Mowan v. Berg

• Decision Date: 28 April 2015
• Docket Number: No. 20140201.,20140201.
• Citation: 862 N.W.2d 523
• Parties: Darin Jeffrey MOWAN, Plaintiff and Appellee v. Brittney Ann BERG, Defendant and Appellant.
• Court: North Dakota Supreme Court

862 N.W.2d 523

Darin Jeffrey MOWAN, Plaintiff and Appellee

v.Brittney Ann BERG, Defendant and Appellant.

No. 20140201.

Supreme Court of North Dakota.

April 28, 2015.

Bonnie Paradis Humphrey (argued), Minot, ND, and Melissa Elizabeth Leathers (on brief), Fort Collins, CO, for plaintiff and appellee.

Kyle Richard Craig, Minot, ND, for defendant and appellant.

Opinion

CROTHERS, Justice.

[¶ 1] Brittney Ann Berg appeals from a district court judgment awarding primary residential responsibility of the parties' minor child to Darin Jeffrey Mowan. Berg argues the district court erred by failing to make specific and detailed findings regarding incidences of domestic violence and by ignoring significant uncontested evidence favoring one party. Mowan argues the district court did not err because no credible evidence of domestic violence rising to the level requiring a rebuttable presumption existed and because the best interests of the child factors favor Mowan. We reverse the district court's findings under factor (j). We affirm the district court's findings under factor (b). We reverse the district court's judgment and remand for further proceedings.

I

[¶ 2] Berg and Mowan, who never married, have a child born in 2012. Mowan resides in Minot, North Dakota. In May 2013, Berg moved from Minot to Illinois and then relocated to Iowa in December 2013, taking the child with her. In September 2013, Mowan sought primary residential responsibility of the child.

[¶ 3] At trial, both parties tried to enter evidence of a domestic violence incident. In September 2010, an incident occurred between the two for which both Berg and Mowan were charged with simple assault domestic violence, class B misdemeanors. The charges against Mowan were dismissed, but Berg pled guilty to simple assault domestic violence. Discussion of this incident was objected to and sustained by the district court. The court explained:

“[E]vidence of domestic violence is pertinent if the Court finds credible evidence that the violence has occurred; and if there is one incident which results have been serious bodily injury; which would mean that it was not a B misdemeanor; it would be an A misdemeanor or above.

“Or there was a pattern of violence within a reasonable time approximate [sic] to the proceedings way back in 2011, that's three years ago. We're not approximate [sic] to the proceeding. So I'm not sure how this has a whole lot of bearing here.”

Later attempts to enter testimony regarding this incident also were objected to and sustained. Berg also testified about many other incidents regarding Mowan's behavior.

[¶ 4] In weighing factor (j), evidence of domestic violence, the district court explained:

“There was evidence of domestic violence, however, it apparently occurred in 2010, two years before the child was even born. For the Court to consider a charge of domestic violence in this setting, there must be evidence of serious bodily injury, the use of a weapon, or a pattern of abuse reasonably proximate in time to this proceeding. Since the matters appear to have been misdemeanors, the Court can assume the incidents did not involve serious bodily injury, or the use of a weapon. In that event the charges would no doubt have risen to a felony level. Further, one incident does not create a pattern of abuse. Finally, the incident is not proximate in time to these proceedings, occurring approximately three to four years ago. Although there may be evidence of domestic violence, the Court will not consider it relevant. This factor has no bearing on the outcome of this case.”

The district court found, “After reviewing all of the statutory factors, the Court finds that nine factors favor neither party, or have no application to the case (factors a, c, f, g, h, I, j, l, and m). Four factors favor Darin Mowan (factors b, d, e, and k). No factors weigh in Brittney Berg's favor.” The court awarded Mowan primary residential responsibility of the child.

II

[¶ 5] “An award of [primary residential responsibility] is a finding of fact which this Court will not disturb unless it is clearly erroneous.” McAllister v. McAllister, 2010 ND 40, ¶ 13, 779 N.W.2d 652 (citations omitted). “Under N.D.R.Civ.P. 52(a), a finding of fact is clearly erroneous only if it is induced by an erroneous view of the law or, although there is some evidence to support it, on the entire record we are left with a definite and firm conviction a mistake has been made.” McAllister, at ¶ 13 (citations omitted). “Under the clearly erroneous standard, we do not reweigh the evidence nor reassess the credibility of witnesses, and we will not retry a custody case or substitute our judgment for a district court's initial [primary residential responsibility] decision merely because we might have reached a different result.” Wolt v. Wolt, 2010 ND 26, ¶ 7, 778 N.W.2d 786 (citations and quotation marks omitted).

