FILED
IN THE OFFICE OF THE
CLERK OF SUPREME COURT
FEBRUARY 18, 2022
STATE OF NORTH DAKOTA
IN THE SUPREME COURT
STATE OF NORTH DAKOTA
2022 ND 39
Leah Grace Taylor, Plaintiff and Appellee
v.
Aaron James Taylor, Defendant and Appellant
and
State of North Dakota Statutory Real Party in Interest
No. 20210214
Appeal from the District Court of Grand Forks County, Northeast Central
Judicial District, the Honorable Jay D. Knudson, Judge.
AFFIRMED.
Opinion of the Court by McEvers, Justice.
Olivia A, Jureidini, Grand Forks, ND, for plaintiff and appellee; submitted on
brief.
Benjamin B. Freedman, Fargo, ND, for defendant and appellant.
Taylor v. Taylor
No. 20210214
McEvers, Justice.
[¶1] Aaron Taylor appeals from the district court’s Findings of Fact,
Conclusions of Law, and Order for Third Amended Judgment modifying his
parenting time, limiting his decisionmaking authority, and finding him in
contempt. We conclude the court did not clearly err in denying Aaron Taylor’s
motion to modify or in granting Leah Taylor’s countermotion. We affirm.
I
[¶2] Aaron and Leah Taylor were married in 2008. They have two minor
children: A.G.T., born in 2008, and L.A.T., born in 2011. The pair divorced
pursuant to a settlement agreement which provided Leah Taylor with primary
residential responsibility of both children, with Aaron Taylor to receive
reasonable parenting time. The divorce judgment was entered in July 2018.
[¶3] In December 2019, the district court issued an order and entered an
amended judgment, finding Aaron Taylor had violated the divorce judgment in
numerous ways, including displaying emotionally abusive behavior toward the
children. The court required Aaron Taylor to complete a chemical dependency
treatment program and subjected him to a graduated parenting time plan. In
June 2020, the court issued another order and entered a second amended
judgment, finding Aaron Taylor had “willfully and persistently violated” the
amended judgment based in part on a pattern of emotionally abusive behavior
toward the children. The second amended judgment provided for a revised
graduated parenting time plan, beginning with Aaron Taylor receiving
supervised visitation1 only.
[¶4] In December 2020, Aaron Taylor moved to modify parenting time,
contending he had completed court-ordered drug and alcohol treatment. Leah
1 We note that although the district court’s order uses the term “visitation,” this opinion utilizes the
term “parenting time” to reflect N.D.C.C. § 14-05-22.
2
Taylor filed a countermotion seeking to eliminate visitation, for sole
decisionmaking authority, and modifying parental rights and responsibilities,
arguing Aaron Taylor’s behavior had detrimentally affected the children.
[¶5] Following an evidentiary hearing, the district court issued an order and
a third amended judgment. The court acknowledged Aaron Taylor had
completed a treatment program, but found Aaron Taylor’s communications
with the children had been “detrimental and devastating to the children’s
mental and physical health and well-being.” The court noted concerns about
Aaron Taylor “disparaging Leah to the children, disparaging Leah to third
parties, sneaking communicative devices to the children, [having]
unauthorized contact with the children through social media and chat rooms,
and involving the children in disputes regarding parenting time.” The court
stated Aaron Taylor’s actions “are against both children’s well-being and are
clearly very harmful to their mental, and emotional health.” The court
concluded Aaron Taylor’s communications were detrimental to the physical
and emotional well-being of the children and temporarily suspended Aaron
Taylor’s in-person visits and telephone contact, again revising the graduated
parenting time plan. Aaron Taylor appeals.
II
[¶6] Aaron Taylor has attempted to appeal from the district court’s order for
third amended judgment. “Interlocutory orders and memorandum opinions are
generally not appealable, but nonappealable interlocutory orders are
reviewable in an appeal from a final judgment.” Lund v. Lund, 2011 ND 53, ¶
5,
795 N.W.2d 318. An attempted appeal from an order for judgment will be
treated as an appeal from a subsequently entered consistent judgment, if one
exists.
Id. A consistent amended judgment was entered in this case, and we
treat the appeal as an appeal from the judgment.
