Ternes v. Ternes, 960121

Citation555 N.W.2d 355
Decision Date13 November 1996
Docket NumberNo. 960121,960121
PartiesLarry TERNES, Jr., Plaintiff and Appellee, v. Bergetta TERNES, Defendant and Appellant. Civil
CourtUnited States State Supreme Court of North Dakota

Lawrence R. Klemin of Bucklin, Klemin & McBride, Bismarck, for plaintiff and appellee. Karen L. McBride submitted on brief.

Leslie Bakken Oliver of Kapsner and Kapsner, Bismarck, for defendant and appellant.

VANDE WALLE, Chief Justice.

Bergetta Ternes appealed from the judgment awarding custody of her three children to their father, Larry Ternes. Bergetta argues the trial court did not properly consider evidence of domestic abuse, as required by N.D.C.C. § 14-09-06.2(1)(j). Because Bergetta failed to raise the issue at the trial court and because there is no adequate finding by the trial court whether or not domestic violence occurred, we affirm.

Bergetta and Larry Ternes were married in 1983 near Shields, North Dakota. At the time of marriage, Bergetta was seventeen years old and Larry was twenty-three. The couple had three children, Desiree, born June 21, 1984, Chantalle, born October 22, 1989, and Caitlin, born February 16, 1992. While married, the couple lived in Selfridge, North Dakota.

The marriage between Bergetta and Larry was difficult. During the course of the marriage both parties engaged in extramarital affairs. Both Larry and Bergetta had bouts of alcohol abuse while married. There is no evidence of any physical abuse by either party exhibited toward each other or the children as a result of the affairs or drinking.

Bergetta first brought up the idea of divorce in September of 1994. She told Larry she was in love with another man and wanted a divorce. Bergetta claimed Larry was very upset, and four days later, attempted to commit suicide. Bergetta discovered him sitting in their van in the garage with the engine running. Larry testified he did stage a suicide attempt, but contended he never seriously thought about killing himself, but rather was trying to gain Bergetta's attention and sympathy. Bergetta contends this action placed her in fear and this caused her not to seek a divorce.

Shortly thereafter, Larry filed for divorce. An interim order was filed on September 27, 1994. The order granted physical custody to Larry, with visitation rights to Bergetta. The interim order also required Bergetta to pay $350.00 per month in child support. Furthermore, the order evicted Bergetta from the parties' house in Selfridge and enjoined both parties from interfering with each other. Bergetta moved to Mandan, where she currently resides with her partner, Patrick Becker.

During the effect of the interim order, the children lived with Larry in Selfridge. Bergetta's visitation rights gave her visitation with the children every weekend. Larry did not try to impinge on or hinder Bergetta's rights. However, Bergetta claimed Larry, prior to the weekend visits, would tell the children there was "a bad man" staying at their mother's house, as well as making other negative comments. Bergetta claimed these comments were directed at Becker and demonstrated why the children "were expressing concern about coming to mom's house...."

Bergetta and Larry, despite their separation, both took Desiree, their oldest daughter who suffers from a chromosome defect, to a medical visit at the University of Minnesota Hospital in Minneapolis, in the fall of 1995.

The testimony of the event surrounding this trip is conflicting. During their time in Minneapolis, Bergetta and Larry stayed in different motels. However, on the last night, they, and Desiree, stayed in the same motel room. Bergetta claimed Larry asked if they could have sexual intercourse and tried to climb into the shower with her, but Larry denied ever making such a request. On the way home, Larry contended he was upset because Bergetta was wearing a Green Bay Packers shirt and claims Bergetta was wearing the shirt to purposely annoy him. Larry contended the Green Bay Packers were Patrick Becker's favorite football team and Bergetta's wearing the shirt was meant to anger Larry. Bergetta admitted to wearing the shirt, but denied it was intended to anger Larry. Despite the conflicting testimony, it is uncontroverted that, following an argument in front of Desiree, Larry left Bergetta at a rest area on Interstate 94 near Alexandria, Minnesota, and returned to Selfridge with Desiree.

