Taylor v. Taylor

970 N.W.2d 209

Leah Grace TAYLOR, Plaintiff and Appellee

v. Aaron James TAYLOR, Defendant and AppellantandState of North Dakota, Statutory Real Party in Interest

No. 20210214

Supreme Court of North Dakota.

FILED FEBRUARY 18, 2022

Olivia A, Jureidini, Grand Forks, ND, for plaintiff and appellee; submitted on brief.

Benjamin B. Freedman, Fargo, ND, for defendant and appellant.

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 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:

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, 891 N.W.2d 358 (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, 837 N.W.2d 342.

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 "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" "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...