III
[¶7] This Court has previously stated the standard for modification of
parenting time as follows:
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To modify parenting time, the moving party must demonstrate a
material change in circumstances has occurred since entry of the
previous parenting time order and that the modification is in the
best interests of the child. A material change in circumstances is
important new facts that have occurred since the entry of the
previous parenting time order . . . . [W]e recognized that parenting
time between a parent without primary residential responsibility
is presumed to be in the child’s best interests, and a court should
only withhold visitation when it is likely to endanger the child’s
physical or emotional health. We have further recognized that
denying a parent without primary residential responsibility
parenting time with a child is an onerous restriction, such that
physical or emotional harm resulting from the visitation must be
demonstrated in detail before it is imposed. Finally, when
awarding or modifying parenting time the district court may not
rely solely on the child’s wishes in visitation enforcement and
modification actions.
Curtiss v. Curtiss, 2017 ND 60, ¶ 5,
891 N.W.2d 358 (internal citations and
quotations omitted).
[¶8] “It is not the wishes or desires of the parents, but rather the best
interests of the child that are paramount when considering modification of
parenting time.” Curtiss,
2017 ND 60, ¶ 6 (citing Seibold v. Leverington,
2013
ND 173, ¶ 19,
837 N.W.2d 342). Under N.D.C.C. § 14-05-22(2), the district court
must “grant such rights of parenting time as will enable the child to maintain
a parent-child relationship that will be beneficial to the child, unless the court
finds, after a hearing, that such rights of parenting time are likely to endanger
the child’s physical or emotional health.” A court’s decision regarding parenting
time is a finding of fact subject to the clearly erroneous standard of review.
Bredeson v. Mackey,
2014 ND 25, ¶ 5,
842 N.W.2d 860. “A finding of fact is
clearly erroneous if there is no evidence to support it, if the finding is induced
by an erroneous view of the law, or if the reviewing court is left with a definite
and firm conviction a mistake has been made.” Seibold,
2013 ND 173, ¶ 12.
IV
[¶9] Aaron Taylor argues Leah Taylor failed to meet her burden to show his
parenting time would likely endanger the children. He contends Leah Taylor
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“failed to even allege, much less prove, any harm likely to endanger L.A.T. as
a result of Aaron’s parenting time,” and further argues Leah Taylor did not
connect Aaron Taylor’s conduct to any “negative mental or emotional impact”
on A.G.T.
[¶10] Much of the evidence at the hearing was specific to A.G.T., who
demonstrated a more obvious response to Aaron Taylor’s behavior. However,
there was also evidence of behavior directed toward L.A.T. and toward both
children together. The district court found Aaron Taylor’s conduct, “including
denigrating Leah to the children, having unauthorized contact with the
children, sneaking phones to the children, encouraging the children to
download apps so that he could contact them undetected, encouraging the
children to lie to their mother, [and] repeatedly telling the children that any
problems with visitation are because of their mother,” is “most definitely a
danger to his children’s physical or emotional well-being.” The court noted
numerous messages between Aaron Taylor and the children, in violation of the
amended judgment, including:
“. . . bummed I can’t even get one single holiday with you two girls
this year. . . . I’ve gotten zero time with you two and mom doesn’t
care”
“it’s not your fault it’s your mom doesn’t even think of me as your
dad anymore”
“Hey [A.G.T.], I wonder what would happen if you and [L.A.T.] had
a sit-down talk with mom. Me not seeing you two is very unfair
and no one should keep a child away from a parent!”
“Ok sweetheart. . . . I just don’t think mom is gonna (sic) change
unless you and [L.A.T.] or someone take a stand.”
“I just wish mom would understand you two girls are my life and
without you I don’t have anything you know”
“It won’t end sweetheart as your mom wants me to just be someone
you talk on virtual chats with only when she wants it. . . . she
wants me completely out of your lives so whatever she wins I
guess”
“Sorry sweetheart you know if I could I would be there in a
heartbeat but I really think it’s time for you and [L.A.T.] to have a
sit down talk with your mom and tell her what you guys want”
5
“That means I don’t get to spend ANYTIME with you. No this
needs to end. . . . your mom just needs to stop this”
Aaron Taylor also snuck a portion of the second amended judgment to A.G.T.,
with a note stating, “This is so you know . . . that the court doesn’t have to
change it. Your mom and dad can change anytime. This is so you are not lied
to anymore!!” Aaron Taylor messaged L.A.T. online, saying, “I wanted to hurry
get off the call with Kids First as I didn’t want you to say anything about us
communicating on Roblox.”