The divorce action was brought before the trial court for final judgment in February of 1996. The trial court, in awarding custody, considered the relevant factors, under N.D.C.C. § 14-09-06.2, to determine the best interest of the Ternes children. Under this statute, the trial court applied factors a, b, c, and g 1 and found both parents were equally able to provide for the best interests of the children. The trial court stated, in its Memorandum Decision, that "both plaintiff and defendant have in the past, and in the future will, adequately parent the children." The trial court further stated factors i, j, k, and l 2 were not applicable. Thus, the trial court considered, in detail, factors d, e, f, h, and m. 3

Applying these factors, the court concluded the childrens' environment would be more desirable, both in facilities and continuity, with Larry rather than Bergetta. Furthermore, the court considered both parties' moral fitness questionable, but found Bergetta's extramarital affairs "more serious in degree and effect" and weighed factor "f" in Larry's favor. The trial court did consider Larry's behavior, including the staged suicide attempt, his behavior on the trip home from Minneapolis, and his comments to the children regarding Bergetta as "inappropriate," but also found "counseling has largely solved these problems...." These were the only findings as to the actions Bergetta now claims constitute domestic violence. Finally, the trial court concluded that by "[p]lacing weight on plaintiff's advantage with regard to stability, his good performance as caretaker for the past one and one-half years, his successful counseling and the other factors ... this Court finds an award of custody to plaintiff [Larry] to be in the best interest of the children."

Bergetta did not raise the issue of domestic violence at trial. However, because the trial court did not consider domestic violence as a factor, Bergetta now contends the trial court erred. She argues Larry's actions constitute domestic violence under the statute and raises the issue on appeal.

A trial court's custody determination is a finding of fact. Helbling v. Helbling, 532 N.W.2d 650 (N.D.1995) (citing Leppert v. Leppert, 519 N.W.2d 287, 290 (N.D.1994)). A custody determination will not be set aside unless it is clearly erroneous. N.D.R.Civ.P. 52(a). Krank v. Krank 529 N.W.2d 844, 847 (N.D.1995) (citing Simons By and Through Simons v. Gisvold, 519 N.W.2d 585, 587 (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." Krank, 529 N.W.2d at 847 (quoting Ludwig v. Burchill, 514 N.W.2d 674, 675 (N.D.1994)).

When determining custody, a trial court must consider what is in the best interest of the child. N.D.C.C. § 14-09-06.2, supra nn. 1-3. This statute was amended in 1993 to provide a rebuttable presumption against awarding custody to those parties who perpetrate domestic violence. Heck v. Reed, 529 N.W.2d 155, 161 (N.D.1995). This presumption can only be rebutted by clear and convincing evidence. Id. In the past, we stated each applicable factor of section 14-09-06.2 should be given equal consideration when determining the best interest of the child. Swanston v. Swanston, 502 N.W.2d 506, 508 (N.D.1993). However, since the amendment creating the rebuttable presumption, we have said that, "in the hierarchy of factors to be considered, domestic violence predominates when there is credible evidence of it." Ryan v. Flemming, 533 N.W.2d 920, 923 (N.D.1995). Heck, 529 N.W.2d at 161-62; Krank, 529 N.W.2d at 848. As amended, § 14-09-06.2(1)(j) states:

"j. Evidence of domestic violence. 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. The court shall cite specific findings of fact to show that the custody or visitation arrangement best protects the child and the parent or other family or household member who is the victim of domestic violence...."

Bergetta conceded, on appeal, she did not directly raise the issue at the trial court level, and therefore, the trial court did not make any detailed findings regarding evidence of domestic violence, other than calling Larry's actions "inappropriate."

Several recent cases have come before us on the issue of the effect of domestic violence in custody determinations under this statute. Anderson v. Hensrud, 548 N.W.2d 410 (N.D.1996); Bruner v. Hager, 547 N.W.2d 551 (N.D.1996); ...

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11 cases
  • Burns v. Burns, 20060218.
    • United States
    • United States State Supreme Court of North Dakota
    • August 22, 2007
    ...applicable factors under N.D.C.C. § 14-09-06.2(1) when determining the best interests of the children. See, e.g., Ternes v. Ternes, 555 N.W.2d 355, 357-58 (N.D. 1996). Under these circumstances, the district court's finding factor (j) favored Cynthia Burns did not require that she be awarde......
  • Kluck v. Kluck
    • United States
    • United States State Supreme Court of North Dakota
    • March 20, 1997
    ...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 ......
  • Luna v. Luna, 980204
    • United States
    • United States State Supreme Court of North Dakota
    • April 27, 1999
    ...determination of an original custody award, only the best interests of the child are considered. N.D.C.C. § 14-09-06.1; Ternes v. Ternes, 555 N.W.2d 355, 357 (N.D.1996). But, when a party is seeking to modify a custody arrangement, a court applies a two step process. Hagel v. Hagel, 512 N.W......
  • Dickson v. Dickson, 20170334
    • United States
    • United States State Supreme Court of North Dakota
    • June 5, 2018
    ...under N.D.C.C. § 14–09–06.2 should be given equal consideration when determining the best interests of the child. Ternes v. Ternes , 555 N.W.2d 355, 357 (N.D. 1996). However, since the inclusion of the rebuttable presumption, this Court has stated "in the hierarchy of factors to be consider......
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