Reeves v. Chepulis

• Decision Date: 06 April 1999
• Docket Number: No. 980220,980220
• Citation: 591 N.W.2d 791
• Parties: Robert REEVES, Plaintiff and Appellee v. Karen CHEPULIS, Defendant and Appellant
• Court: North Dakota Supreme Court

Page 791

591 N.W.2d 791

1999 ND 63

Robert REEVES, Plaintiff and Appellee v. Karen CHEPULIS, Defendant and Appellant

No. 980220.

Supreme Court of North Dakota.

April 6, 1999.

Timothy W. McCann, of Lindquist, Jeffrey & Jensen, East Grand Forks, MN, for defendant and appellant.

John Thomas Traynor, Jr. (argued) and Daniel M. Traynor, of Traynor, Rutten & Traynor, Devils Lake, for plaintiff and appellee.

MARING, Justice.

¶1 Karen Chepulis appeals the district court's judgment awarding physical custody of Michael Reeves to his father Robert Reeves. We affirm.

I

¶2 Michael Reeves, born on February 26, 1995, is the child of Robert Reeves and Karen Chepulis. Michael's parents, who never were married and were 16 years old when Michael was born, ended their relationship within a year of Michael's birth. Both paternal and maternal grandparents have been very involved in raising and caring for Michael throughout his life. As Karen acknowledged in her brief, "Michael has lived at different times in both sets of grandparents' homes, and they have had contact and relations with him on a daily basis." After Michael was born, there was no particular custody arrangement, both families just seemed to do their share. Michael primarily resided with Karen and/or her parents during the week and with Robert and his parents on the weekend.

¶3 After graduating from high school, Robert completed a two-year welding program at the North Dakota State College of Science in Wahpeton, North Dakota, in April 1998. Shortly thereafter, Robert began working for Melroe Company in Bismarck, where he earns approximately fifteen dollars per hour plus good benefits. During his two years in college, Robert failed on only three occasions to return to Devils Lake to visit and take care of his son. The district court described Robert as goal-oriented and ambitious. It found Robert to have matured faster than Karen. The guardian ad litum described Robert as a caring and concerned father.

¶4 Since graduating from high school, Karen has worked off and on as a nurse's assistant in Devils Lake, earning on the average seven dollars per hour. She plans to attend nursing school in Bismarck in the future. Karen became pregnant again in 1996 as a result of a brief relationship with another man. The baby was born in February 1997 and was given up for adoption shortly after. Since Michael's birth, Karen's living arrangements have changed often. Review of her testimony at the custody hearing reveals in the past three years she has been in and out of her own apartment two or three times, in and out of her parent's home as many times, lived with Robert's parents once for a short period, and since early 1998 has been living in rural Devils Lake with John Olson, whom she recently married. The guardian ad litum was "not completely comfortable with some of the choices that Karen has made," but also concluded she has "shown more maturity lately" in her parenting role.

¶5 In March 1997 the parties stipulated to a temporary physical custody and visitation schedule. The parties agreed to joint legal custody, with Karen having temporary physical custody. Under the custody arrangement, Michael was shuffled between Karen, her parents, Robert and his parents, and a day-care provider throughout the week. Generally, Michael spends time either at day-care, with Karen, or with Karen's parents during the week, and spends the weekend with Robert and his parents. The parties' testimony at the custody hearing reveals Michael spent approximately 21 hours at day-care, 70 hours with Karen, 12 hours with Karen's parents, and 65 hours with Robert and his parents during a typical week.

¶6 Michael is in good health physically. However, the guardian ad litum reported Michael as having some social problems for a child his age, such as biting, kicking, aggressiveness, and tantrums. Michael's day-care provider suggested his problems stem from his unstructured schedule, and felt Michael's tantrums and aggressiveness would subside if he had more routine in his daily schedule, such as his naptime, mealtime, and bedtime.

¶7 On July 25, 1997, Robert brought an action seeking physical custody of his son. At the hearing on April 29, 1998, the district court determined Michael most needed stability, permanence, and continuity in his home environment. The court concluded Robert could provide more continuity in the child's life with his job and schedule in Bismarck. The court delayed the actual change in physical custody until September 1, 1998, because Robert had recently started his job in Bismarck and because Michael needed time to adjust to the decision. Karen timely appealed from the judgment entered on May 20, 1998.

