Kluck v. Kluck

• Decision Date: 20 March 1997
• Docket Number: No. 960100,960100
• Parties: Roger E. KLUCK, Plaintiff and Appellee, v. Marcia L. KLUCK, Defendant and Appellant. Civil
• Court: North Dakota Supreme Court

Page 263

561 N.W.2d 263

1997 ND 41

Roger E. KLUCK, Plaintiff and Appellee, v. Marcia L. KLUCK, Defendant and Appellant.

Civil No. 960100.

Supreme Court of North Dakota.

March 20, 1997.

Gary H. Lee (argued), of Olson Burns Lee & Larson, Minot, for plaintiff and appellee.

Shirley A. Dvorak (argued), of Moosbrugger, Dvorak & Carter, Grand Forks, for defendant and appellant.

MESCHKE, Justice.

¶1 Marcia Kluck appealed a divorce decree placing custody of their two children with Roger Kluck, dividing marital property, and ordering child and spousal support. We affirm in part, reverse in part, and remand for further proceedings.

¶2 Roger and Marcia married in 1982. They have two children: Jennifer, born in 1985, and Jordan, born in 1991. The marriage was turbulent, and the parents separated on several occasions. They testified to frequent incidents of domestic abuse. Marcia characterized Roger as the principal aggressor, while Roger claimed he acted to defend himself and the children from Marcia's violent outbursts.

¶3 Marcia suffers from mental illness, and has been diagnosed with bi-polar disorder, personality disorder, manic depression, and post-traumatic stress syndrome. Marcia has occasionally exhibited violent and suicidal behavior, and has been hospitalized often.

¶4 In December 1994 Roger sued for divorce. The trial court's interim order gave Roger temporary custody of the children and use of the family home. Each parent was restrained from harassing the other. Because Marcia repeatedly filed baseless reports of child abuse against Roger during his temporary custody, the trial court held Marcia in contempt.

¶5 After trial, the court found both parties had committed domestic violence, but Marcia's had been "significantly greater." The court therefore applied the statutory presumption against placing custody with the perpetrator of domestic violence, see NDCC 14-09-06.2(1)(j), and placed custody of the children with Roger. The court authorized supervised visitation with Marcia. The court also divided the marital property, ordered Roger to pay Marcia spousal support of $400 per month, and ordered her to pay him child support of $148 per month. Marcia appealed.

I. EXPERT TESTIMONY

¶6 Marcia argues that the trial court erred in allowing the testimony of Dr. Jonathan Douglas, who had conducted a custody evaluation ordered under NDCC 14-09-06.3. Marcia contends Dr. Douglas was not qualified to give an expert opinion on child custody.

¶7 Expert testimony is admissible whenever specialized knowledge will assist the trier of fact:

If scientific, technical, or other specialized knowledge will assist the trier of fact to understand the evidence or to determine a fact in issue, a witness qualified as an expert by knowledge, skill, experience, training, or education, may testify thereto in the form of an opinion or otherwise.

NDREv 702. Whether a witness is qualified as an expert and whether the testimony will assist the trier of fact are decisions largely within the sound discretion of the trial court. State v. Trosen, 547 N.W.2d 735, 739 (N.D.1996); Horstmeyer v. Golden Eagle Fireworks, 534 N.W.2d 835, 837 (N.D.1995). The trial court's decision to admit expert testimony will not be overturned on appeal unless the court has abused its discretion. Trosen, 547 N.W.2d at 739; Horstmeyer, 534 N.W.2d at 837. As we said in Anderson v. A.P.I. Co., 1997 ND 6, 559 N.W.2d 204, and State v. Carlson, 1997 ND 7, 559 N.W.2d 802, Evidence Rule 702 envisions generous allowance of the use of expert testimony if the witness is shown to have some degree of expertise in the relevant field.

¶8 Marcia contends Dr. Douglas was not qualified to conduct the custody evaluation because he was not licensed in North Dakota and because his education and training were in adult clinical psychology, not child psychology. Dr. Douglas testified he had a Masters degree and Ph.D. in adult clinical psychology, with "some training as well in the diagnosis and treatment of children." As part of his training, Dr. Douglas did a three-month internship at the Regional Children's Centre in Windsor, Ontario. When he did this custody evaluation, Dr. Douglas was practicing as a clinical psychologist at the North Central Human Service Center under a license exemption that allowed him to practice under the supervision of another doctor until he received his North Dakota license.

