Sorenson v. Slater

2011 ND 216, 806 N.W.2d 183, 2011 N.D. LEXIS 210, 2011 WL 5529825
CourtNorth Dakota Supreme Court
DecidedNovember 15, 2011
DocketNo. 20110015
StatusPublished
Cited by4 cases

This text of 2011 ND 216 (Sorenson v. Slater) 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
Sorenson v. Slater, 2011 ND 216, 806 N.W.2d 183, 2011 N.D. LEXIS 210, 2011 WL 5529825 (N.D. 2011).

Opinion

MARING, Justice.

[¶ 1] Tim Sorenson appealed from an amended judgment awarding primary residential responsibility of his son to Jana Slater, the child’s mother. We reverse and remand for further proceedings, concluding the district court did not exceed the scope of a prior remand but erred in admitting into evidence and relying upon the results of polygraph tests to conclude Sorenson had committed domestic violence.

I

[¶ 2] Sorenson and Slater, who were never married, had a child together in May 2008. The child initially lived with Slater, but Sorenson petitioned to establish paternity and sought custody of the child.

[¶ 3] In November 2008, the child suffered a broken clavicle. The parties disputed whether the injury occurred during a weekend visitation with Sorenson or after the child had been returned to Slater. The emergency room doctor who treated the child filed a report with social services, resulting in investigations into the incident by social services and law enforcement. Sorenson and Slater both submitted to polygraph examinations as part of the criminal investigation. No criminal charges were filed, but social services recommended that Sorenson and Slater attend parenting classes. See Sorenson v. Slater, 2010 ND 146, ¶ 3, 786 N.W.2d 739.

[¶ 4] In September 2009, following a two-day trial, the district court issued its order awarding primary custody to Soren-son, with reasonable visitation to Slater. The court’s order included findings of fact on each of the best interests factors under N.D.C.C. § 14-09-06.2(1). The court determined that the best interests of the child favored custody with Sorenson, finding that Sorenson’s home environment was more stable and organized than Slater’s. The results of the polygraph examinations were not introduced into evidence at the trial. On the issue of domestic violence, the court’s finding, in total, was: “This is [185]*185not an issue.” Sorenson, 2010 ND 146, ¶ 5, 786 N.W.2d 739.

[¶ 5] Slater appealed to this Court, which reversed the judgment and remanded. Id. at ¶ 14. A majority of this Court concluded that the district court’s findings of fact on two of the best interests factors were clearly erroneous, that the findings on two factors did not adequately explain the court’s rationale, that the court had failed to acknowledge testimony it had received on some of the factors, and that the findings were sparse and conclusory. Id. at ¶¶ 9-10. The majority also concluded that the district court had applied the wrong version of the statute setting out the best interests factors. Id. at ¶ 11. The Court therefore reversed the judgment awarding Sorenson custody of the child and remanded to the district court for further findings. Id. at ¶ 14.

[¶ 6] On remand, the district court held a supplemental evidentiary hearing. Slater introduced extensive additional evidence regarding the broken clavicle incident, including testimony by medical experts and the law enforcement officer who had investigated the incident. Over Sor-enson’s objection, the court allowed the investigating officer, who had not conducted the polygraph tests, to testify regarding the results of the polygraph tests. The officer testified Sorenson showed signs of deception on his polygraph exam and Slater did not show signs of deception on her exam. The court did not, however, allow the actual written test results into evidence. The district court issued new findings of fact, expressly relying upon the polygraph results to find that Sorenson had committed domestic violence. The court concluded it was in the best interests of the child for Slater to have primary residential responsibility, with Sorenson to have parenting time on alternating weekends, one evening during the week, and alternating weeks during the summer. An amended judgment was entered, and Sor-enson appealed.

II

[¶ 7] Sorenson contends the district court exceeded the scope of the remand when it held a supplemental eviden-tiary hearing and allowed Slater to present additional evidence on issues other than the two findings of fact which this Court had expressly found to be clearly erroneous. Sorenson argues the court was strictly limited upon remand to merely making new findings of fact on best interests factors (b) and (c) under N.D.C.C. § 14-09-06.2(1), and could not consider additional evidence and make new findings of fact on the other best interests factors, including domestic violence. See N.D.C.C. § 14-09-06.2(l)(j).

[¶ 8] Sorenson has misconstrued the holding in the prior appeal. This Court did not merely determine that two findings of fact were clearly erroneous and remand for the limited purpose of new findings on those isolated factors. A review of the prior opinion in its entirety demonstrates that the holding was much broader. This Court first concluded that the district court’s findings of fact on best interests factors (b) and (c), assessing the parents’ ability to provide food, clothing, and shelter and the parents’ ability to meet the child’s developmental needs, were “not in-accord with the record” and were clearly erroneous. Sorenson, 2010 ND 146, ¶ 8, 786 N.W.2d 739. The Court then noted that the district court’s findings on factors (c) and (d), assessing the child’s development, the stability of the home environment, and the impact of extended family, did not “properly explain the court’s rationale.” Id. at ¶ 9. The Court also noted that the district court’s rationale was “especially unclear, given it failed to acknowl[186]*186edge the testimony it received concerning some of the best interests factors.” Id. The Court then concluded that the district court’s findings in general were “sparse and conclusory and [did] not allow this Court to properly perform its appellate function.” Id. at ¶ 10. Finally, the Court concluded that the district court had applied the wrong version of the best interests factors under N.D.C.C. § 14-09-06.2(1), noting that the best interests factors had been substantively changed and the district court should have applied the prior version of the factors. Sorenson, at ¶ 11. Thus, this Court’s direction that the case be remanded to the district court “for further findings consistent with this opinion,” id. at ¶ 14, was broader than a mere directive to make additional findings on two isolated best interests factors. The district court was directed generally to “make more specific findings, clearly explaining its rationale,” id. at ¶ 10, and to apply the substantively correct version of the best interests factors, id. at ¶ 11.

[¶ 9] This Court has repeatedly held that, when we remand for redetermi-nation of an issue without specifying the procedure to be followed, the district court may decide the issue based on the evidence already before it or may take additional evidence. E.g., Livinggood v. Balsdon, 2006 ND 215, ¶ 5, 722 N.W.2d 716; Frisk v. Frisk, 2006 ND 165, ¶ 17, 719 N.W.2d 332; Kautzman v. Kautzman, 2000 ND 116, ¶ 7, 611 N.W.2d 883. The decision whether to take additional evidence is within the district court’s discretion, and its determination will be reversed on appeal only for an abuse of discretion. Livinggood, at ¶ 5; Frisk, at ¶¶ 17-18, Kautzman, at ¶ 7. This Court did not specify the procedure to be followed upon remand, and it was therefore within the district court’s discretion to decide whether to allow introduction of additional evidence.

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Cite This Page — Counsel Stack

Bluebook (online)
2011 ND 216, 806 N.W.2d 183, 2011 N.D. LEXIS 210, 2011 WL 5529825, Counsel Stack Legal Research, https://law.counselstack.com/opinion/sorenson-v-slater-nd-2011.