Gietzen v. Gabel, 20050268.

• Decision Date: 18 July 2006
• Docket Number: No. 20050268.,20050268.
• Citation: 718 N.W.2d 552,2006 ND 153
• Parties: Christopher GIETZEN, Plaintiff and Appellant v. Jessica GABEL, n/k/a Jessica Bay, Defendant and Appellee.
• Court: North Dakota Supreme Court

Page 552

718 N.W.2d 552

2006 ND 153

Christopher GIETZEN, Plaintiff and Appellant v. Jessica GABEL, n/k/a Jessica Bay, Defendant and Appellee.

No. 20050268.

Supreme Court of North Dakota.

July 18, 2006.

Robert A. Keogh, Keogh Law Office, Dickinson, N.D., for plaintiff and appellant.

Robert J. Schultz, Conmy Feste, Ltd., Fargo, N.D., for defendant and appellee.

KAPSNER, Justice.

[¶1] Christopher Gietzen appeals from a judgment awarding Jessica Gabel sole physical custody of their minor child, granting Gietzen visitation, and ordering Gietzen to pay Gabel child support. We conclude the district court failed to correctly apply the law and make necessary findings about domestic violence, and we reverse and remand for further proceedings.

I

[¶ 2] Gietzen and Gabel have never been married, and in 1996, they had a son together. Gietzen and Gabel have had a tumultuous and sporadic relationship. From the date of the child's birth through the summer of 2000, Gietzen and Gabel generally lived together in Bismarck, but there were times when they were separated and the child lived with Gabel. During one period when they were separated, Gabel had a relationship with another man, and she has a child from that relationship. In the summer of 2000, Gietzen and Gabel moved to Fargo and lived together until they ended their relationship in October 2001. According to Gietzen, their relationship ended when Gabel began a relationship with her current husband, David Bay, whom she married in October 2002. According to Gietzen, although his relationship with Gabel ended in October 2001, they continued to have some contact until January 2002, so both he and Gabel could take care of the child while the other worked.

[¶3] Gabel claimed Gietzen physically abused her on a regular basis from 1995 until shortly after their relationship ended. Gabel claimed that following an argument in December 2001, Gietzen grabbed her by the throat, pushed her against a wall, lifted her up in the air, and choked her until she passed out. Gietzen admitted choking Gabel until she passed out, but claimed she had come after him with a knife. In January 2002, Gabel called police and reported Gietzen had been threatening her with a pocket knife. Gietzen claimed he was using the knife to clean his fingernails and no charges were filed. Later in January 2002, while Gabel was on a date with Bay, Gietzen called Gabel several times for a haircut. Gabel eventually agreed to cut Gietzen's hair later that evening, and during the haircut, the parties began arguing and Gabel cut Gietzen in the face, chest, and hand with a scissors. Gietzen was treated for the injuries at the emergency room, and Gabel was initially charged with attempted murder, but subsequently pled guilty to assault.

[¶4] After the January 2002, incident with the scissors, Cass County Social Services took custody of the child for a period of time. The child eventually began living with Gietzen, and Gabel had visitation. In the fall of 2003, Gietzen moved with his child to Halliday, and the child attended school in Killdeer. In August 2003, Gietzen sued Gabel to establish paternity, to obtain custody of his child, and to set visitation and establish Gabel's child support obligation. Gietzen obtained an ex parte order granting him temporary custody of his child and granting Gabel's visitation. The child lived with Gietzen and attended school in Killdeer from 2003 through the trial in early 2005. At the trial, both Gietzen and Gabel claimed they were victims of domestic violence. The district court ultimately awarded Gabel physical custody of the child, granted Gietzen visitation, and ordered Gietzen to pay Gabel child support.

II

[¶5] Gietzen argues several of the district court's findings of fact are not supported by the evidence and the court misapplied the law on domestic violence. He claims the court failed to make a finding on whether there was credible evidence of domestic violence and erred in measuring the amount of domestic violence committed by both parties.

