Wessman v. Wessman

• Decision Date: 31 March 2008
• Docket Number: No. 20070069.,20070069.
• Parties: Kari Jane WESSMAN, Plaintiff, Appellant and Cross-Appellee v. Bradley Dale WESSMAN, Defendant, Appellee and Cross-Appellant.
• Court: North Dakota Supreme Court

747 N.W.2d 85

2008 ND 62

Kari Jane WESSMAN, Plaintiff, Appellant and Cross-Appellee v. Bradley Dale WESSMAN, Defendant, Appellee and Cross-Appellant.

No. 20070069.

Supreme Court of North Dakota.

March 31, 2008.

Jerilynn Brantner Adams, Vogel Law Firm, Fargo, N.D. for plaintiff, appellant and cross-appellee.

Stephen R. Dawson, Fargo, N.D., for defendant, appellee and cross-appellant.

MARING, Justice.

[¶ 1] Kari Wessman appeals and Bradley Wessman cross-appeals, from a divorce judgment awarding the parties joint legal and physical custody of their children and awarding Bradley Wessman spousal support. We affirm the district court's award of spousal support to Bradley Wessman and decision not to order counseling for the parties' minor children. However, because we conclude the district court failed to make necessary findings regarding alleged domestic violence, we reverse the court's custody decision and remand for further proceedings.

I

[¶ 2] Kari Wessman and Bradley Wessman were married in 1987, and during the course of their marriage, they had three daughters. In September 2005, Kari Wessman commenced this divorce action. At that time, Kari Wessman also served Bradley Wessman with a petition for protective order and a temporary domestic violence protection order.

[¶ 3] In October 2005, a hearing was held in the district court on Kari Wessman's petition for protective order. After the hearing, the district court issued a memorandum opinion and order finding that domestic violence had occurred. A domestic violence protection order was entered on October 25, 2005, and issued for a period of one year. Before its expiration, Kari Wessman moved to extend the protection order. In December 2006, however, the parties agreed to the entry of a civil restraining order in the divorce action as a part of an interim order. The domestic violence protection order was also specifically terminated by a December 2006 order.

[¶ 4] The district court held a divorce and custody trial in January 2007. After the trial, the court issued findings of fact, conclusions of law, and an order for judgment, in which the court, among other things, awarded the parties joint legal and physical custody of the children and awarded Bradley Wessman spousal support. The divorce judgment was entered in February 2007, from which the parties now appeal.

II

[¶ 5] In his cross-appeal, Bradley, Wessman asserts the amount of spousal support awarded to him is clearly erroneous. Here, the district court awarded Bradley Wessman spousal support of $2,500 per month for fifteen years.

[¶ 6] The district court's spousal support determinations are findings of fact, and its decision on spousal support will not be set aside on appeal unless clearly erroneous. Donlin v. Donlin, 2007 ND 5, ¶ 15, 725 N.W.2d 905. The district court must consider the relevant factors under the Ruff-Fischer guidelines in determining spousal support. Sack v. Sack, 2006 ND 57, ¶ 12, 711 N.W.2d 157. "Property division and spousal support are interrelated and intertwined and often must be considered together." Kostelecky v. Kostelecky, 2006 ND 120, ¶ 14, 714 N.W.2d 845.

[¶ 7] In equitably dividing the parties' marital property, the court awarded Kari Wessman total assets of $1,013,566.60 and total debts of $464,010.70, resulting in a net award of $549,555.90. The court awarded Bradley Wessman total assets of $557,055.90 and total debts of $7,500.00, resulting in a net award of $549,555.90. The court thus awarded the parties' assets and debts such that the net to each party is equal. In awarding Bradley Wessman spousal support, the district court considered the Ruff-Fischer guidelines, including Bradley Wessman's take home pay and amounts he will receive in child support. The district court specifically found that Bradley Wessman was going to need assistance to meet his monthly expenses and to further his education, concluding $2,500 per month for at least fifteen years was a reasonable sum.