[¶11] Aaron Taylor made several admissions at the hearing, on both direct and
cross-examination. Aaron Taylor admitted to sneaking A.G.T. a cell phone,
disparaging Leah Taylor, having conversations he should not have had with
his children, and involving the children in parental conflict. Aaron Taylor
admitted his messages put pressure on his children. Aaron Taylor further
admitted to violating the court’s order and that he knew it was a violation of
the court order at the time of the communications. Leah Taylor testified that
L.A.T. “really picks up on the attitudes of anybody around her” and “when
A.[G.T.] would make comments . . . with her angry voice of we can’t see dad
because you are not letting us then L.[A.T.] would take that on and . . . decide
to be . . . mad with A.[G.T.].” Leah Taylor testified Aaron Taylor “is realizing
that L.[A.T.] is a little older now and that he can be using these tactics on her,”
evidenced by Aaron Taylor’s unauthorized communications with L.A.T.
through a chat feature on an online video game. The court found “Aaron’s
behavior is now contributing to serious mental health concerns for the parties’
oldest child, who has been admitted to hospitals and mental facilities over the
last several months due to self-harming and suicidal behavior.” The court
further found Aaron Taylor’s communications “led to A.G.T.’s mental health
decline in December 2020 through January 2021” and Aaron Taylor continued
to exacerbate the problem when he “encouraged his daughter to not take doctor
recommended medication or engage in therapy.” The court found both children
“have responded to Aaron’s belligerent and cantankerous behavior with
depression, suicidal ideation, and anger and aggression directed towards their
mother.”
6
A
[¶12] Aaron Taylor argues the facts of this case are similar to our holding in
Curtiss, 2017 ND 60. He frames the issue as “finding harm to one child, and
then ascribing that harm to a second child without an independent detailed
demonstration.” In Curtiss, the district court recognized the older child
required hospitalization after a visit with his father at the State Penitentiary.
Id. at ¶ 10. However, the younger child was “ambivalent” about the visits and
only “sometimes upset” by them. Id. at ¶ 12. The therapist who testified in
Curtiss stated there was not the same strong correlation of emotional upset
displayed by the younger child. Id. The mother also was not certain whether it
was appropriate for the younger child to go to the State Penitentiary for
visitation. Id. Although the court recognized the children were affected
differently by the visits, we concluded the court clearly erred in finding
continued supervised visitation was not in the younger child’s best interest. Id.
at ¶ 13. We affirmed the court’s order regarding the older child but reversed
the court’s order restricting the father’s visitation with the younger child,
holding the court’s findings were not supported by the record. Id.
[¶13] “A court is generally not required to do a line-by-line best-interest
analysis for each individual child.” Schlieve v. Schlieve,
2014 ND 107, ¶ 25,
846
N.W.2d 733. When the best interest factors are different for each child, such an
analysis is permissible and may be necessary. Curtiss v. Curtiss,
2016 ND 197,
¶ 14,
886 N.W.2d 565. “A district court’s factual findings should be stated with
sufficient specificity to enable this Court to understand the basis for its
decision.” Id. at ¶ 10. Here, the court found A.G.T.’s mental health decline, selfharm, and suicidal ideations were a direct result of Aaron Taylor’s ongoing
behavior. The court further noted several examples of Aaron Taylor’s behavior
that make it likely that Aaron Taylor’s parenting time would result in physical
or emotional harm to L.A.T. The court found Aaron Taylor’s behavior has been
“detrimental and devastating” and “most definitely a danger” to the children’s
health and wellbeing. Unlike Curtiss, the record contains evidence to support
the court’s findings regarding the children generally and for each of the
children individually. We conclude the court did not clearly err in finding
7
physical or emotional harm was likely to result from Aaron Taylor’s parenting
time with the children.
