Heck v. Reed

• Decision Date: 28 February 1995
• Docket Number: No. 940117,940117
• Citation: 529 N.W.2d 155
• Parties: Shane HECK, Plaintiff and Appellee, v. Cristie REED, Defendant and Appellant. Civ.
• Court: North Dakota Supreme Court

Page 155

529 N.W.2d 155

36 A.L.R.5th 849

Shane HECK, Plaintiff and Appellee, v. Cristie REED, Defendant and Appellant.

Civ. No. 940117.

Supreme Court of North Dakota.

Feb. 28, 1995.

Patti J. Jensen of Lindquist & Jeffrey, Grand Forks, for defendant and appellant.

Shirley Faye Lawonn Jahnke, Grand Forks, for plaintiff and appellee.

LEVINE, Justice.

Cristie Reed appeals from a district court judgment awarding sole physical and legal custody of her two children to their father, Shane Heck. At issue in this appeal are the 1993 amendments to NDCC Sec. 14-09-06.2(1)(j), in particular, the meaning and application of the language that there is "a rebuttable presumption that a parent who has perpetrated domestic violence may not be awarded sole or joint custody of a child" and that "[t]his 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."

This is a case where the trial court, agreeing with the guardian ad litem, characterized both parents as having the ability to appropriately raise the children and as having great affection toward them. It then found that, although Shane had perpetrated domestic violence against Cristie, the presumption that a parent who has perpetrated domestic violence may not be awarded sole or joint custody of the children was rebutted by other factors. Because the trial court improperly applied NDCC Sec. 14-09-06.2(1)(j), we hold that it was clearly erroneous for the trial court to find that the presumption against awarding sole or joint custody to a parent who has perpetrated domestic violence was rebutted, and we reverse and remand.

FACTS

Cristie and Shane's relationship was tumultuous, fraught with numerous breakups and reconciliations. The parties began dating in 1989, when Cristie was sixteen and Shane was nineteen. The parties never married but lived together, off and on, for a period of two years, between November of 1990 and November of 1992. They have two children, Shana Rae Heck, born October 20, 1991, and Steven Shane Reed, born October 14, 1992. During the latter portion of their relationship, Cristie, Shane and the children lived in a mobile home on Shane's parents' farm in Walhalla, North Dakota, where Shane works with his father. After the parties separated for the last time, Shana remained in Walhalla with Shane, and Steven, an infant at the time, moved with Cristie to Grand Forks.

After several months, Shane initiated this action seeking sole custody of both Shana and Steven. Cristie counter-petitioned, also requesting sole custody of the children.

The trial court conducted a hearing during which it heard testimony from several witnesses, including Cristie, Shane, and the children's guardian ad litem. One of the trial court's findings of fact is that "Shane has physically and verbally abused Cristie[,]" but we are not told what conduct and speech were abusive. However, the trial court's comments to counsel during the course of the hearing clarify the nature of the abuse the trial court found as a fact. The trial court disclosed to counsel that it was going to find domestic violence and that counsel for Shane should, in effect, concentrate on producing evidence that would rebut the presumption against awarding custody to Shane. The court said:

"[Cristie] testified that hair was pulled from her head.... You are all concerned about domestic violence and the factors for custody. I think on this state of evidence ... she has testified to bad names and pulled hair and hitting her on her birthday and punching in the face and, '[Shane] has hit me more than once'--she has testified to. And there has been dismissals on a couple abuse charges. I think I am going to find domestic violence.... So, that obviously concerns you, Mr. Larivee.

. . . . .

"Now, the focus then has to be on the clear and convincing evidence of other things that point in his favor that overcomes his [sic ] presumption." Tr. pp. 52-53.