III

[¶ 6] Berg argues the district court erred by failing to make specific and detailed findings regarding incidents of domestic violence. Mowan argues the district court did not err by determining credible evidence of domestic violence rising to the level requiring a rebuttable presumption in determining residential responsibility did not exist. Berg argues, even if the district court did not find a pattern of domestic violence requiring explanation of the rebuttable presumption, the court failed to address domestic violence as a factor in deciding primary residential responsibility.

[¶ 7] Under N.D.C.C. § 14–09–06.2(1)(j), domestic violence is explained within the best interests of the child factors:

“In determining parental rights and responsibilities, the court shall consider evidence of domestic violence. If the court finds credible evidence that domestic violence has occurred, and there exists one incident of domestic violence which resulted in serious bodily injury or involved the use of a dangerous weapon or there exists a pattern of domestic violence within a reasonable time proximate to the proceeding, this combination creates a rebuttable presumption that a parent who has perpetrated domestic violence may not be awarded residential responsibility for the child. This presumption may be overcome only by clear and convincing evidence that the best interests of the child require that parent have residential responsibility. The court shall cite specific findings of fact to show that the residential responsibility best protects the child and the parent or other family or household member who is the victim of domestic violence.... The fact that the abused parent suffers from the effects of the abuse may not be grounds for denying that parent residential responsibility. As used in this subdivision, ‘domestic violence’ means domestic violence as defined in section 14–07.1–01. A court may consider, but is not bound by, a finding of domestic violence in another proceeding under chapter 14–07.1.”

“Domestic violence” under N.D.C.C. § 14–07.1–01(2), “includes physical harm, bodily injury, sexual activity compelled by physical force, assault, or the infliction or 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.”

[¶ 8] “Even if the evidence of domestic violence does not trigger the statutory presumption under N.D.C.C. § 14–09–06.2(1)(j), the violence must still be considered as one of the factors in deciding primary residential responsibility.”

Law v. Whittet, 2014 ND 69, ¶ 17, 844 N.W.2d 885. When competent evidence of domestic violence exists, a two-step analysis is required. “When credible evidence of domestic violence exists, it ‘dominates the hierarchy of factors to be considered’ when determining the best interests of the child under N.D.C.C. § 14–09–06.2.” Datz v. Dosch, 2013 ND 148, ¶ 18, 836 N.W.2d 598 (quoting Wessman v. Wessman, 2008 ND 62, ¶ 13, 747 N.W.2d 85).

[¶ 9] “When a district court addresses whether evidence of domestic violence triggers the presumption under that statute, we require specific findings and conclusions regarding the presumption so we are not left guessing as to the court's rationale regarding the application of the presumption.”Gietzen v. Gabel, 2006 ND 153, ¶ 9, 718 N.W.2d 552. “A trial court cannot simply ignore evidence of family abuse, but must make specific findings on evidence of domestic violence in making its decision on primary residential responsibility.” Law, 2014 ND 69, ¶ 17, 844 N.W.2d 885 (citing Helbling v. Helbling, 532 N.W.2d 650, 653 (N.D.1995) ). “The district court's findings should be sufficiently detailed to allow this Court to understand the basis for its decision.” Boeckel v. Boeckel, 2010 ND 130, ¶ 16, 785 N.W.2d 213.

[¶ 10] The district court specifically found the incident in 2010 “did not involve serious bodily injury, or the use of a weapon ... [and] the incident is not proximate in time to these proceedings, occurring approximately three to four years ago.” Berg argued that beyond the 2010 incident, she was “subjected to a pattern of bullying, controlling, and physical force.” Berg stated the parties relationship included “a lot of name calling, belittling, bullying, controlling, [and] physical contact.” This Court has explained, “[N]ame calling is not included in the definition of domestic violence.” Wolt, 2010 ND 26, ¶ 33, 778 N.W.2d 786 (citing N.D.C.C. §§ 14–09–06.2(1)(j) & 14–07.1–01(2) ). However, Berg also testified to incidents when Mowan would grab a gun during heated arguments and make threatening sounds with it, and when he would grab a knife in a threatening manner and make threats of self-harm in response to her wanting to leave. She testified the child was near during these incidents. Berg stated, throughout their relationship, she often called Mowan's family members to come over and “calm him down.” Berg stated she left home because of these types of incidents. If Berg moved out due to incidents of domestic violence,...