Smith v. Martinez, 20100309.

• Court: United States State Supreme Court of North Dakota
• Citation: 800 N.W.2d 304,2011 ND 132
• Docket Number: No. 20100309.,20100309.
• Parties: Dominique L. SMITH, Plaintiff and Appellantv.Angie Abigail MARTINEZ, Defendant and Appellee.
• Decision Date: 13 July 2011

800 N.W.2d 304
2011 ND 132

Dominique L. SMITH, Plaintiff and Appellant
v.
Angie Abigail MARTINEZ, Defendant and Appellee.

No. 20100309.

Supreme Court of North Dakota.

July 13, 2011.

[800 N.W.2d 305]

Theodore T. Sandberg (argued), Grand Forks, ND, for plaintiff and appellant.Bethany L. Dittus (argued), Grand Forks, ND, for defendant and appellee.

[800 N.W.2d 306]

KAPSNER, Justice.

[¶ 1] Dominique L. Smith appeals a district court judgment granting Angie Abigail Martinez primary residential responsibility of the parties' child, C.R.S. We conclude the district court made inadequate findings on domestic violence between the parties and the presumption against awarding primary residential responsibility to the perpetrator of domestic violence. We reverse and remand to the district court to make the necessary findings.

I

[¶ 2] Smith and Martinez have never been married to each other. They have one child, C.R.S., born in 2009. Shortly after C.R.S. was born, Martinez left North Dakota and moved to Texas. Smith initiated an action seeking primary residential responsibility of C.R.S. At the district court hearing, both parties alleged the other perpetrated incidents of domestic violence. Smith alleged Martinez had been violent, had a felony record, was unemployed, and had a “serious psychological history.” Martinez alleged Smith caused the problems she had, and she has improved since leaving Smith. In its analysis of the factors to determine the best interests of the child, the district court included some findings on domestic violence between the parties, but the court did not address the domestic violence presumption. The court awarded Martinez primary residential responsibility with parenting time for Smith. Smith appealed, arguing the court erred by not analyzing whether the domestic violence presumption applied, and he argued the court erred in its findings on several other factors under the best interests of the child analysis.

II

[¶ 3] This Court reviews an award of primary residential responsibility under the clearly erroneous standard of review. Boeckel v. Boeckel, 2010 ND 130, ¶ 9, 785 N.W.2d 213. This Court does not reweigh the evidence or reassess the credibility of witnesses, nor does this Court substitute its judgment for a district court's initial decision. Id. A district court's decision awarding primary residential responsibility is a finding of fact which will not be set aside on appeal unless it is induced by an erroneous view of the law, if no evidence exists to support it, or if on the entire record this Court is left with a definite and firm conviction a mistake has been made. Duff v. Kearns–Duff, 2010 ND 247, ¶ 5, 792 N.W.2d 916. A choice between two permissible views of the weight of the evidence is not clearly erroneous. Id. A district court shall consider the best interests of the child in awarding primary residential responsibility, and the court must consider all the relevant factors under N.D.C.C. § 14–09–06.2(1). Id. at ¶ 6.

[¶ 4] On appeal, Smith argued the district court erred in applying factors (d), (e), (f), (g), and (j) of N.D.C.C. § 14–09–06.2(1) in its analysis of the best interests of the child. Smith argued the district court erred by not applying the domestic violence presumption under factor (j). Smith did not contest the court's findings under factors (a), (b), (c), (h), (i), (k), ( l ), or (m).

A

[¶ 5] Smith argued the district court erred in its findings under factor (d), because the findings did “not comport with any evidence.”

[¶ 6] Under factor (d), a court may consider: “The sufficiency and stability of each parent's home environment, the impact

[800 N.W.2d 307]

of extended family, the length of time the child has lived in each parent's home, and the desirability of maintaining continuity in the child's home and community.” N.D.C.C. § 14–09–06.2(1)(d). The district court found Martinez had a stable home environment now that she was away from Smith, Martinez's family assisted in financial and emotional care of C.R.S., and Martinez was employed and had no plans to leave her current community. The district court found Smith's plans were unknown, he had no extended family in his community, and he had not spent as much time with C.R.S.

[¶ 7] Smith argued the testimony of a child protective services specialist from Texas, and the testimony of Martinez's probation officer in Texas, did not support the district court's findings on Martinez's home environment. The child protective services specialist testified she checked on Martinez three times a month, monitored C.R.S.'s well-being, C.R.S. appeared to be well cared for, and C.R.S.'s living environment was nice. She had no concerns about Martinez's living environment. The probation officer testified she had no concerns with Martinez's probationary status in Texas, nor was she concerned Martinez was using drugs. Martinez testified she planned to stay in her current community, she received emotional support and assistance from her mother, and her sister assisted her financially. Martinez testified about her employment. The district court's findings on Martinez's home environment were supported by the record.

[¶ 8] Smith argued the district court erred in not considering the recordings of his telephone conversations with Martinez as evidence of her negative home life. Martinez testified she was distressed during the telephone conversations because of the court proceedings and Smith's communications with her. She testified Smith made threatening telephone calls, and he presented the portions of the conversation where she was reacting to his threatening communications. Martinez testified she was stressed as a new mother, and she was stressed that Smith discovered her addresses in her new community. Martinez explained why she said the things she said during the recorded conversations. The district court was entitled to choose between two permissible views of the evidence, and there is evidence on the record to support the court's findings and decision.

B

[¶ 9] Smith argued the district court erred in considering factor (e), because Martinez demonstrated she was unwilling to allow Smith any parenting time with C.R.S., and the court's findings were not supported by any evidence.

[¶ 10] Under factor (e), the court may consider: “The willingness and ability of each parent to facilitate and encourage a close and continuing relationship between the other parent and the child.” N.D.C.C. § 14–09–06.2(1)(e). The district court found Martinez had removed C.R.S. from North Dakota and allowed Smith only limited contact, but Martinez expressed a willingness to allow Smith parenting time and demonstrated she felt it important Smith have a relationship with C.R.S. The court noted Smith sought limited parenting time for Martinez. Smith argues the evidence showed Martinez was unwilling to foster a relationship between Smith and C.R.S., and Martinez threatened harm to herself and C.R.S. rather than allow Smith parenting time.

[¶ 11] Martinez testified that she...