Demers v. Demers, 20050184.

Decision Date29 June 2006
Docket NumberNo. 20050184.,20050184.
Citation2006 ND 142,717 N.W.2d 545
PartiesSue Ann DeMERS, Plaintiff and Appellant v. Jeffrey Wayne DeMERS, Defendant and Appellee.
CourtNorth Dakota Supreme Court

Alan Sorensen, Bulie Law Office, Grand Forks, N.D., for plaintiff and appellant.

Michael S. McIntee, McIntee Law Firm, Bottineau, N.D., for defendant and appellee.

KAPSNER, Justice.

[¶ 1] Sue DeMers appeals from a divorce judgment awarding Jeff DeMers primary physical custody of the parties' two children, awarding her spousal support, and distributing the parties' marital property. We conclude the district court's spousal support decision is not clearly erroneous, the court erred in failing to apply the statutory presumption against awarding custody to a perpetrator of domestic violence, and the court failed to sufficiently explain a substantial disparity in the parties' property distribution. We affirm in part, reverse in part, and remand.

I

[¶ 2] Sue and Jeff DeMers began living together in 1992 and were married in 1996. The parties have two children together. In December 2002, Sue DeMers sued Jeff DeMers for divorce.

[¶ 3] Jeff DeMers owns his own farming operation and also farms in partnership with his father and brother. Sue DeMers was employed in various office positions until 1998. In 2000, Sue DeMers opened a tanning salon that went out of business in 2003, and she has been unemployed since. Jeff DeMers brought a substantial portion of the martial estate into the marriage debt free, including farmland he inherited and property related to the farming operation. The court found the net value of the marital estate is $792,948.

[¶ 4] After a 2004 divorce trial, the court granted the parties a divorce, distributed the marital estate, awarded the parties joint legal custody of the children, awarded Jeff DeMers physical custody of both children, and awarded Sue DeMers temporary spousal support in the amount of $1,200 per month for twelve months.

II

[¶ 5] Sue DeMers argues the district court erred in awarding Jeff DeMers primary physical custody of the parties' two children, because the court failed to invoke the statutory presumption against awarding custody to a perpetrator of domestic violence.

[¶ 6] Section 14-09-06.1, N.D.C.C., authorizes a district court to award custody of a child to the person who will promote the best interests and welfare of the child. Section 14-09-06.2(1), N.D.C.C., sets out the factors a court must consider in determining the best interests of the child. Under N.D.C.C. § 14-09-06.2(1)(j), there is a rebuttable presumption against awarding custody to the perpetrator of domestic violence:

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, 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, this combination 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.

N.D.C.C. § 14-09-06.2(1)(j). Domestic violence is defined as:

physical harm, bodily injury, sexual activity compelled by physical force, assault, or the infliction of fear of imminent physical harm, bodily injury, sexual activity compelled by physical force, or assault, not committed in self-defense, on the complaining family or household members.

N.D.C.C. § 14-07.1-01(2).

[¶ 7] A district court's determination of whether there has been domestic violence and whether the statutory presumption is applicable are findings of fact that will not be set aside on appeal unless they are clearly erroneous. Gonzalez v. Gonzalez, 2005 ND 131, ¶ 6, 700 N.W.2d 711; Lawrence v. Delkamp, 2000 ND 214, ¶ 7, 620 N.W.2d 151. 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. Cox v. Cox, 2000 ND 144, ¶ 9, 613 N.W.2d 516. "`A choice between two permissible views of the evidence is not clearly erroneous[,]'" and we recognize the district court is in a better position to assess the credibility of the witnesses and weigh the evidence. Morton County Soc. Serv. Bd. v. Schumacher, 2004 ND 31, ¶ 16, 674 N.W.2d 505 (quoting Ryan v. Flemming, 533 N.W.2d 920, 924 (N.D. 1995)). "When a [district] court addresses whether evidence of domestic violence triggers the presumption, the court must make specific and detailed findings regarding the effect the allegations of domestic violence have on the presumption." Cox, at ¶ 17. If the evidence of domestic violence does not rise to the level to trigger the presumption, the court may still consider the evidence as one of the best-interests factors. Id. Whether a district court misinterprets or misapplies a statute is a question of law fully reviewable on appeal. Lawrence, at ¶ 7.

