Anderson v. Hensrud, 950357

• Decision Date: 29 May 1996
• Docket Number: No. 950357,950357
• Citation: 548 N.W.2d 410
• Parties: David ANDERSON, Plaintiff and Appellant, v. Kimberly HENSRUD, f/k/a Anderson, Defendant and Appellee. Civ.
• Court: North Dakota Supreme Court

Page 410

548 N.W.2d 410

David ANDERSON, Plaintiff and Appellant, v. Kimberly HENSRUD, f/k/a Anderson, Defendant and Appellee.

Civ. No. 950357.

Supreme Court of North Dakota.

May 29, 1996.

Jon J. Jensen, Pearson, Christensen, Larivee, Clapp, Fiedler & Fischer, Grand Forks, for plaintiff and appellant.

Janis M. DeRemer, Grand Forks, for defendant and appellee.

VANDE WALLE, Chief Justice.

David Anderson appealed from a district court order denying his motion for change of custody. Because we conclude that the trial court erred in its interpretation of section 14-09-06.2(1)(j), NDCC, we reverse and remand to the trial court.

In June 1992, David Anderson and Kimberly Hensrud were granted a divorce after two and one-half years of marriage. During the marriage, David and Kimberly had one child, Kelsie, born May 29, 1990. At the time of the original custody determination, the trial court found that both parents were fit and had good relationships with Kelsie. The trial court granted primary physical custody to Kimberly with reasonable visitation to David.

For its custody decision, the trial court primarily relied upon Kelsie's very close relationship with her older sister, Sydney, Kimberly's child from a previous marriage. The trial court determined that it would not be in the best interests of the children to separate them and that such a separation would be inappropriate. In its original memorandum decision, the trial court acknowledged that Kimberly was a recovering alcoholic and had several "dysfunctional relationships with men," but the trial court recognized that Kimberly was "attempting to obtain friends who will not abuse her physically, mentally, sexually, or emotionally." The trial court cautioned that Kimberly's continued custody would depend upon her ability "to remain sober and to establish relationships that are not destructive, either to herself or that would endanger the mental or physical health of Kelsie."

In August 1995, David moved for a modification of custody. David argued that violence allegedly committed by Kimberly upon men with whom she had relationships triggered the domestic violence presumption under section 14-09-06.2(1)(j), NDCC. The statute provides that if the court "finds credible evidence that domestic violence has occurred, this evidence creates a rebuttable presumption that a parent who has perpetrated domestic violence may not be awarded sole or joint custody of a child." To overcome the presumption, the violent parent must prove "by clear and convincing evidence that the best interests of the child require that parent's participation as a custodial parent." N.D. Cent.Code § 14-09-06.2(1)(j) [emphasis added]; Bruner v. Hager, 547 N.W.2d 551 (N.D.1996). David asserted that, absent Kimberly's proof of clear and convincing evidence that circumstances require that she maintain custody of Kelsie, custody should be transferred to him.

On appeal, findings on matters of child custody, including the decision to modify an original custodial placement, are findings of fact which we will not reverse unless clearly erroneous. N.D.R. Civ. P. 52(a); McDonough v. Murphy, 539 N.W.2d 313 (N.D.1995); Heck v. Reed, 529 N.W.2d 155 (N.D.1995). A finding of fact is clearly erroneous "if it is induced by an erroneous view of the law, if no evidence exists to support it, or if the reviewing court, on the entire evidence, is left with a definite and firm conviction that a mistake has been made." Heck, 529 N.W.2d at 159. The issues on this appeal require us to interpret section 14-09-06.2(1)(j), NDCC, and determine how it is to be properly applied. The interpretation of a statute is a question of law, which we fully review on appeal. Id. at 160.

The trial court acknowledged that this was not an initial custody determination. Unlike an initial custody determination in which the trial court considers only the best interests and welfare of the child, a motion to modify custody requires a two-step analysis. Van Dyke v. Van Dyke, 538 N.W.2d 197 (N.D.1995). First, the trial court must determine whether there has been a significant change in circumstances since the original custodial placement. McDonough, supra. If there has been a significant change in circumstances, then the trial court must determine whether the significant change compels, in the child's best interests, a change in custody. Id. The two-step analysis reflects the "doctrinal aversion to changing the custody of a happy child who has been living with one parent for a substantial time." Alvarez v. Carlson, 524 N.W.2d 584, 590 (N.D.1994). Here, the trial court articulated what it perceived to be competing considerations in this case: the context of a modification proceeding which presumes that the original custodial placement was correct, and the statutory presumption against awarding custody to a perpetrator of domestic violence absent circumstances which require that the violent parent receive custody.

Competing considerations may exist, but the statutory presumption against awarding custody to a perpetrator of domestic violence is a presumption which can be overcome only by clear and convincing evidence that other circumstances require the child be placed with the violent parent. Owan v. Owan, 541 N.W.2d 719 (N.D.1996). It applies over a presumption that the original custodial placement was correct, a presumption which may be overcome simply by proving by credible evidence that its nonexistence is more probable than its existence. N.D.R. Evid. 301(a). Furthermore, if presumptions are inconsistent, the presumption applies that is founded upon weightier considerations of policy. N.D.R. Evid. 301(b). In view of the legislative history surrounding section 14-09-06.2(1)(j), NDCC, the reasons for its enactment, and decisions such as Heck v. Reed, 529 N.W.2d 155 (N.D.1995), there is no doubt that the presumption against awarding custody of a child to a violent parent is founded upon weightier considerations of policy than is a presumption that the original custodial placement was correct.

But, the trial court avoided the apparent conflict by determining that domestic violence did not exist in this case. Of course, a court does not reach the consideration of the best interest factors, which includes the domestic violence presumption, unless the court first finds as a condition precedent a significant change in circumstances. Wright v. Wright, 431 N.W.2d 301, 304 (N.D.1988). In this instance, the trial court discussed the competing considerations without specifically finding whether a change in circumstances exists. Because the trial court's determination was based upon an erroneous interpretation of the statute, we reverse and remand to the trial court for further proceedings consistent with this opinion. Should the trial court determine that domestic violence took place, we believe that such an occurrence following the original custody decree constitutes a change warranting consideration of the best interest factors under section 14-09-06.2, NDCC, with evidence of domestic violence being the paramount factor. Bruner v. Hager, 547 N.W.2d 551 (N.D.1996) [referring to evidence of domestic violence as the paramount factor].

There was testimony offered that violent conduct occurred between Kimberly and two men with whom she dated and, arguably, resided. The trial court found that the domestic violence presumption did not apply to Kimberly because the physical harm was not directed at a parent or child. We believe that the trial court's reading of the pertinent statutes is too narrow. Section 14-09-06.2(1)(j), NDCC, directs us to section 14-07.1-01, NDCC, for the definition of "domestic violence." "Domestic violence" includes "physical harm, bodily injury, ... assault, or the infliction of fear of imminent physical harm, bodily injury, ... or assault, not committed in self-defense, on ... family or household members." N.D. Cent.Code § 14-07.1-01(2). Section 14-07.1-01(4), NDCC, defines "family or household member," to include, in addition to a parent or child, "persons who are in a dating relationship," or "persons who are presently residing together or who have resided together in the past."

In Heck v. Reed, 529 N.W.2d 155, 163 (N.D.1995), we interpreted that, by choosing the term "family or household member" when defining domestic violence, the legislature intended the presumption to be triggered "whenever violence is directed at any member of a household or family...." See also Engh v. Jensen, 547 N.W.2d 922 (N.D.1996) [recognizing that a lack of violence toward the children fails to rebut the presumption]; Bruner v. Hager, 534 N.W.2d...