Berg v. Berg, 990087.

• Citation: 606 N.W.2d 895,2000 ND 36
• Decision Date: 25 February 2000
• Docket Number: No. 990087.,990087.
• Parties: Weston L. BERG, Plaintiff and Appellant, v. Brenda M. BERG, Defendant and Appellee.
• Court: United States State Supreme Court of North Dakota

606 N.W.2d 895
2000 ND 36

Weston L. BERG, Plaintiff and Appellant,
v.
Brenda M. BERG, Defendant and Appellee

No. 990087.

Supreme Court of North Dakota.

February 25, 2000.

Rehearing Denied March 30, 2000.

606 N.W.2d 898

Shirley A. Dvorak, Moosbrugger, Dvorak & Carter, Grand Forks, for plaintiff and appellant

Leslie Bakken Oliver, Vogel Law Firm, Bismarck, for defendant and appellee.

SANDSTROM, Justice.

[¶ 1] Weston Berg appeals from a divorce judgment. Concluding the district court should have made specific findings to support its award of unsupervised visitation to Brenda Berg and erred in its determination of payment of health insurance premiums, we affirm in part, reverse in part, and remand for further proceedings consistent with this opinion.

I

[¶ 2] Weston and Brenda Berg were married in 1990. Two children were born of the marriage. Weston Berg has a law degree, but quit practicing law in 1989 to farm full-time. Brenda Berg is a registered nurse.

[¶ 3] The parties separated in 1996, and this divorce action was brought in 1997. Each party claimed the other had committed domestic violence during the marriage, and each sought custody of the children. The court found Brenda Berg had committed domestic violence, and awarded custody of the children to Weston Berg. Concluding the presumption against unsupervised visitation under N.D.C.C. § 14-09-06.2(1)(j) had been rebutted, the court awarded extensive unsupervised visitation to Brenda Berg. The court applied the child support guidelines and ordered Brenda Berg to pay child support of $582 per month.

[¶ 4] The court ordered the parties' property divided under their prenuptial agreement. Weston Berg was ordered to pay all costs of visitation and a portion of the expert witness fees, guardian ad litem fees, and Brenda Berg's attorney fees. The court ordered Brenda Berg to pay health insurance premiums for the children if it became available through her employer "at a reasonable cost not to exceed five percent of [her] income."

[¶ 5] Weston Berg filed a timely notice of appeal under N.D.R.App.P. 4(a). The district court had jurisdiction under N.D. Const. art. VI, § 8, and N.D.C.C. § 27-05-06. This Court has jurisdiction under N.D. Const. art. VI, § 6, and N.D.C.C. § 28-27-01.

II

[¶ 6] Weston Berg argues the trial court failed to make specific findings of fact to support its finding that the presumption against unsupervised visitation had been rebutted.

[¶ 7] The trial court specifically found Brenda Berg had committed domestic violence. The court therefore found the presumption created by N.D.C.C. § 14-09-06.2(1)(j) had been triggered, and awarded custody of the children to Weston Berg.

[¶ 8] When the court finds domestic violence has occurred, there is a presumption only supervised visitation will be allowed:

606 N.W.2d 899

If the court finds that a parent has perpetrated domestic violence and that parent does not have custody, and there exists one incident of domestic violence which resulted in serious bodily injury or involved the use of a dangerous weapon or there exists a pattern of domestic violence within a reasonable time proximate to the proceeding, the court shall allow only supervised child visitation with that parent unless there is a showing by clear and convincing evidence that unsupervised visitation would not endanger the child's physical or emotional health.

N.D.C.C. § 14-05-22(3). We have explained the statute places a "heavy burden of proof" upon the perpetrator of domestic violence to show unsupervised visitation will not be harmful to the child:

The statute effectively creates a presumption that unsupervised visitation would be harmful to the child's physical or emotional health, and it allows unsupervised visitation only if the offending parent proves by clear and convincing evidence that it will not be harmful to the child. No burden is imposed on the custodial parent to prove, by expert testimony or otherwise, that unsupervised visitation with the more violent parent will in fact be harmful to the child.

Kluck v. Kluck, 1997 ND 41, ¶ 22, 561 N.W.2d 263. Section 14-09-06.2(1)(j), N.D.C.C., directs that in determining whether the domestic violence presumption has been rebutted, the trial court "shall cite specific findings of fact to show that the custody or visitation arrangement best protects the child and the parent or other family or household member who is the victim of domestic violence." Specific, detailed findings of fact, outlining the clear and convincing evidence and delineating the factors considered by the court are required. See Reeves v. Chepulis, 1999 ND 63, ¶ 14, 591 N.W.2d 791; Smith v. Smith, 534 N.W.2d 6, 11 (N.D.1995).

[¶ 9] In this case, the sole finding of fact supporting the court's award of unsupervised visitation states:

The court finds that there is clear and convincing evidence that unsupervised visitation by Brenda would not endanger the health or physical well being of either minor children [sic] and that supervision is not required in the best interests of the children.

This conclusory finding merely parrots the language of the statute, and falls far short of the specific findings required by the statutory scheme. The trial court does not outline any clear and convincing evidence presented by Brenda Berg, nor does the court set forth the factors it considered in reaching its conclusion. See Simmons v. New Public School District No. Eight, 1998 ND 6, ¶ 6, 574 N.W.2d 561 (notice that merely parroted the language of a statute did not adequately delineate the factual assertions or reasons relied upon to nonrenew a school administrator); Sickler v. Kirkwood, 1997 ND 40, ¶¶ 6-7, 560 N.W.2d 532 (court must articulate reasons for granting N.D.R.Civ.P. 54(b) certification, and merely "parroting the language of Rule 54(b)" is insufficient). As noted in Reeves, at ¶ 14, "[w]e require specific factual findings and conclusions regarding the presumption so we are not left guessing as to the trial court's reasoning for applying or not applying the presumption."

[¶ 10] The trial court's findings must be sufficiently specific and detailed to apprise a reviewing court of the reasoning and rationale for the decision. See, e.g., Emter v. Emter, 1999 ND 102, ¶ 8, 595 N.W.2d 16. When the court's findings do not disclose the basis for the court's conclusions of law and decision, "we cannot properly perform our appellate court function." Emter, at ¶ 8 (quoting Pankow v. Pankow, 371 N.W.2d 153, 157...