[¶ 8] At trial, Sue DeMers testified to four incidents of domestic violence. The first occurred in 1998, when the parties were returning home from an anniversary celebration. Sue DeMers testified she was driving and Jeff DeMers started yelling at her, told her to stop the vehicle, pulled her out of the vehicle, and started hitting and kicking her. She also testified Jeff DeMers tried to leave her by the road, but came back for her when another vehicle began approaching, and he then began beating her again and threw her in the vehicle. Jeff DeMers disagreed with Sue DeMers' version of the incident. Jeff DeMers claimed Sue DeMers was driving 100 miles per hour, he made her stop, and she was injured when he attempted to wrestle the keys from her and they fell out of the vehicle. The incident was not reported to police and Sue DeMers did not receive any medical care, but the day after the incident pictures were taken of Sue DeMers' injuries, and those pictures were admitted into evidence at trial.

[¶ 9] Sue DeMers testified the second incident occurred in 1999 when Jeff DeMers threw her down a flight of stairs and she received some bruises. She testified the children witnessed the incident and were very upset. Sue DeMers testified the third incident occurred in 2001 when she was fighting with Jeff DeMers and he came after her. The police and Sue DeMers' mother were called, and the police asked Sue DeMers to leave the parties' home with her mother. No charges were filed as a result of this incident. Jeff DeMers testified that the second and third incidents were not separate incidents. He admitted pushing Sue DeMers down the stairs, but claimed she was loud and drunk, and he did not want her to wake their sleeping children.

[¶ 10] Sue DeMers testified the fourth incident occurred in October 2003, after she filed for divorce and shortly after the court issued an interim order awarding Sue DeMers temporary possession of the parties' farmhouse. At the time, Jeff DeMers was living in another building on the parties' farm. Sue DeMers testified that Jeff DeMers held up an ax and threatened to kill her with it if she stepped off the driveway. She testified she went into the house as a result of his threat, and she did not confront him. Jeff DeMers testified the incident occurred in the winter, he was carrying an ax to chop a hole in the ice for the cattle to drink, and the threats were made in a joking manner.

[¶ 11] The district court addressed Sue DeMers' allegations of domestic violence and made the following findings:

The Court recalls three specific incidents. One is returning home after an anniversary celebration. Sue claimed that Jeff made her get out of the car and caused her bruises and injuries. According to her, Jeff left her behind, but did finally pick her up. Jeff described that Sue was driving 100 miles per hour on a gravel road. He attempted to stop her. When they were stopped, they were wrestling for the keys and they fell out together causing both to be injured. According to Sue, the next morning Jeff stated that it would not happen again. Although the Court may question all of the details as described by Sue, it believes that the incident was more accurately described by her than by Jeff. The Second incident happened at their home. Jeff acknowledged that he had pushed her down the stairs because of his frustration with her. She did sustain some minor bruises. The police were called and Sue was asked to leave the home. This may have been because the children were sleeping and her mother was present to take her to another location. The third incident involved an axe. Jeff made a threatening motion with the axe and stated he should kill her. Sue believed him. Jeff testified that it was intended as a joke. The Court doubts that it was done as a joke as Jeff does not appear to be a person who jokes around. However, it also does not believe that he intended to carry out any threat. Although there have been three incidents, the Court finds that there is insufficient evidence to trigger the presumption relating to domestic violence.

[¶ 12] Under N.D.C.C. § 14-09-06.2(1)(j), the presumption against awarding custody to the perpetrator of domestic violence is triggered when there is credible evidence of domestic violence, and there exists at least one incident 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. See, e.g., Gonzalez, 2005 ND 131, ¶ 6, 700 N.W.2d 711.

[¶ 13] The evidence...

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