B
[¶14] Aaron Taylor also argues “Leah did not call any medical, mental health,
or other experts to testify” regarding the impact of Aaron Taylor’s behavior on
the children. We have previously held that expert testimony is unnecessary for
a showing that physical or emotional harm is likely to result from parenting
time, and general testimony of a parent may suffice. Hanson v. Hanson, 404
N.W.2d 460, 465 n.2 (N.D. 1987) (expert medical or psychological testimony is
not required to sustain the showing of physical or emotional harm). Sufficient
evidence exists without expert testimony to support the district court’s
findings.
V
[¶15] Aaron Taylor next argues Leah Taylor “failed to show that the
appropriate remedy is suspension or restriction of Aaron’s parenting time.”
Aaron Taylor contends that, even if his conduct has a negative impact on the
children, his “parenting time should be subject only to whatever minimal
restrictions are necessary to prevent harm.”
[¶16] We have stated “visitation between a non-custodial parent and a child is
presumed to be in the child’s best interests and that it is not merely a privilege
of the non-custodial parent, but a right of the child.” Hendrickson v.
Hendrickson, 2000 ND 1, ¶ 21,
603 N.W.2d 896. However, “visitation with a
noncustodial parent may be curtailed or eliminated entirely if it is likely to
endanger the child’s physical or emotional health.” Wilson v. Ibarra,
2006 ND
151, ¶ 10,
718 N.W.2d 568. Visitation should be restricted only upon a showing
by a preponderance of the evidence that unrestricted visitation is likely to
endanger the child’s physical or emotional health.
Id. Complete denial of
visitation to a noncustodial parent is a drastic measure that should be
exercised only under the most compelling of circumstances. Id.
8
[¶17] In Wilson, we reversed the district court order denying the noncustodial
parent any visitation with the child. 2006 ND 151, ¶ 7. We held the court
provided no nexus or link demonstrating how the noncustodial parent’s past
problems would result in physical or emotional harm to the child. Id. at ¶ 14.
We concluded the court’s findings failed to “demonstrate in detail the physical
or emotional harm to the child resulting from any form of visitation” and
provided for no possibility of future visitation regardless of a change in
circumstances. Id. We remanded for more detailed findings that any form of
visitation would result in physical or emotional harm to the child or, in the
alternative, an order attempting supervised visitation before all visitation was
terminated. Id. at ¶ 15.
[¶18] The governing standard in a parenting time dispute is whether allowing
parenting time would be likely to result in physical or emotional harm to the
children. We have already concluded that it would. The record supports the
district court’s findings that parenting time between Aaron Taylor and the
children is likely to result in physical or emotional harm. Unlike Wilson, where
no alternative measures had been previously attempted, the court here
attempted to provide, through the judgment, amended judgment, and second
amended judgment, supervised parenting time between Aaron Taylor and the
children prior to temporarily suspending parenting time. It was only as a result
of Aaron Taylor “consistently” and “willfully” violating the second amended
judgment in ways that were harmful to the children that the court resorted to
a suspension of parenting time. In addition, the third amended judgment
allows for the possibility of future parenting time through the graduated
parenting plan, rather than permanent deprivation of parenting time, so long
as Aaron Taylor abides by the terms of the judgment. We conclude the
temporary suspension of Aaron Taylor’s parenting time is not clearly erroneous
and is supported by the evidence.
VI
[¶19] Aaron Taylor argues the district court erroneously granted Leah Taylor
sole decisionmaking authority.
9
[¶20] A district court’s ruling on decisionmaking is also a finding of fact,
subject to the clearly erroneous standard. Wisnewski v. Wisnewski, 2020 ND
148, ¶ 37,
945 N.W.2d 331. “A parenting plan must include a provision relating
to decisionmaking responsibility, N.D.C.C. § 14-09-30(2)(a), and that
responsibility must be allocated in the best interests of the child, N.D.C.C. §
14-09-31(2).” Dick v. Erman,
2019 ND 54, ¶ 14,
923 N.W.2d 137.
[¶21] Here, the district court ordered Leah Taylor “shall be granted sole
decision-making authority over the children’s education, non-emergency
healthcare, and religion.” Because Aaron Taylor and Leah Taylor could not
agree on an allocation of decisionmaking authority, the court was required to
allocate that authority in the best interests of the children. N.D.C.C. § 14-09-
31(2). The evidence supports the court’s finding that vesting Leah Taylor with
sole decisionmaking authority was in the children’s best interests. For
example, the court found Aaron Taylor tried to discharge A.G.T. from a
treatment facility against medical advice and encouraged her not to comply
with a portion of her treatment. Based on the record in this case, the court did
not clearly err in granting Leah Taylor sole decisionmaking authority.
