Brown v. Brown, 990070.

• Decision Date: 20 October 1999
• Docket Number: No. 990070.,990070.
• Citation: 600 N.W.2d 869,1999 ND 199
• Parties: Michael A. BROWN, Plaintiff and Appellee, v. Letitia L. (Tish) BROWN, Defendant and Appellant.
• Court: North Dakota Supreme Court

600 N.W.2d 869

1999 ND 199

Michael A. BROWN, Plaintiff and Appellee, v. Letitia L. (Tish) BROWN, Defendant and Appellant.

No. 990070.

Supreme Court of North Dakota.

October 20, 1999.

Kent M. Morrow of Severin, Ringsak & Morrow, Bismarck, N.D., for plaintiff and appellee.

Deborah J. Carpenter of Carpenter Law Offices, Bismarck, N.D., for defendant and appellant.

SANDSTROM, Justice.

[¶ 1] Letitia Brown appeals from the order of the South Central Judicial District Court denying her motion for a new trial, or in the alternative, for relief from judgment. She asserts the district court erred in its award of custody of the parties' son to Michael Brown, its distribution of marital property, and its denial of her post-trial motions and request for stay. Because the district court's custody award and marital property distribution were not clearly erroneous, we affirm.

I

[¶ 2] Letitia and Michael Brown were married in 1992 in Bismarck. One child was born to the marriage in 1994. Michael Brown filed an action for divorce on January 14, 1998, and filed a motion for an interim order and request for emergency hearing to have Letitia Brown removed from the marital home and to have interim custody placed in him. The court denied the motion, but ordered Letitia Brown undergo a drug and alcohol evaluation. Her evaluation showed insufficient evidence to establish she had an alcohol abuse or dependence problem.

[¶ 3] Both parties were employed outside the home during the course of the marriage, and both are currently employed. Michael Brown works every other weekend and three evenings each week plus overtime. He has an associate degree. Letitia Brown has no education beyond high school.

[¶ 4] After the birth of the parties' son, Letitia Brown spent one to two nights per week in bars, sometimes playing in a dart league. Michael Brown went out to bars one night a week. In 1996 and 1997, Letitia Brown made monthly weekend trips to Fargo to visit her husband's sister.

[¶ 5] Both parties alleged the other had committed domestic violence. During the marriage, Letitia Brown threw a lamp and a shampoo bottle at Michael Brown. He testified she punched him in the head on November 15, 1997. On the same date, Michael Brown reported to the police Letitia Brown had thrown things at him and then pushed him to the ground. Susan Rau, a licensed domestic violence advocate from the Abused Adult Resource Center, testified about bruises on Letitia Brown's body, allegedly caused by Michael Brown on November 15, 1997. In July of 1998, Michael Brown threw a can opener at Letitia Brown's car while she was in it and their son was nearby.

[¶ 6] In addition, the district court found Michael Brown called Letitia Brown derogatory names within hearing range of their son. Michael Brown testified Letitia Brown "trashed" a room in relation to an argument they had.

[¶ 7] Following trial on October 13, 1998, the district court divided the parties' marital property, awarded custody of their son to Michael Brown, and denied Letitia Brown's requests for attorney's fees and spousal support. After trial, Letitia Brown brought a motion for a new trial, or in the alternative, for relief from judgment. She also brought a motion for stay pending resolution of the motions. The district court granted the stay. The district court modified its order with respect to a valuation error, and denied the request for change of custody. Letitia Brown appealed on February 24, 1999, and requested a stay from this Court pending appeal. This Court remanded the matter to the district court for consideration of the stay, and the district court denied the stay.

[¶ 8] Letitia Brown's appeal was timely under N.D.R.App.P. 4(a). The district court had jurisdiction under 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

[¶ 9] Letitia Brown contends the district court erred in awarding Michael Brown custody of their son. She argues she should be awarded custody because of Michael Brown's possible alienation of the child from her, and his acts of domestic violence against her.

[¶ 10] An award of custody is a finding of fact, and this Court will not disturb a custody award unless it is clearly erroneous. Wetzel v. Wetzel, 1999 ND 29, ¶ 7, 589 N.W.2d 889. See N.D.R.Civ.P. 52(a). Under N.D.R.Civ.P. 52(a), a finding of fact is clearly erroneous "only if it is induced by an erroneous view of the law, there is no evidence to support it, or, although there is some evidence to support it, on the entire record we are left with a definite and firm conviction a mistake has been made." Riehl v. Riehl, 1999 ND 107, ¶ 7, 595 N.W.2d 10; McDonough v. Murphy, 539 N.W.2d 313, 316 (N.D.1995).

