Thompson v. Olson

• Citation: 711 N.W.2d 226,2006 ND 54
• Decision Date: 29 March 2006
• Docket Number: No. 20050091.,20050091.
• Parties: Cory L. THOMPSON, Plaintiff and Appellant v. Nikki L. OLSON, Defendant and Appellee.
• Court: United States State Supreme Court of North Dakota

Page 226

711 N.W.2d 226

2006 ND 54

Cory L. THOMPSON, Plaintiff and Appellant v. Nikki L. OLSON, Defendant and Appellee.

No. 20050091.

Supreme Court of North Dakota.

March 29, 2006.

Suzanne M. Schweigert, Smith Bakke Oppegard Porsborg Wolf, Bismarck, N.D., for plaintiff and appellant.

Austin G. Engel Jr., Bismarck, N.D., for defendant and appellee.

MARING, Justice.

[¶ 1] Cory L. Thompson appealed from an amended judgment granting Nikki L Olson custody of the couple's minor child and establishing a visitation schedule for Thompson. We conclude the trial court's decision to grant Olson's motion for change of custody is not clearly erroneous. We modify the visitation provisions of the amended judgment and affirm the amended judgment as modified.

I

[¶ 2] Thompson and Olson never married, but had a child ("Mary," a pseudonym) born in October 1998. Thompson lives in Washburn and Olson lives in the Bismarck-Mandan area. Olson moved into Thompson's home a few months before Mary was born. After the parties' relationship ended, Thompson sued Olson in 1999 to establish his paternity, to obtain custody of Mary, and to set visitation and establish Olson's child support obligation. In January 2000 Thompson and Olson stipulated to a split custody arrangement and agreed upon a visitation schedule, and the trial court entered a judgment incorporating the parties' stipulation.

[¶ 3] In May 2004 Olson moved to amend the judgment to grant her full custody of Mary with continued visitation for Thompson, and to set Thompson's child support obligation because "the beginning of [Mary's] formal education will require adjustments in visitation from month to month to accommodate [Mary's] school and other activities as she becomes older," and Thompson "is an argumentative and combative person who will refuse to agree on anything he believes curtails or controls in any way what he wants." At the hearing on the motion, the trial court limited each party to two hours and fifty minutes to present their cases. The evidence reflected that Mary was living one-half of the time in Washburn with her father and one-half of the time in the Bismarck-Mandan area with her mother. Thompson's household included his girlfriend and a son from a previous marriage. Olson was engaged to be married but was not living with her boyfriend.

[¶ 4] Following the hearing, the court found that a change of custody was required because Mary needed "to live with one parent in one community during the school week." The court applied the best interest factors under N.D.C.C. § 14-09-06.2 and found most favored neither party in the custody determination. The court found the factor based on the length of time the child has lived in a stable satisfactory environment and the desirability of maintaining continuity "slightly" favored Thompson, but only because of his girlfriend's efforts and because "Thompson has lived in the same house in Washburn." However, the court found that Thompson had committed two acts of domestic violence against Olson in August 1998 and in March 1999, triggering a presumption that Thompson not be awarded custody of Mary. The court further ruled "Thompson failed to present clear and convincing evidence that [Mary's] best interest require[s] him to have custody of [Mary]." The court awarded full custody to Olson, established a visitation schedule, and set Thompson's child support obligation.

II

[¶ 5] Thompson argues the trial court erred in restricting each party to two hours and fifty minutes to present their cases.

[¶ 6] A trial court has broad discretion over the presentation of evidence and the conduct of trial, but it must exercise its discretion in a manner that best comports with substantial justice. Gullickson v. Kline, 2004 ND 76, ¶ 15, 678 N.W.2d 138. A court may impose reasonable restrictions on the length of a hearing and the number of witnesses allowed. Id. at ¶ 16. A court abuses its discretion only when the court employs a procedure which fails to afford a party a meaningful and reasonable opportunity to present evidence on the relevant issues. Id.