¶9 Evidence Rule 702 does not require licensure in a particular field, or licensure in the court's jurisdiction, to qualify as an expert. Anderson, 1997 ND 6, 559 N.W.2d 204; Carlson, 1997 ND 7, 559 N.W.2d 802; Oberlander v. Oberlander, 460 N.W.2d 400, 402 (N.D.1990). Rather, as those opinions explain, it is the witness's actual qualifications that count.

¶10 Nor does Dr. Douglas's lack of more training in child psychology prevent his testimony here. Dr. Douglas has a doctorate in adult clinical psychology, with some training in child psychology. An expert need not be a specialist in a highly particularized field if his knowledge, training, education, and experience will assist the trier of fact. See, e.g., Anderson, 1997 ND 6, 559 N.W.2d 204 (specialist in environmental engineering could testify about his perceptions of medical articles he had read to research asbestos-caused illnesses); In re Estate of Aune, 478 N.W.2d 561, 563-564 (N.D.1991) (trial court did not abuse its discretion in allowing decedent's physician to testify about insane delusions). An educated and experienced psychologist should be able to qualify as an expert to testify about child custody factors.

¶11 In April 1995, Marcia stipulated the custody evaluation would be done by Dr. Douglas. Dr. Douglas filed his report with the court in June 1995, and counsel for each parent received a copy. Marcia made no objections to the report or to Dr. Douglas's qualifications until he testified at trial in September 1995. Her sudden objections to his qualifications came too late.

¶12 Marcia also contends that Dr. Douglas was unqualified to give an expert opinion on custody because he was not familiar with the statutory factors affecting the legal determination of custody and because he had a potential conflict of interest and was biased against Marcia. While these aspects may have affected the weight of his opinion, they go to his credibility, not to admissibility of his evidence. Horstmeyer, 534 N.W.2d at 837; Victory Park Apartments, Inc. v. Axelson, 367 N.W.2d 155, 163 (N.D.1985). We conclude that the trial court did not abuse its discretion in allowing Dr. Douglas to testify as an expert on custody.

II. CUSTODY

¶13 Marcia contends the trial court erred in finding she had committed significantly greater domestic violence than Roger and in applying the statutory presumption against placing custody with her. We disagree.

¶14 A trial court's custody decision is a finding of fact that we will not reverse on appeal unless it is clearly erroneous. Ternes v. Ternes, 555 N.W.2d 355, 357 (N.D.1996); Kraft v. Kraft, 554 N.W.2d 657, 659 (N.D.1996). 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 the reviewing court on the entire evidence is left with a definite and firm conviction that a mistake has been made. Ternes, 555 N.W.2d at 357; Kraft, 554 N.W.2d at 659. As Schmidkunz v. Schmidkunz, 529 N.W.2d 857, 859 (N.D.1995), explained, in reviewing findings of fact, we do not retry the case or reassess the credibility of witnesses.

¶15 Domestic violence can be critical for child custody:

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.

NDCC 14-09-06.2(1)(j). We explained the effect of this presumption in Engh v. Jensen, 547 N.W.2d 922, 924 (N.D.1996) (citations omitted):

When credible evidence of domestic violence is presented in a child custody dispute, such evidence "creates a rebuttable presumption that a parent who has perpetrated domestic violence may not be awarded sole or joint custody of a child." N.D.Cent.Code § 14-09-06.2(1)(j). We have interpreted the statutory presumption, in essence, to make domestic violence the paramount factor to consider in a custody decision.... The rebuttable presumption outweighs other factors and prevents the abusive parent from obtaining custody of the child, unless, in the case of two fit parents, the violent parent proves "by clear and convincing evidence that the best interests of the child require" that the perpetrator receive custody.

¶16 In this case, there was evidence that both Marcia and Roger engaged in domestic violence. Under these circumstances, the trial court had to consider the proportionality of each parent's violent conduct:

[A] proper construction of the statute requires that if domestic violence has been committed by both parents, the trial court measure the amount and extent of domestic violence inflicted by both parents. If the amount and extent of domestic violence inflicted by one parent is significantly greater than that inflicted by the other, the statutory presumption against awarding custody to the perpetrator will apply only to the parent who has inflicted the greater domestic violence, and will not apply to the parent who has inflicted the lesser. However, if the trial court finds that the amount and extent of the violence inflicted by one parent is roughly proportional to the violence inflicted by the other parent, and both parents are otherwise found to be fit parents, the presumption against awarding custody to either...