Horsted v. Horsted

• Decision Date: 17 February 2012
• Docket Number: No. 20110206.,20110206.
• Citation: 812 N.W.2d 448,2012 ND 24
• Parties: Theresa Marie HORSTED, Plaintiff and Appellant, v. Christopher D. HORSTED, Defendant and Appellee.
• Court: North Dakota Supreme Court

812 N.W.2d 448

2012 ND 24

Theresa Marie HORSTED, Plaintiff and Appellant,

v.Christopher D. HORSTED, Defendant and Appellee.

No. 20110206.

Supreme Court of North Dakota.

Feb. 17, 2012.

Tracey R. Lindberg (argued), Breckenridge, MN, for plaintiff and appellant.

Lawrence P. Kropp (argued), Jamestown, ND, for defendant and appellee.

KAPSNER, Justice.

[¶ 1] Theresa Horsted appeals from a district court order, divorce judgment, and amended divorce judgment awarding Christopher Horsted joint decisionmaking responsibility and visitation with the parties' daughter and dividing custody investigator fees between the parties. We affirm in part, reverse in part, and remand for further proceedings.

I

[¶ 2] Theresa and Christopher Horsted were married on September 13, 2009 and had one child, R.M.H., born in 2010. The parties later separated, and Theresa Horsted commenced an action for divorce. Theresa Horsted claimed Christopher Horsted was verbally and physically abusive toward her; he denied her allegations. Theresa Horsted reported one incident of alleged domestic violence to law enforcement, but no charges were filed. Christopher Horsted was previously charged with simple assault against a former girlfriend. Following a motion by Christopher Horsted, which Theresa Horsted opposed, the district court ordered the appointment of a custody investigator. The custody investigator completed a report, recommending a graduated parenting time schedule and suggesting “[p]rior to any unsupervised visits with Christopher [Horsted] ..., he will complete an Anger/Domestic Violence Assessment and all recommendations resulting from the assessment.”

[¶ 3] The parties agreed that Theresa Horsted would have primary residential responsibility, but remained unable to agree on various issues relating to R.M.H., and a trial was held. The court subsequently issued an order requiring each party to pay half of the custody investigator fees. The court also entered a divorce judgment that adopted the parenting plan proposed by Christopher Horsted and granted the parties joint decisionmaking responsibility with respect to R.M.H. After the commencement of the parenting plan, Theresa Horsted moved for its amendment, claiming R.M.H. was having difficulty adjusting to the visitation schedule. Following a hearing on the motion, the court modified the parenting plan in an amended judgment.

II

[¶ 4] Theresa Horsted argues the court erred in awarding joint decisionmaking responsibility to the parties, and in adopting Christopher Horsted's proposed parenting plan, then inadequately amending the plan after R.M.H. exhibited behavioral changes following visitation. Custody and visitation determinations are findings of fact and will not be reversed on appeal unless they are clearly erroneous. Edwards v. Edwards, 2010 ND 2, ¶ 7, 777 N.W.2d 606. We have stated:

A finding of fact is clearly erroneous if it is induced by an erroneous view of the law, if there is no evidence to support it, or if, although there is some evidence to support it, on the entire evidence we are left with a definite and firm conviction a mistake has been made.

Id. Under the clearly erroneous standard, we will not reweigh evidence, reassess witness credibility, or substitute our judgment for the district court's decision merely because we might have reached a different result. Wolt v. Wolt, 2010 ND 26, ¶ 7, 778 N.W.2d 786.

A

[¶ 5] Theresa Horsted claims the court erred in awarding the parties joint decisionmaking responsibility. The parties stipulated that Theresa Horsted would retain primary residential responsibility for R.M.H., but they did not agree on a parenting plan. “If the parents are unable to agree on a parenting plan, the court shall issue a parenting plan considering the best interests of the child.” N.D.C.C. § 14–09–30(1). A parenting plan must include a provision relating to decisionmaking responsibility, N.D.C.C. § 14–09–30(2)(a), and that responsibility must be allocated in the best interests of the child, N.D.C.C. § 14–09–31(2). The best interests factors are delineated in N.D.C.C. § 14–09–06.2. A district court need not make separate findings for each best interests factor but, as with custody, the court's findings must contain sufficient specificity to show the factual basis for the decision. Wolt, 2010 ND 26, ¶ 9, 778 N.W.2d 786. Here, the district court did not discuss the best interests factors at trial. In its May 27, 2011 order for judgment, the court stated it “finds that the Defendant's proposed parenting plan is in furtherance of the best interests and welfare of the parties' minor child,” but included no other findings to show its factual basis for awarding joint decisionmaking responsibility. “When a trial court does not make required findings, it errs as a matter of law, and it is necessary to remand for additional findings.” Sailer v. Sailer, 2009 ND 73, ¶ 28, 764 N.W.2d 445. We conclude the district court did not provide sufficient findings to allow proper appellate review of its decision, and we reverse and remand with instructions to make findings regarding R.M.H.'s best interests.

