶ 4] In December 1994 Roger sued for divorce. The trial court’s interim order gave Roger temporary custody of the children and use of the family home. Each parent was restrained from harassing the other. Because Marcia repeatedly filed baseless reports of child abuse against Roger during his temporary custody, the trial court held Marcia in contempt.

[¶ 5] After trial, the court found both parties had committed domestic violence, but *266 Marcia’s had been “significantly greater.” The court therefore applied the statutory presumption against placing custody -with the perpetrator of domestic violence, see NDCC 14-09-06.2(l)(j), and placed custody of the children with Roger. The court authorized supervised visitation with Marcia. The court also divided the marital property, ordered Roger to pay Marcia spousal support of $400 per month, and ordered her to pay him child support of $148 per month. Marcia appealed.

I. EXPERT TESTIMONY

[¶ 6] Marcia argues that the trial court erred in allowing the testimony of Dr. Jonathan Douglas, who had conducted a custody evaluation ordered under NDCC 14-09-06.3. Marcia contends Dr. Douglas was not qualified to give an expert opinion on child custody.

[¶ 7] Expert testimony is admissible whenever specialized knowledge will assist the trier of fact:

If scientific, technical, or other specialized knowledge will assist the trier of fact to understand the evidence or to determine a fact in issue, a witness qualified as an expert by knowledge, skill, experience, training, or education, may testify thereto in the form of an opinion or otherwise.

NDREv 702. Whether a witness is qualified as an expert and whether the testimony will assist the trier of fact are decisions largely within the sound discretion of the trial court. State v. Trosen, 547 N.W.2d 735, 739 (N.D. 1996); Horstmeyer v. Golden Eagle Fireworks, 534 N.W.2d 835, 837 (N.D.1995). The trial court’s decision to admit expert testimony will not be overturned on appeal unless the court has abused its discretion. Trosen, 547 N.W.2d at 739; Horstmeyer, 534 N.W.2d at 837. As we said in Anderson v. A.P.I. Co., 1997 ND 6, 559 N.W.2d 204, and State v. Carlson, 1997 ND 7, 559 N.W.2d 802, Evidence Rule 702 envisions generous allowance of the use of expert testimony if the witness is shown to have some degree of expertise in the relevant field.

[¶ 8] Marcia contends Dr. Douglas was not qualified to conduct the custody evaluation because he was not licensed in North Dakota and because his education and training were in adult clinical psychology, not child psychology. Dr. Douglas testified he had a Masters degree and Ph.D. in adult clinical psychology, with “some training as well in the diagnosis and treatment of children.” As part of his training, Dr. Douglas did a three-month internship at the Regional Children’s Centre in Windsor, Ontario. When he did this custody evaluation, Dr. Douglas was practicing as a clinical psychologist at the North Central Human Service Center under a license exemption that allowed him to practice under the supervision of another doctor until he received his North Dakota license.

[¶ 9] Evidence Rule 702 does not require licensure in a particular field, or licen-sure in the court’s jurisdiction, to qualify as an expert. Anderson, 1997 ND 6, 559 N.W.2d 204; Carlson, 1997 ND 7, 559 N.W.2d 802; Oberlander v. Oberlander, 460 N.W.2d 400, 402 (N.D.1990). Rather, as those opinions explain, it is the witness’s actual qualifications that count.

[¶ 10] Nor does Dr. Douglas’s lack of more training in child psychology prevent his testimony here. Dr. Douglas has a doctorate in adult clinical psychology, with some training in child psychology. An expert need not be a specialist in a highly particularized field if his knowledge, training, education, and experience will assist the trier of fact. See, e.g., Anderson, 1997 ND 6, 559 N.W.2d 204 (specialist in environmental engineering could testify about his perceptions of medical articles he had read to research asbestos-caused illnesses); In re Estate of Aune, 478 N.W.2d 561, 563-564 (N.D.1991) (trial court did not abuse its discretion in allowing decedent’s physician to testify about insane delusions). An educated and experienced psychologist should be able to qualify as an expert to testily about child custody factors.

[¶ 11] In April 1995, Marcia stipulated the custody evaluation would be done by Dr. Douglas. Dr. Douglas filed his report with the court in June 1995, and counsel for each parent received a copy. Marcia made no objections to the report or to Dr. Douglas’s *267 qualifications until he testified at trial in September 1995. Her sudden objections to his qualifications came too late.

[¶ 12] Marcia also contends that Dr. Douglas was unqualified to give an expert opinion on custody because he was not familiar with the statutory factors affecting the legal determination of custody and because he had a potential conflict of interest and was biased against Marcia. While these aspects may have affected the weight of his opinion, they go to his credibility, not to admissibility of his evidence. Horstmeyer, 534 N.W.2d at 837; Victory Park Apartments, Inc. v. Axelson, 367 N.W.2d 155, 163 (N.D.1985). We conclude that the trial court did not abuse its discretion in allowing Dr. Douglas to testify as an expert on custody.

II. CUSTODY

[¶ 13] Marcia contends the trial court erred in finding she had committed significantly greater domestic violence than Roger and in applying the statutory presumption against placing custody with her. We disagree.

[¶ 14] A trial court’s custody decision is a finding of fact that we will not reverse on appeal unless it is clearly erroneous. Temes v. Temes, 555 N.W.2d 355, 357 (N.D.1996); Kraft v. Kraft,

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Bluebook (online)
1997 ND 41, 561 N.W.2d 263, 1997 N.D. LEXIS 62, 1997 WL 124245, Counsel Stack Legal Research, https://law.counselstack.com/opinion/kluck-v-kluck-nd-1997.