[¶ 11] Custody decisions are based on the "best interests of the child" standard under N.D.C.C. §§ 14-09-06.1 and 14-09-06.2(1). Reeves v. Chepulis, 1999 ND 63, ¶ 10, 591 N.W.2d 791. The district court has substantial discretion in making a custody determination, but it must consider all of the factors under N.D.C.C. § 14-09-06.2(1)(a)-(m). Id. (citing Severson v. Hansen, 529 N.W.2d 167, 168-69 (N.D.1995)). A separate finding is not required for each statutory factor, but "the court's findings should be stated with sufficient specificity so that we can understand the factual basis for its decision." Reeves, at ¶ 10 (quoting Severson, at 169).

A

[¶ 12] Both parties alleged the other had committed domestic violence during the marriage. Letitia Brown argues the presumption against placing custody with the perpetrator of domestic violence was triggered by Michael Brown's actions, precluding an award of custody to him. See N.D.C.C. § 14-09-06.2(1)(j).

[¶ 13] A district court's evaluation of evidence of domestic violence in a custody decision is governed by subsection (j) of N.D.C.C. § 14-09-06.2(1). Reeves, 1999 ND 63, ¶ 11, 591 N.W.2d 791. This section was amended in 1993, creating a rebuttable presumption against awarding custody to a parent who had perpetrated domestic violence when the court finds "credible evidence that domestic violence has occurred." Id. (quoting 1993 N.D. Sess. Laws ch. 144, § 2). In 1997, the statute was amended again, raising the level of domestic violence required to trigger the presumption. Reeves, at ¶ 11 (citing 1997 N.D. Sess. Laws ch. 147, § 2). The presumption is now triggered when the district court finds "credible evidence that domestic violence has occurred, 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." Reeves, at ¶ 11; Dinius v. Dinius, 1997 ND 115, ¶ 18, 564 N.W.2d 300.

[¶ 14] When triggered, the presumption prevents the abusive parent from obtaining custody of the child, unless the abusive parent proves "by clear and convincing evidence that the best interests of the child require" the abusive parent to take part in or have custody. N.D.C.C. § 14-09-06.2(1)(j); Zuger v. Zuger, 1997 ND 97, ¶ 31, 563 N.W.2d 804; Engh v. Jensen, 547 N.W.2d 922, 924 (N.D.1996).

[¶ 15] In this case, the district court made findings on all 13 best-interests-of-the-child factors under § 14-09-06.2(1). The district court found incidents of domestic violence by both parties, but found a pattern of behavior had not been established, nor were the incidents of sufficient severity to trigger the rebuttable presumption. Letitia Brown seems to argue on appeal that Michael Brown's throwing of the can opener at her car triggered the rebuttable presumption against awarding custody to him. One act of domestic violence can be enough to trigger the statutory presumption, but only when that act causes serious bodily injury. See Reeves v. Chepulis, 1999 ND 63, ¶ 11, 591 N.W.2d 791

; N.D.C.C. § 14-09-06.2(j). The record is devoid of any evidence of a domestic violence incident causing serious bodily injury to either party, or involving the use of a dangerous weapon. See Reeves, at ¶ 11; Dinius v. Dinius, 1997 ND 115, ¶ 18, 564 N.W.2d 300. The can opener incident caused damage only to the front of the hood of Letitia Brown's car and did not hit or injure her. Although Susan Rau testified Letitia Brown claimed her November 15, 1997, bruises were inflicted by Michael Brown, Letitia Brown did not testify about the incident in detail. On the same day her bruises were allegedly inflicted, Michael Brown called the police and reported Letitia Brown had thrown things at him and had pushed him to the ground. Neither party argues that either of these November 15, 1997, domestic violence acts resulted in serious bodily injury.

[¶ 16] Letitia Brown further seems to contend Michael Brown's acts established a pattern of domestic violence sufficient to trigger the rebuttable presumption against awarding custody to him. The record also shows Letitia Brown committed acts of domestic violence toward Michael Brown. The district court found both parties had committed acts of domestic violence, but neither parties' behavior established a pattern of behavior sufficient to trigger the statutory presumption. This finding is supported by the record.

[¶ 17] Evidence of domestic violence that plainly does not trigger the presumption can be considered under the best interest factors contained in N.D.C.C. § 14-09-06.2. Reeves, 1999 ND 63, ¶ 15, 591 N.W.2d 791 (citations omitted). In this case, the district court considered the evidence of domestic violence and found the incidents did not "weigh more heavily in favor of custody placement with either party."

[¶ 18] Letitia Brown also argues Michael Brown was the perpetrator of domestic violence because he called her derogatory names during the marriage. Domestic violence under our statute does not include name-calling. See N.D.C.C. § 14-07.1-01(2).

[¶ 19] Thus, the district court did not err in finding the rebuttable presumption against...