[¶6] An award of custody is treated as a finding of fact and will not be reversed on appeal unless it is clearly erroneous under N.D.R.Civ.P. 52(a). Cox v. Cox, 2000 ND 144, ¶ 9, 613 N.W.2d 516. 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 a mistake has been made. Kjelland v. Kjelland, 2000 ND 86, ¶ 8, 609 N.W.2d 100.

[¶7] Under N.D.C.C. § 14-09-06.1, a district court must award custody of a child to the person who will promote the best interests and welfare of the child. Cox, 2000 ND 144, ¶ 10, 613 N.W.2d 516. Section 14-09-06.2(1), N.D.C.C., outlines several factors for determining the best interests and welfare of a child. A district court has substantial discretion in a custody decision, but it must consider the relevant custody factors in N.D.C.C. § 14-09-06.2(1)(a)-(m). Cox, at ¶ 10. A separate finding is not required for each statutory factor, but the court's findings must be stated with sufficient particularity so we can understand the factual basis for the court's decision. Id.

[¶8] Section 14-09-06.2(1)(j), N.D.C.C., creates a rebuttable presumption against awarding custody of a child to a perpetrator of domestic violence and provides:

Evidence 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. The 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. If necessary to protect the welfare of the child, custody may be awarded to a suitable third person, provided that the person would not allow access to a violent parent except as ordered by the court. If the court awards custody to a third person, the court shall give priority to the child's nearest suitable adult relative. The fact that the abused parent suffers from the effects of the abuse may not be grounds for denying that parent custody. As used in this subdivision, "domestic violence" means domestic violence as defined in section 14-07.1-01. A court may consider, but is not bound by, a finding of domestic violence in another proceeding under chapter 14-07.1.

Section 14-07.1-01(2), N.D.C.C., defines domestic violence to include:

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.

[¶9] This Court has said that when there is credible evidence of domestic violence, it is the predominate factor in custody decisions under N.D.C.C. § 14-09-06.2(1). Thompson v. Olson, 2006 ND 54, ¶ 10, 711 N.W.2d 226; Lawrence v. Delkamp, 2000 ND 214, ¶ 3, 620 N.W.2d 151. A determination whether the presumption under N.D.C.C. § 14-09-06.2(1)(j) is applicable is a finding of fact, which will not be reversed on appeal unless clearly erroneous. Gonzalez v. Gonzalez, 2005 ND 131, ¶ 6, 700 N.W.2d 711. When a district court addresses whether evidence of domestic violence triggers the presumption under that statute, we require specific findings and conclusions regarding the presumption so we are not left guessing as to the court's rationale regarding the application of the presumption. Id. Specific factual findings are not required when the evidence of domestic violence does not rise to the level to trigger the domestic violence presumption, but that evidence can still be considered by the court as one of the best interest factors. Cox, 2000 ND 144, ¶ 17, 613 N.W.2d 516.

[¶10] Our analysis of Gietzen's argument about his claims of domestic violence by both parents requires a brief explanation of the evolution of domestic violence as a factor for child custody decisions. In 1989, the legislature amended N.D.C.C. §§ 14-05-22 and 14-09-06.2(1) to require a district court to consider evidence of domestic violence as a factor in determining child custody and visitation. 1989 N.D. Sess. Laws. ch. 178, §§ 1, 2. In 1991, the legislature amended N.D.C.C. §§ 14-05-22(3) and 14-09-06.2(1)(j) to provide that if the court finds credible evidence that domestic violence has occurred, that evidence shall create a rebuttable presumption that awarding custody or granting visitation to the abusive parent is not in the best interests of the child. 1991 N.D. Sess. Laws ch. 148, §§ 1, 2. The 1991 amendments required the court to cite specific findings of fact to show that the custody or visitation arrangement best protects the child, parent, and other household members who are the victim of domestic violence. Id. at § 2. In Schestler v. Schestler, 486 N.W.2d 509, 511-13 (N.D.1992), a majority of this Court upheld an award of custody of two children to a perpetrator of domestic violence, concluding the domestic violence factor did not have priority over the other statutory factors for deciding custody and affirming the district court's finding that the presumption had been rebutted.

[¶11] In 1993, in response to Schestler, the legislature again amended ...