Bruner v. Hager

• Decision Date: 27 July 1995
• Docket Number: No. 940322,940322
• Citation: 534 N.W.2d 825
• Parties: Kevin BRUNER, Plaintiff and Appellee, v. Michelle HAGER, f/k/a Michelle Jaeger, Defendant and Appellant. Civ.
• Court: North Dakota Supreme Court

Page 825

534 N.W.2d 825

Kevin BRUNER, Plaintiff and Appellee, v. Michelle HAGER, f/k/a Michelle Jaeger, Defendant and Appellant.

Civ. No. 940322.

Supreme Court of North Dakota.

July 27, 1995.

Richard B. Baer (argued), Bismarck, for plaintiff and appellee.

Thomas M. Tuntland (argued), Mandan, for defendant and appellant.

MESCHKE, Justice.

Michelle Hager appealed a decree placing primary custody of her son, Dillon Bruner, with Kevin Bruner, his father. We reverse and remand for more specific findings on domestic violence and for a redetermination of custody.

Kevin Bruner and Michelle Hager moved in together in early 1990, never married, and lived together for nearly three years. When they began, Michelle had three children from her prior marriage, and Kevin had a child from a prior relationship. On September 16, 1991, Michelle gave birth to Dillon, their son.

In February 1993, Kevin moved out and sued Michelle for custody of Dillon. Michelle also sought custody with child support. Kevin obtained interim primary custody of Dillon but, in February 1994, the trial court modified it to equalize temporary physical custody of Dillon between his parents on alternating weeks. After trial in August 1994, the trial court scheduled visitation for Michelle and placed the primary physical custody of Dillon with Kevin.

On appeal, Michelle argues that the trial court erred "in failing to find that [Kevin] was the perpetrator of domestic violence thereby giving rise to a presumption that he should not be awarded joint or sole custody" and "in awarding him custody without finding by clear and convincing evidence that the best interest of the child required his participation as a custodial parent." We agree with Michelle's arguments.

We affirm a trial court's custody decision, a finding of fact, unless the court clearly erred. Heck v. Reed, 529 N.W.2d 155, 159 (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." Id. Here, faced with evidence of Kevin's abusiveness, the trial court minimized it, did not expressly recognize the statutory presumption against placing custody with a violent parent, and did not consider the need for clear and convincing evidence to overcome the presumption against Kevin's custody.

Michelle testified that her life with Kevin "was a rocky relationship from the beginning," and she described four instances of Kevin's violent behavior towards her:

The first time was a black eye at his parent's place. We had been out drinking. He was upset that I was talking to somebody else. I was trying to talk to Kevin but he wouldn't accept it as that. He told everybody I hit my own eye on the gun scope.

. . . . .

.... There was a time before the black eye though.... He wouldn't let me go and he had ripped my shirt because I had tried to get away. He wouldn't let me get away and we had a confrontation there, and the third time was when we came home, he told me to settle down and tried to go out the door and he picked me up and threw me on the floor and sat on top of me. The last time was in May.

.... The eleven year old was fighting with the eight year old over a package and he grabbed the eleven year old by the shoulder and neck together and I told him to let go of him, and then I went out and pushed him away from him. After I pushed him away from my son, he hit me and I got upset and I called the cops, and as soon as I called the cops, he took off.

Michelle, Kevin, and other witnesses also described Kevin's threatening behavior and repeated violence towards the mother of Kevin's first child, besides toward an acquaintance, a relative, and Michelle's new boyfriend.

Kevin reluctantly admitted three instances of his violence towards Michelle: "[S]he slapped me and ... I slapped her back." "[T]hen one time during deer hunting we were drinking and we had gotten into an argument or whatever it was, about the same thing there too." "Yes, when I had slapped her, I ruptured her eardrum, I guess.... I don't know if I blackened [her eye] or she did it herself, or what."

The most relevant part of the law governing placement of custody directs:

In awarding custody or granting rights of visitation, the court shall consider evidence of domestic violence. 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. This presumption may be overcome only by clear and convincing evidence that the best interests of the child require that parent's participation as a custodial parent.

NDCC 14-09-06.2(1)(j) (part). A connected statute defines domestic violence as "physical harm, bodily injury, assault, or the infliction of fear of imminent physical harm, bodily injury, or assault, not committed in self-defense, on the complaining family or household members." NDCC 14-07.1-01(2). A rule of evidence explains "the presumption substitutes for evidence of the existence of the fact presumed until the trier of fact finds from credible evidence that the fact presumed does not exist." NDREv 301(a). However, the statute on custodial factors directs, at NDCC 14-09-06.2(1)(j), that the presumption can be "overcome only by clear and convincing evidence" that the best interests of the child "require" placement with the violent parent.

In its decision, the trial court made minimal findings about Kevin's "abusive" conduct and improperly compared it to Michelle's disturbed, but non-violent, conduct:

The primary problem in [Kevin]'s life is his explosive temper. It has been satisfactorily shown to the Court that in the past, he has become abusive in certain situations. These always appeared to be related to drinking or the use of drugs, but all those actions seem to have terminated a few years back....

[Michelle] has exhibited substantial problems as well in the past. She has in the past had problems with depression, food disorders and because of the feeling of low self-esteem, has sought out reinforcement from other men on a regular basis.

In the findings of fact, the trial court excused Kevin's "abusive" behavior as past, minimal, and not directed towards his son:

13. ... [Kevin]'s association with drugs has terminated some years ago. Although [Kevin] does use alcohol, his use of it is minimal at this time.

14. That Dr. Hanlon's report on Kevin does not give reason for any concern regarding Kevin's use of drugs, alcohol or his ability to parent this child.

15. That there is no evidence that Kevin is or has been abusive to Dillon in any way, or placed him in harm's way.

These findings are similar to ones we have concluded are insufficient to rebut the presumption against custody by a violent parent. Heck v. Reed, 529 N.W.2d 155. The findings are insufficient here, too.

The finding that Kevin did not abuse Dillon doesn't rebut the presumption. "If the legislature had intended a distinction be drawn between the adverse impact of the violence directed at a parent but not a child, it would not have defined 'domestic violence' as harm to family and household members, but would have used a more limiting phrase such as 'child abuse.' " Id. at 163. As Justice Levine amply explained in Heck v. Reed, the fact that a parent has not abused the child, only the child's other parent, does not avoid the effect of the presumption.

The trial court seemed to blame Michelle more for her non-abusive conduct:

That Michelle has had problems as well such as depression, food disorders (Bul[i]mia Nervosa), and low self-esteem. She has a history of seeking out other men for reassurance, e.g. her first marriage ended because of her relationship with at least one other man. Her relationship with [Kevin] included another man. Her counsellor Mr. Greg Arbach has described her prognosis as guarded.

The trial court ordered separate counselling for Michelle and Kevin as a common solution for their divergent misbehaviors. We pointed out in Heck v. Reed, 529 N.W.2d at 165 n. 6: "Although treatment is not a fail-safe...