Krank v. Krank
| Citation | 529 N.W.2d 844 |
| Decision Date | 16 March 1995 |
| Docket Number | No. 940159,940159 |
| Parties | Andrew Scott KRANK, David E. Braaten, Director of Grand Forks County Social Services Board, Guardian ad Litem for Andrew Scott Krank, Plaintiffs, and Annette Jones, Plaintiff and Appellant, v. Bruce C. KRANK, Defendant and Appellee. Civ. |
| Court | United States State Supreme Court of North Dakota |
Faron E. Terry, Omdahl & Terry, Grand Forks, for plaintiff and appellant. Appearance by Annette Jones, appellant.
Shirley A. Dvorak, Moosbrugger, Ohlsen, Dvorak & Carter, Grand Forks, for defendant and appellee.
Annette Jones appealed from a judgment awarding joint legal custody and sole physical custody of her son, Andrew Scott Krank, to his father, Bruce C. Krank. We reverse the judgment and remand to the trial court for further findings and reconsideration of the custody award.
Bruce and Annette, who have never been married to each other, met in 1983 while living in Dickinson and started dating in 1985. At that time, Annette was 24 years old and Bruce was 30 years old. Annette was married to David Jones, but had been separated since 1982. Annette and David did not obtain a divorce until 1993. Annette lived with her two young daughters, Jill Schaub, born in 1979, and Jasmine Jones, born in 1980. Bruce also had a young daughter, Melissa Krank, born in 1979, who resided out of state with her mother. Bruce had extended summer visitation rights with Melissa.
During their relationship, Bruce and Annette were heavily involved in alcohol and drug usage. After living together for three months in 1985, their relationship turned stormy, the couple got into frequent arguments, and Annette lived with another man in Dickinson for a short period of time in 1986.
Each party accused the other of physical abuse during their relationship. Annette testified about several instances of physical abuse committed by Bruce between 1986 and 1988 and obtained a temporary adult abuse protection order against him in June 1988. Annette testified about fights they had during which Bruce broke her fingers. She testified Bruce had raped her on more than one occasion. She also testified Bruce threw ash trays and glasses at her in a bar where she worked and grabbed her by the hair and pushed her into the side of the bar, bruising her face. Bruce denied Annette's allegations and testified he had never slapped or struck Annette. According to Bruce, the only time he became physically abusive with Annette was once when he pushed her against a wall in 1986. He also testified about being attacked by Annette on one occasion and that police officers "pulled her off" of him. He testified Annette threw glasses at him in the bar. Annette testified that she had slapped Bruce once and on another occasion threw a glass of tea at him.
While the protection order was still in effect, Annette and Bruce continued to initiate contacts with each other. In July 1988, Bruce received a gunshot wound in the hip from a small caliber handgun during an incident with Annette. According to Annette, Bruce confronted her while she was with another man and wanted to exchange personal items that had been in each other's possession. Annette testified that, after threatening the other man, Bruce grabbed her by the hair and threw her in his pickup and drove to his farm, telling her "he was going to fuck me one more time before he got rid of me." While scuffling in the pickup, Annette was sitting on the gun which Bruce had returned to her along with a knife earlier that evening. Annette testified she could feel the gun and "reached around and grabbed the gun to get it off the seat and he grabbed my arm and the gun went off." Annette drove Bruce to the hospital for treatment.
According to Bruce, he and Annette had gotten together merely to exchange personal items and he unloaded the gun before returning it to her. They drove around and talked, ending up at his farm. Bruce left the pickup to go to the bathroom and when he returned, "I got this gun pointed right at my head and [was] being cussed at." When he put his hand up to brush the gun away, "I got shot in the hip point-blank." Although investigated by the police, the incident resulted in no criminal charges being filed against either party.
Shortly after the shooting, Annette moved to Grand Forks and attended school, ultimately obtaining an associate of arts degree in medical administration. The couple continued to see each other approximately once every two months. In May 1989, when Annette drove to Dickinson to have Bruce fix her car, Andrew was conceived. Andrew was born on February 6, 1990. Bruce was in the delivery room when Andrew was born and visited him in Grand Forks after his birth. In August 1991, Annette and the children moved back to Dickinson and lived with Bruce until February 1992, when Annette and the children returned to Grand Forks. There was no evidence of physical abuse between the couple following the 1988 shooting incident, but Annette testified "there was emotional and mental abuse after that."
Bruce married his present wife, Becky, in December 1992. They, along with Becky's two daughters from a prior marriage, reside in rural Dickinson. At the time of trial, Bruce had recently lost a job but received income from his small farm and ranch operation and from hauling truck loads while looking for other employment. Becky has a full time job. Annette now lives with Carey Moran near Grand Forks along with her two daughters. Carey has a young son who lives with the child's mother and her husband, but Carey has no contact with the child. At the time of trial, Annette was not employed but received child support payments for the two girls and unemployment compensation. Carey has a full time job.
After Annette left Dickinson in February 1992, Bruce had difficulty visiting Andrew. Annette, through the regional child support enforcement unit, sought child support from Bruce, and Bruce moved the court for a change in custody. This was resolved by stipulation in which the parties agreed that Bruce would have custody of Andrew for six weeks and Annette for two weeks during each two month period until Andrew started school, at which time Bruce would have physical custody for nine months and Annette for three months each year. Shortly after the stipulation, Annette requested, and the trial court allowed her, to withdraw from it. The trial court continued the same custody arrangement as a temporary order pending the final custody determination.
According to Bruce, he no longer drinks excessively or frequents bars on a regular basis. He testified that he has quit using drugs. According to Annette, she has also changed. Annette testified she only goes out once a week and occasionally drinks a beer at a bar while playing darts. The guardian ad litem testified that one of the persons she contacted told her that Annette was late for a visitation exchange of Andrew in Jamestown because, according to Jasmine, "Mom had to go back home and get her weed." Jasmine testified she did not remember making that statement. According to the guardian ad litem, this person also informed her that he had recently seen Annette in a Grand Forks area bar when one of her daughters telephoned for Annette. Instead of answering the call, Annette "signaled 'tell them I'm not here.' "
The trial court treated this case as an original custody proceeding rather than a change of custody proceeding. The court noted the "turbulent relationship" between the parties through 1988 and that both "were abusing alcohol and drugs." The court did not make any findings about specific acts of violence perpetrated by either party, except with respect to the shooting incident. The court found only that "Annette shot Bruce with a small pistol." However, the court did vaguely observe that "Bruce minimizes the domestic violence and alcohol and drug use that he did" and that "Annette too also appears to minimize in this area." The court said it agreed with the guardian ad litem that the case was "most troublesome," and that both "parents have attempted to make themselves look better than the actual evidence indicates," but found "[i]t appears that Bruce has gotten his life more under control."
The trial court recognized the N.D.C.C. Sec. 14-09-06.2(1)(j) rebuttable presumption that a parent who has perpetrated domestic violence may not be awarded sole or joint custody of a child, and applied the presumption only against Bruce, ruling:
The trial court awarded the parties joint legal custody of Andrew, but awarded Bruce sole physical custody with visitation rights for Annette. Annette appealed.
A trial court's child custody decision fact finding will not be set aside unless it is clearly erroneous under N.D.R.Civ.P. 52(a). Simons by and through Simons v. Gisvold, 519 N.W.2d 585 (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, has a definite and firm conviction that the trial court has made a mistake. Ludwig v. Burchill, 514 N.W.2d 674 (N.D.1994).
Section 14-09-06.2(1)(j), N.D.C.C., provides:
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