The trial court appears to have found Cristie's testimony credible as to the nature and extent of domestic violence committed by Shane. ¹ However, in its written findings, the trial court characterized this violence as "minimal" and also found that "[t]here is little likelihood of continued violence toward anyone." The trial court found significant that "there was never any abuse directed toward the children nor has it [had] an observable effect on them." The trial court noted that "[b]oth parents have the ability to raise the children appropriately, although Shane is the more interested and potentially better parent." The trial court also relied upon "the interaction of Shane's parents" with the children, Shane's "desire to provide for the children's needs," Shane's "more settled" living arrangement and "Cristie's smoking habits" to rebut the presumption against awarding custody to Shane, a parent who had perpetrated domestic violence. ²

On appeal, Cristie argues that the trial court gave too little weight to the evidence of domestic violence and therefore, it was clearly erroneous for the trial court to find that the presumption against awarding custody to a perpetrator of domestic violence was rebutted.

LAW AND ANALYSIS

A trial court's findings on matters of child custody are findings of fact which we will not reverse unless clearly erroneous. NDRCivP 52(a); e.g., Ludwig v. Burchill, 514 N.W.2d 674 (N.D.1994). 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. Dalin v. Dalin, 512 N.W.2d 685 (N.D.1994).

Before we can determine if the trial court's finding that the presumption against awarding custody to a perpetrator of domestic violence was rebutted is clearly erroneous, we must determine how the statute is to be properly applied. Section 14-09-06.2(1)(j), NDCC, says:

"j. 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, 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. 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. ³ ... The fact that the abused parent suffers from the effects of the abuse may not be grounds for denying that parent custody...." ⁴ (Emphasis added.)

Interpretation of a statute is a question of law, fully reviewable on appeal. State v. Beilke, 489 N.W.2d 589 (N.D.1992). Our construction of section 14-09-06.2(1)(j) is guided by well-established canons of statutory interpretation. See, e.g., Olson v. Director, N.D. DOT, 523 N.W.2d 258 (N.D.1994). Our duty, when we construe a statute, is to ascertain the legislature's intent. State v. Pippin, 496 N.W.2d 50 (N.D.1993). That intent may be ascertained from the face of a clear and unambiguous statute. NDCC Sec. 1-02-05; Beilke, 489 N.W.2d at 592. When we construe a statute, words are given their plain, ordinary and commonly understood meaning, with consideration of "the ordinary sense of statutory words, the context in which they were enacted, and the purpose which prompted the enactment." Id.

Section 14-09-06.2(1)(j) has a familiar and lengthy history. See Schestler v. Schestler, 486 N.W.2d 509 (N.D.1992) [tracing the history of the statute's enactment and subsequent amendments]. In Schestler, supra, a majority of this court upheld a trial court's award of the custody of two minor children, Trista and Kristofer, to Charles Schestler, despite evidence that Charles abused their mother, Wanda, by hitting and shoving her, and that he inappropriately touched Wanda's two teenage daughters' breasts. The majority, agreeing with the trial court, found that any statutory presumption against awarding custody to Charles, a perpetrator of domestic violence, was sufficiently rebutted because:

1) Charles had never directed violence toward Trista or Kristofer;

2) Charles had a more stable home environment;

3) There was more love and affection between Charles and the children than existed between Wanda and the children;

4) There was an "adverse relationship" between the younger children and Tara and Tosha;

5) Charles' mother and her daughter would assist in providing care for the children; and

6) Wanda demonstrated some lack of care and concern for the children's safety. Id. at 512.

In Schestler, two statutory provisions were at issue, the pre-amended NDCC Sec. 14-09-06.2(1)(j), which said:

"j. The existence of domestic violence. If the court finds that domestic violence has occurred, 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 from any further harm. As used in this subdivision, 'domestic violence' means domestic violence as defined in section 14-07.1-01."

and NDCC Sec. 14-05-22(3), which said:

"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 the rebuttable presumption that awarding custody or granting visitation to the abusive party is not in the best interests of the child."

See Schestler, 486 N.W.2d at 511. The majority reasoned that while these statutes required a trial court to consider...