Malcolm R. Peek v. Kimberly J. Berning

Summary

The Supreme Court of North Dakota reviewed a child-custody judgment awarding the unmarried parents joint legal and rotating physical custody. The court affirmed the exclusion of the father's expert opinion but reversed and remanded because the trial court had not made definitive findings that the parents could communicate and cooperate sufficiently for rotating custody to serve the child's best interests.

Holdings

1. A rotating physical-custody arrangement requires specific findings that the parents can communicate and cooperate sufficiently to set aside their differences and ensure the arrangement serves the child's best interests. Because the district court did not make definitive findings on the parents' ability to cooperate and communicate, the rotating-custody award was reversed and remanded.
2. The district court did not clearly err in finding that most best-interests factors favored neither parent, in declining to apply the domestic-violence presumption, or in treating Peek's alleged false allegations as a factor not favoring him.
3. The district court did not abuse its discretion by excluding the expert's opinions because Peek's supplemental disclosure was not seasonable and the exclusion did not materially prejudice him.

Questions Presented

1. Whether the district court clearly erred by awarding joint physical and legal custody under a rotating physical-custody schedule without making specific findings that the parents could communicate and cooperate sufficiently to protect the child's best interests.
2. Whether the district court clearly erred in its evaluation of the statutory best-interests custody factors, including the domestic-violence presumption and the effect of Peek's allegedly false allegations.
3. Whether the district court abused its discretion by excluding the opinion testimony of Peek's expert because the expert disclosure was not seasonable under North Dakota Rule of Civil Procedure 26(e).

Disposition

reversed_and_remanded