Helbling v. Helbling, 940166

• Decision Date: 31 May 1995
• Docket Number: No. 940166,940166
• Parties: Deborah Dee HELBLING, Plaintiff and Appellant, v. Dale Robert HELBLING, Defendant and Appellee. Civ.
• Court: North Dakota Supreme Court

Page 650

532 N.W.2d 650

Deborah Dee HELBLING, Plaintiff and Appellant, v. Dale Robert HELBLING, Defendant and Appellee.

Civ. No. 940166.

Supreme Court of North Dakota.

May 31, 1995.

Irvin B. Nodland (argued), Bismarck, for plaintiff and appellant.

Dwight C.H. Kautzmann (argued), Bismarck, for defendant and appellee.

MESCHKE, Justice.

Deborah Helbling appealed from a divorce decree placing primary custody of her daughter, Deidre, with Dale Helbling, Deidre's father. We reverse and remand for reconsideration of custody because the trial court failed to act on extensive evidence of domestic violence.

Deborah and Dale were married in February 1984, and Deidre, their only child, was born December 8, 1986. Deborah filed for divorce in November 1992. Her complaint alleged that Dale "frequently physically and mentally abused" her, and she sought custody of Deidre. Dale counterclaimed for a divorce too, denied the allegations of abuse, and asked for custody of Deidre. After a four-day trial in April 1994, the trial court decreed a divorce, placed primary custody of Deidre with Dale, and scheduled visitation with Deidre for Deborah. Deborah appeals only the placement of primary custody.

Child custody is a finding of fact that will not be disturbed on appeal unless clearly erroneous. Leppert v. Leppert, 519 N.W.2d 287 (N.D.1994). A finding of fact is clearly erroneous if this court is left with a definite and firm conviction a mistake has been made or if the finding was induced by an erroneous view of the law. McAdams v. McAdams, 530 N.W.2d 647 (N.D.1995). The trial court failed to make detailed findings of fact about a key feature of this case.

Deborah chiefly contends Deidre's custody was wrongly placed with Dale because Deidre is more closely bonded with Deborah as her primary caregiver for over seven years, and she has had sole custody of Deidre during the year and a half of separation before the divorce. Deborah compares her circumstances with Dale's:

[He is] a brakeman-engineer for Burlington Northern Railroad. He had no home of his own and was living with his brother in Mandan. He is usually out of town from 60-75 hours each week. When home he often sleeps for eight hours, often during the day, before going on his next out-of-town run. In his free time, he often engages in his hobbies of hunting, fishing and trapping.

Because of his absentee schedule, at trial, the father proposed a "plan." He would buy a house. He would hire a full-time nanny whose identity was then unknown. This nanny would be with the child when he was gone.

In addition, Deborah asserts Dale has a long history of drug and alcohol abuse, and "is a physical and emotional abuser."

Answering in kind, Dale argues Deborah "did not address her manipulative behavior, or her oppositional and argumentative behavior, her average to below average intelligence, her immaturity, and impulsive behavior." Dale declares Deborah "needs long-term counseling and she is not as stable as" he is. Dale's appellate brief does not at all address the evidence of domestic violence marshalled by Deborah.

Because we conclude the extensive evidence of domestic violence in this record requires consideration and specific findings of fact, we do not reach all of the arguments made to us.

Deborah testified that Dale frequently abused her. She testified Dale would not allow her to reasonably spend money for household or personal items. For example, she testified Dale became angry about a 75 cent charge on the phone bill, then called Deborah "stupid" and "crazy," and physically assaulted her by "throwing me around." Deborah testified Dale became angry at the circus because Deidre would not sit in her seat. She said Dale made the family immediately leave and physically kicked both her and Deidre as they made their way to the parking lot. When they arrived home, said Deborah, Dale was still angry, whipped Deidre, causing welts on her body, and then he pushed Deborah out the garage door.

When asked for additional examples of Dale's violent conduct, Deborah told about a time when she and Deidre were looking at pictures in an upstairs bedroom:

... me and Deidre were sitting on the floor, and he came and grabbed me by my hair and he drug me down the steps. When I got to the bottom of the steps he threw me in front of the desk and then he kicked me and then I was supposed to prove to him that I didn't spend his money that day.

Deborah described another time when she came home from work and Dale wanted the sheets changed on the bed:

I came downstairs, this was at our first home we owned, and he told me to get upstairs and get those sheets off the bed and I wasn't, I didn't know what was wrong with the ones that were on there and he threw me up the steps and he threw me up against the linen closet and then I grabbed the sheets and then he threw me into the bedroom and I hit my head on the bed and then he just told me to put the sheets on. But before this when we were downstairs he threw me up against the gun cabinet, told me I knew how to use a gun.

Theresa Porter, a social worker at the Abused Adult Resource Center who counseled Deidre, testified that Deidre told her Dale pulled Deborah "down the stairs by her hair." A neighbor, Stanley Vitez, testified about a time that Deborah "kind of broke down," told him Dale "dragged [her] down the steps," and showed him bruises on her back. Deborah's father, Donald Allmendinger, testified that he watched Dale spank Deidre so hard that he would characterize it as a beating.

Dr. Pete Peterson, a psychologist testifying for Dale, agreed on cross-exam that the traits he found displayed by Deborah, ("suspicious," "evasive," "low self-esteem," "unassertive," "passive," "intimidated," "emotionally reactive," "anxious," and "angry feelings ... toward her spouse"), were characteristics often identified with a battered woman. Cassie Roberdeaux, a social worker experienced in working with victims of domestic abuse, testified about her extended counseling of Deborah, after she left Dale, about domestic violence and its effect on parenting. Dale denied most abusive acts toward Deborah, but he admitted that he had struck her three times during their marriage.

Dale testified that Deborah lies and embellishes incidents, uses disgusting language around Deidre, and calls Deidre terrible names to her face. A neighbor, Debra Hopfauf, testified that Deborah would yell obscenities and call Deidre names. When pressed for specifics, Hopfauf testified:

She would yell knock it off, you fucking cunt. Shut up, you little fucking bitch. Things like this. Throughout the phone conversations.

Bill Rowe testified that Deborah once kicked Deidre so hard she fell to the ground. Karen Mueller, a social worker appointed by the court to conduct a study, asked Deidre if she was afraid of her mom or dad. Mueller testified that Deidre responded, "I'm mostly scared of...