VII
[¶22] Aaron Taylor finally argues the district court improperly gave Leah
Taylor authority to supervise Aaron Taylor’s future parenting time and
telephone contact.
[¶23] A district court generally cannot delegate to anyone the power to decide
questions of child custody or related issues. Marquette v. Marquette, 2006 ND
154, ¶ 10,
719 N.W.2d 321. This Court “do[es] not encourage the use of
visitation provisions which give the custodial parent total control over the time
and manner of the noncustodial parent’s visitation.”
Id. Only in exceptional
circumstances, and only when the custodial parent demonstrates a willingness
to foster the parent-child relationship between the child and the other parent,
should such provisions be utilized.
Id. This Court has previously upheld
reasonable visitations “conducted at the sole discretion of” the custodial parent.
Wigginton v. Wigginton,
2005 ND 31, ¶ 10,
692 N.W.2d 108; Wolt v. Wolt,
2010
ND 26, ¶ 39,
778 N.W.2d 786 (district court’s decision permitting custodial
10
parent to monitor phone calls between children and noncustodial parent was
not clearly erroneous); but see Paulson v. Paulson, 2005 ND 72, ¶¶ 19-21,
694
N.W.2d 681 (concluding the district court impermissibly delegated authority to
decide visitation to a third party when no finding was made that unrestricted
visitation was likely to endanger the child’s physical or emotional health).
[¶24] We have held visitation provisions controlled by a custodial parent
should be “reserved for the most exceptional of circumstances.” Marquette,
2006 ND 154, ¶ 10. Here, the district court found evidence that Aaron Taylor’s
“cantankerous behavior” and repeated violations of the amended judgment
were “most definitely” a danger to the children’s well-being. Additionally,
Aaron Taylor had previously violated the court’s judgment, amended judgment,
and second amended judgment in a manner that was harmful to the children.
We conclude Aaron Taylor’s continued violations which are harmful to the
children constitute exceptional circumstances warranting the monitoring of
communications and parenting time provisions in the best interests of the
children.
[¶25] This Court also requires the custodial parent “demonstrate[] that he or
she is ‘deeply concerned that the children, for the children’s benefit, maintain
a relationship with’ the noncustodial parent.” Wigginton,
2005 ND 31, ¶ 12.
Leah Taylor testified she “want[s] Aaron to be in his girls’ life,” that “[h]e is
dad” and she respects and honors his parenting. Leah Taylor further testified
regarding potential for a family therapist to “work with Aaron and [Leah] and
the girls.” Leah Taylor also testified she wanted the parties to “work on [their]
relationship” “to make this work for the girls.” Leah Taylor’s testimony
indicates concern for the children’s relationship with Aaron Taylor and
willingness to foster and maintain that relationship.
[¶26] The record contains sufficient evidence for the district court to permit
Leah Taylor to supervise Aaron Taylor’s communications and potential
parenting time with the children. Further, while we do not encourage giving
one parent total control over parenting time, Leah Taylor was not awarded
“complete discretionary authority” over Aaron Taylor’s parenting time. The
Third Amended Judgment provides in part, “Should Aaron violate the
11
restrictions regarding the letters or telephone contact more than twice, Leah
is authorized to end the contract [sic] the children have with Aaron.” Included
with this provision are other court-ordered restrictions should Aaron Taylor
violate the terms of the amended judgment. Any control Leah Taylor has over
Aaron Taylor’s contact is not within her sole discretion; instead, she may end
Aaron Taylor’s contact with the children only if Aaron Taylor “violate[s] the
restrictions regarding the letters or telephone contact more than twice.”
VIII
[¶27] The parties’ remaining arguments are either without merit or
unnecessary to our decision. We conclude the district court’s findings are
supported by the record and we are not left with a definite and firm conviction
a mistake has been made. The court’s order and third amended judgment are
affirmed.
[¶28] Jon J. Jensen, C.J.
Gerald W. VandeWalle
Daniel J. Crothers
Lisa Fair McEvers
Jerod E. Tufte
12