[¶ 6] Theresa Horsted also asserts the court erred in awarding joint decisionmaking responsibility because domestic violence occurred in the parties' relationship, and “[t]he court's analysis was made under a misapprehension of what constitutes ‘domestic violence.’ ” She points to N.D.C.C. § 14–09–31(4), which provides:

If the court finds that domestic violence as defined in section 14–07.1–01 has occurred,the court shall consider such domestic violence in determining whether joint decisionmaking responsibility is in the best interests of the child. In such cases, the court shall make orders for the allocation of parental rights and responsibilities that best protect the child, the parent, or both. If joint decisionmaking responsibility is granted, even though there is evidence of domestic violence, the court shall provide written findings to support the order.

(Emphasis added.) In this case, the district court stated, “I don't find there's any domestic violence under the statute.” The court went on to discuss a definition of domestic violence derived from N.D.C.C. § 14–09–06.2(1)(j), rather than N.D.C.C. § 14–07.1–01, when it stated “the statute ... says that domestic violence has to be one incident resulting in serious[ ] bodily injury.... One incident involving the use of a dangerous weapon.... Or, a pattern of domestic violence within a reasonable time proximate to the proceeding....” Those criteria were a proper consideration under N.D.C.C. § 14–09–29. But a different standard applies to considerations of joint decisionmaking responsibility. Under N.D.C.C. § 14–07.1–01, “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.”

[¶ 7] At trial, the court found that Christopher Horsted “grabbed—he didn't choke her, but ... pretty much like she says.... [H]e grabbed her [by] the neck and he shoved her and slammed her up against the—[sic][.]” The court also found that Theresa Horsted had pulled Christopher Horsted's hair in a separate incident. Based on these findings, the definition of “domestic violence” in N.D.C.C. § 14–07.1–01 may be satisfied, and the court erred in instead applying the definition of “domestic violence” from N.D.C.C. § 14–09–06.2(1)(j). When domestic violence is involved, N.D.C.C. § 14–09–31(4) then requires the court to provide written findings to support an order granting joint decisionmaking responsibility. We reverse and remand for additional findings on this issue.

[¶ 8] Theresa Horsted argues the court “failed to consider the lack of the ability of the parties to make joint decisions.” Section 14–09–31(3), N.D.C.C., addresses situations when parties do not agree on a parenting issue: “An allocation of decisionmaking responsibility is not in the best interests of the child unless the order includes a method of resolving disputes when parents do not agree on an issue.” At trial, the court contemplated a method for resolving disputes and appointed Jesse Hopewell, a lay pastor at Theresa Horsted's church, to work with the parties in resolving disputes relating to R.M.H. Although the court orally appointed Hopewell to mediate disputes, the court's written findings and conclusions do not include this appointment. We remand with instructions that the court address dispute resolution in its order.

B

[¶ 9] Theresa Horsted contends the court erred in adopting Christopher Horsted's proposed parenting plan because the “court is obligated to make decisions on parenting time based upon its own assessment of the best interest factors.” “In awarding visitation to the non-custodial parent, the best interests of the child, rather than the wishes or desires of the parents, are paramount.” Bertsch v. Bertsch, 2006 ND 31, ¶ 5, 710 N.W.2d 113.“[A] restriction on visitation must be based on a preponderance of the evidence and be accompanied by a detailed demonstration of the physical or emotional harm likely to result from visitation.” Marquette v. Marquette, 2006 ND 154, ¶ 9, 719 N.W.2d 321;see alsoN.D.C.C. § 14–05–22(2).

[¶ 10] Here, the court implied it did not find Theresa Horsted demonstrated, by a preponderance of the evidence, that R.M.H. would likely be physically or emotionally harmed by visitation with Christopher Horsted. The court stated Theresa Horsted did not present “any kind of realistic parenting plan,” and chose “to adopt [Christopher Horsted's plan] One Hundred percent [.]” A court may direct counsel to prepare findings, which become the court's findings once it affixes its signature to them. Kramer v. Kramer, 2006 ND 64, ¶ 8, 711 N.W.2d 164. However, the findings must still be...