II

¶8 Karen argues the district court erred in awarding physical custody of their son to Robert. In Reimche v. Reimche, 1997 ND 138, p 12, 566 N.W.2d 790 (citations and internal quotations omitted), we summarized our limited review of a trial court's custody award under N.D.R.Civ.P. 52(a):

A trial court's custody determination is a finding of fact that will not be set aside on appeal unless it is clearly erroneous. A trial court's findings of fact are presumptively correct. The complaining party bears the burden of demonstrating on appeal that a finding of fact is clearly erroneous. In reviewing findings of fact, we must view the evidence in the light most favorable to the findings. A choice between two permissible views of the evidence is not clearly erroneous. Simply because we might view the evidence differently does not entitle us to reverse the trial court. A finding of fact is clearly erroneous only if the reviewing court on the entire evidence is left with a definite and firm conviction that a mistake has been made.

¶9 Karen argues the district court erred because it did not make detailed factual findings on the issue of domestic violence. At the custody hearing, Karen testified to one account of domestic violence during her relationship with Robert:

The one night after we'd broken up, I got very scared of him. He came up to my sister, Nicole's apartment, ... and he knocked on the door and I answered and he said he had come to return some beer that he had borrowed from Nicole the night before. I said, okay, put it in the fridge. Well, he did this and then he started walking out and then he stopped and he wanted to talk about Michael, which is fine. Well, he got mad at me and we got into a big argument in which I got pushed a couple of times. I asked him to leave and he walked out and he decided to come back in and in the process of that he did break my sister's door to the apartment. I called his mother, told her what was going on, told her to come and get him and that pretty much ended it.

Karen's account of this incident was the only admissible evidence presented on the domestic violence issue. The issue was not addressed at any other point during the custody hearing, the parties did not address the issue in their closing arguments, and the trial court did not address the allegation in its oral or written factual findings or conclusions of law.

¶10 In an initial custody determination, a trial court must decide custody on the best interests and welfare of the child. Severson v. Hansen, 529 N.W.2d 167, 168 (N.D.1995). In so doing, the trial court has substantial discretion, but it must consider all of the factors under the best interests statute, N.D.C.C. § 14-09-06.2(1)(a)-(m). Id. at 168-69. While a separate finding is not required for each statutory factor, "the court's findings should be stated with sufficient specificity so that we can understand the factual basis for its decision." Id. at 169.

¶11 A trial court's evaluation of evidence of domestic violence in a custody determination is guided by subsection (j) of N.D.C.C. § 14-09-06.2(1). Section 14-09-06.2(1)(j) was amended in 1993 to create a rebuttable presumption against awarding custody to a parent who had perpetrated domestic violence when the court found "credible evidence that domestic violence has occurred." See 1993 N.D. Sess. Laws ch. 144, § 2. In 1997 the Legislature amended the statute again, raising the level of domestic violence required to trigger the presumption. See 1997 N.D. Sess. Laws ch. 147, § 2. The presumption is now triggered when the trial 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." Id.; see Dinius v. Dinius, 1997 ND 115, p 18, 564 N.W.2d 300 (discussing the effect of the 1997 amendment).

¶12 Once the presumption under section 14-09-06.2(1)(j) is triggered, the issue of domestic violence becomes the "paramount factor" in the trial court's custody decision. Engh v. Jensen, 547 N.W.2d 922, 924 (N.D.1996). The presumption prevents an abusive parent from obtaining custody of the child unless the abusive parent proves " 'by clear and convincing evidence that the best interests of the child require' " the abusive parent to participate in or have custody. Id. (citing N.D.C.C. § 14-09-06.2(1)(j)); see also Zuger v. Zuger, 1997 ND 97, p 31, 563 N.W.2d 804.

¶13 Karen concedes the evidence of domestic violence presented to the trial court did not result in serious bodily injury, involve use of a dangerous weapon, or constitute a pattern of violence, and therefore did not trigger the presumption under N.D.C.C. § 14-09-06.2(1)(j). She argues, however, a trial court must make specific factual findings even when the evidence of domestic violence does not rise to the level of triggering the presumption, and the trial court's failure to do so compels reversal. We disagree.

¶14 The import of domestic violence in a child custody proceeding is evidenced by the statute's requirement that the trial court "cite specific findings of fact to show...