Summary
The Supreme Court of North Dakota affirmed a district court order denying Lawrence's contempt motion, awarding Delkamp the child tax exemption, and ending Lawrence's responsibility for half of the child's uncovered medical expenses. The court held that the district court did not abuse its discretion by refusing to permit Delkamp to testify telephonically because appropriate safeguards for identity verification and administration of an oath were not in place. A specially concurring opinion discussed the apparent unfairness of allowing Delkamp to cross-examine Lawrence by telephone while denying Lawrence the opportunity to cross-examine her, and a dissent would have reversed for a fundamentally fair proceeding.
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Practice areas
Questions Presented
- Whether the district court abused its discretion by refusing to allow Delkamp to testify telephonically during the contempt hearing.
- Whether Delkamp's statements while cross-examining Lawrence required that Lawrence be permitted to call and cross-examine her as a witness.
Holdings
- N.D.R.Civ.P. 43(a) permits, but does not require, a district court to allow testimony by contemporaneous transmission. Such testimony requires good cause shown in compelling and unexpected circumstances and appropriate safeguards.
- The district court did not abuse its discretion by refusing to allow Lawrence to call Delkamp as a telephonic witness under the circumstances presented.
Key quotations
“Under N.D.R.Civ.P. 43(a), a district court may allow witnesses to testify telephonically. However, the admissibility of telephonic testimony is conditioned on good cause in compelling circumstances and the availability of appropriate safeguards.” (¶ 17)
Factual background
The parties litigated contempt issues concerning payment of their child's eyeglass expenses and the provision of tax forms. Delkamp, who lived in Missouri, was permitted to appear by telephone to avoid the expense of traveling to North Dakota, but she was not placed under oath or otherwise formally called as a witness. After Lawrence testified, his counsel sought to call Delkamp telephonically so Lawrence could cross-examine her; the court denied the request because no suitable person was present with Delkamp to verify her identity and administer an oath.
Procedural history
This was Lawrence's fifth appeal in the parties' child custody and support litigation. In the prior appeal, the North Dakota Supreme Court reversed and remanded several orders and directed the district court to hold a hearing on the parties' contempt motions. After the remand hearing, the district court entered its March 9, 2007, order, and Lawrence appealed. The Supreme Court affirmed.