[¶ 7] The parties knew in advance that one day was scheduled for the hearing and Thompson did not seek to have more than one day allotted for the hearing. Thompson had an ample opportunity to plan his allocated time to accommodate his witnesses and presentation. Although Thompson claims he was unable to call three witnesses who were prepared to testify, he made no offer of proof of the specific testimony that he sought to introduce. Without a sufficient offer of proof, we are unable to review whether exclusion of the evidence was prejudicial. See Forster v. West Dakota Veterinary Clinic, 2004 ND 207, ¶ 43, 689 N.W.2d 366. Thompson also claims he was not given an opportunity to cross-examine Olson on rebuttal. However, the record shows Thompson did not object or request the court to allow him an opportunity to cross-examine Olson.

[¶ 8] Each party was given an equal amount of time to present their cases. Under the circumstances, we conclude Thompson was afforded a meaningful and reasonable opportunity to present evidence on the relevant issues.

III

[¶ 9] The parties do not dispute that the beginning of Mary's education constituted a material change of circumstances requiring a change of custody. See Woods v. Ryan, 2005 ND 92, ¶ 9, 696 N.W.2d 508 (in deciding whether to change custody, the court must first consider whether there has been a material change of circumstances since the original custody decree, and if so, it must decide whether a change in custody is necessary to serve the best interests of the child); N.D.C.C. § 14-09-06.6(6). Rather, Thompson argues the trial court erred in finding he committed domestic violence sufficient to raise a presumption against awarding custody to him.

[¶ 10] In awarding custody in the best interests of the child, the court must consider the factors listed under N.D.C.C. § 14-09-06.2. Lawrence v. Delkamp, 2000 ND 214, ¶ 3, 620 N.W.2d 151. When there is credible evidence of domestic violence, it dominates the hierarchy of factors to be considered. Id. Section 14-09-06.2(1)(j), N.D.C.C., provides in relevant part:

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, 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 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.... As used in this subdivision, "domestic violence" means domestic violence as defined in section 14-07.1-01.

"Domestic violence" is defined in N.D.C.C. § 14-07.1-01(2) as including:

physical harm, bodily injury, sexual activity compelled by physical force, assault, or the infliction of 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.

A trial court's determination whether the domestic violence presumption is applicable is a finding of fact which will not be reversed unless it is clearly erroneous. Gonzalez v. Gonzalez, 2005 ND 131, ¶ 6, 700 N.W.2d 711. A finding of fact is clearly erroneous only if it is induced by an erroneous view of the law, if there is no evidence to support it, or if, after review of the entire record, we are left with a definite and firm conviction a mistake has been made. Simburger v. Simburger, 2005 ND 139, ¶ 12, 701 N.W.2d 880.

[¶ 11] The trial court found that the domestic violence presumption against granting custody to Thompson was triggered by two incidents:

The Court finds there has been domestic violence by Thompson against Olson. In her Application for a Domestic Violence Protection Order dated March 29, 1999, Olson related an earlier incident that occurred on or about August 9, 1998. Although she used the date July 9, 1998, Thompson put into evidence Plaintiff's Exhibit 7, which is a copy of a medical report from Turtle Lake Clinic dated August 10, 1998, for a perforated eardrum he received as a result of Olson slapping him in the ear during an altercation on August 9, 1998, thus establishing the date and that violence occurred. She reported that while she was pregnant with [Mary], Thompson assaulted her to get cigarettes away from her as he didn't want her to smoke while she was pregnant. Encouraging her not to smoke while pregnant was a good idea, but holding her to the ground and sitting on her stomach while trying to choke her gave her a self defense right to force him off of her. Thompson denies Olson's report of this incident, but the Court finds Olson's description of the event is more credible than Thompson's denial or his assertion that he was assaulted without provocation by Olson. The Court finds this incident of domestic violence did occur and did involve "the infliction of 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," as defined in NDCC 14-07.1-01(2).

The Court also finds Thompson inflicted "serious bodily injury" on Olson on March 27, 1999, when he threw her out of their house because he found a copy of a letter she had written to an inmate while she was working as a...