Sisk v. Sisk

2006 ND 55, 711 N.W.2d 203, 2006 N.D. LEXIS 64, 2006 WL 786939
CourtNorth Dakota Supreme Court
DecidedMarch 29, 2006
Docket20050232
StatusPublished
Cited by9 cases

This text of 2006 ND 55 (Sisk v. Sisk) 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
Sisk v. Sisk, 2006 ND 55, 711 N.W.2d 203, 2006 N.D. LEXIS 64, 2006 WL 786939 (N.D. 2006).

Opinions

MARING, Justice.

[¶ 1] Stewart Sisk appeals from an amended judgment modifying custody and visitation and awarding attorney’s fees. We affirm.

I

[¶ 2] Stewart and Tammi Sisk were divorced in 2003. Stewart remained in North Dakota, and Tammi moved to Oklahoma. By stipulation, Stewart received physical custody of the parties’ three minor children, and the judgment provided Tammi was to have “reasonable and liberal visitation as agreed upon [bjetween the parties and the minor children” and “reasonable access to the [children] by written, telephonic, and electronic means.”

[¶ 3] Tammi had little physical or verbal contact with the children during the eighteen months following the divorce. The reasons for this lack of contact are in dispute, and each party blames the other. However, Tammi sent occasional cards and gifts diming this time. She eventually sought visitation and began occasionally calling the children. Although both parties acknowledge Stewart would offer the phone to the children when Tammi called, the children often refused to speak to their mother. When this happened, Stewart did not require or encourage the children to talk to their mother. Other times Tammi called to find Stewart had forwarded the home telephone to his cellular telephone, thus making it difficult or impossible for her to speak to the children. Tammi also requested visitation over several weekends and holidays, but the children declined and Stewart did not require their participation.

[¶ 4] In July 2004, Tammi moved for structured visitation. Tammi and Stewart then agreed Tammi would have a ten-day visitation with the children in North Dakota in August 2004. Although Stewart says he made the children available to their mother, Stewart did not encourage or require them to cooperate when they resisted or refused to participate in the visitation. The record also shows Stewart involved third parties at a local church during the August visitation. Tammi viewed involvement of those people as willful interference with her visitation. Thereafter, Tammi continued with her motion for structured visitation.

[¶ 5] A hearing was held before the trial court on February 2, 2005. Following the hearing, the trial court issued its interim order. The trial court ordered a weekend visitation between Tammi and the children, awarded Tammi $8,904 in attorney’s fees for having to bring the motion, awarded Tammi $793.91 for transportation costs for the failed August visit, and ordered counseling be arranged for the children and both parents. The trial court also stated it would issue a final memorandum and order at a later date. On February 16, 2005, Stewart objected to the award of [206]*206attorney’s fees on the basis that Tammi had not requested attorney’s fees in her initial motion. Tammi then moved for attorney’s fees under N.D.C.C. § 14-09-24. On June 6, 2005, the trial court filed a supplemental memorandum and order relating to summer visitation. The trial court awarded Tammi a month of visitation, starting July 10 and ending August 7, with the first ten days in North Dakota and the remainder of the time in Oklahoma. On June 20, 2005, the trial court entered a memorandum and order denying Stewart’s motion to reconsider, which stated Stewart was “willfully and persistently denying visitation rights” and awarded attorney’s fees under N.D.C.C. § 14-09-24. The trial court modified the amount it had awarded in its interim order downward to $7,300, but kept the $793.91 award for travel expenses.

[¶ 6] Stewart appeals, claiming the evidence does not support the conclusion he deliberately and persistently interfered with Tammi’s visitation, the trial court’s award of attorney’s fees was improper, and the trial court’s chastisement of him on the record exhibited bias that Stewart claims deprived him of a fair hearing. Stewart does not challenge the removal of the provision from the original judgment that granted the minor children a role in establishing visitation.

II

[¶ 7] The crux of Stewart’s first and second arguments is that there is not sufficient evidence to support the trial court’s determination he unlawfully interfered with Tammi’s visitation. Stewart asks that we vacate the trial court’s judgment with regard to visitation, set aside the assessment of attorney’s fees, and remand the case to a different judge so that a plan for reconciliation through the use of professional counselors can be established. Tammi argues structured visitation was necessary because Stewart deliberately and intentionally interfered with her right to visitation with her children. Further, she argues such “willful and persistent denial of visitation rights” entitles her to attorney’s fees under N.D.C.C. § 14-09-24. See Sweeney v. Sweeney, 2005 ND 47, ¶ 12, 693 N.W.2d 29.

[¶ 8] A trial court’s determinations regarding visitation are findings of fact that are not upset on appeal unless they are determined to be clearly erroneous. Eberhardt v. Eberhardt, 2003 ND 199, ¶ 19, 672 N.W.2d 659.

A

[¶ 9] Stewart argues the evidence does not support the trial court’s determination that he willfully and deliberately interfered with visitation.

[¶ 10] First we address Stewart’s assertion that the divorce decree’s language somehow meant he need not work towards facilitating visitation. The parties January 30, 2003, divorce decree stated: “[Tammi] is granted reasonable and liberal visitation as agreed upon [b]etween the parties and the minor children.” Stewart argues this language allowed the children to essentially veto any proposed visitation they did not agree with.

[¶ 11] To include such language in the divorce decree was error. In Barrett v. Barrett, the Minnesota Court of Appeals dealt with a divorce decree containing similar language and stated that, while a child’s choice when determining visitation, particularly when the child is of a certain age, should be given some consideration:

[T]his consideration does not permit a court to delegate to the children its role of determining an appropriate visitation schedule or the role of the custodial [207]*207parent to make specific arrangements to comply with that schedule. Here, the trial court’s order not only removes responsibility from those who should bear it but puts the children’s welfare in jeopardy by demanding regular expression of their choices and their singular responsibility to determine what visits will occur. It is not in the children’s best interest to become bargaining agents between their parents in working out arrangements for each visitation.

Barrett v. Barrett, 394 N.W.2d 274, 279 (Minn.App.1986).

“While there is nothing wrong with the children being heard regarding their wishes, our law proceeds on the assumption that they are nevertheless children and, thus, more interested in the desire of the moment than in considering the long range needs for the development of a healthy relationship with both parents where that is possible.”

In the Matter of the Marriage of Kimbrell, 34 Kan.App.2d 413, 119 P.3d 684, 693 (2005) (quoting Ellis v. Ellis, 840 So.2d 806, 813 (Miss.App.2003)).

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Bluebook (online)
2006 ND 55, 711 N.W.2d 203, 2006 N.D. LEXIS 64, 2006 WL 786939, Counsel Stack Legal Research, https://law.counselstack.com/opinion/sisk-v-sisk-nd-2006.