[¶ 8] Based upon our review of the record in light of the Ruff-Fischer guidelines, the facts as established in this case, and the distribution of the parties' marital property, we conclude the district court's spousal support award to Bradley Wessman of $2,500 per month for fifteen years was not clearly erroneous.

III

[¶ 9] Kari Wessman argues on appeal that the district court erred in failing to order counseling for the children. We have previously recognized the district court's discretion to order a child to receive counseling if it is in a child's best interests. Hendrickson v. Hendrickson, 2000 ND 1, ¶ 23, 603 N.W.2d 896; see also Johnson v. Schlotman, 502 N.W.2d 831, 835-36 (N.D.1993). We have also concluded the court may even order counseling for a child's parent if it is in the child's best interests. Hendrickson, at ¶ 23.

[¶ 10] In this case, however, the district court rejected Kari Wessman's request for the court to order counseling for the children. The court instead found one of the children to be a "well adjusted teenager" and concluded that "Bradley and Kari need to make these decisions having the best interests of the children in mind." Thus, the district court did not conclude that the children were not to receive counseling, but rather left the decision of the children's best interests on this issue to Bradley Wessman and Kari Wessman. We conclude the district court did not abuse its discretion by not ordering the children to attend counseling.

IV

[¶ 11] Kari Wessman asserts the district court erred in awarding the parties joint physical custody of their minor children. She argues the court clearly erred in finding there was no evidence of domestic violence which would trigger the rebuttable presumption under N.D.C.C. § 14-09-06.2(1)(j).

[¶ 12] A district court's award of custody is treated as a finding of fact and, on appeal, will not be reversed unless it is clearly erroneous under N.D.R.Civ.P. 52(a). Gietzen v. Gabel, 2006 ND 153, ¶ 6, 718 N.W.2d 552. A finding of fact is clearly erroneous 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. Thompson v. Olson, 2006 ND 54, ¶ 10, 711 N.W.2d 226.

[¶ 13] "Under N.D.C.C. § 14-09-06.1, a district court must award custody of a child to the person who will promote the best interests and welfare of the child." Gietzen, 2006 ND 153, ¶ 7, 718 N.W.2d 552. In awarding custody in the best interests and welfare of a child, the district court must consider the factors outlined by N.D.C.C. § 14-09-06.2. Thompson, 2006 ND 54, ¶ 10, 711 N.W.2d 226. Although the court has substantial discretion in a custody decision, the court must consider the relevant factors in N.D.C.C. § 14-09-06.2(1)(a)-(m). Cox v. Cox, 2000 ND 144, ¶ 10, 613 N.W.2d 516. A separate finding is not required for each statutory factor, but the court's findings must be stated with sufficient particularity so this Court can understand the factual basis for the district court's decision. Id. When there is credible evidence of domestic violence, however, it dominates the hierarchy of factors to be considered. Thompson, at ¶ 10; Lawrence v. Delkamp, 2000 ND 214, ¶ 3, 620 N.W.2d 151.

[¶ 14] Section 14-09-06.2(1)(j), N.D.C.C., creates a rebuttable presumption against awarding custody of a child to a domestic violence perpetrator and, in relevant part, provides:

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.... The fact that the abused parent suffers from the effects of the abuse may not be grounds for denying that parent custody. 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.

(Emphasis added.)

[¶ 15] "Domestic violence" is defined in N.D.C.C. § 14-07.1-01(2) and includes: "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." The district court's determination whether the N.D.C.C. § 14-09-06.2(1)(j) domestic violence presumption is applicable is a finding of fact, which will not be reversed on appeal unless clearly erroneous. Gonzalez v. Gonzalez, 2005 ND 131, ¶ 16, 700 N.W.2d 711.

[¶ 16] "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, 2006 ND 153, ¶ 9, 718 N.W.2d 552 (citing Gonzalez, 2005 ND 131, ¶ 6, 700 N.W.2d 711). Although specific factual findings are not required when evidence of domestic violence does not rise to the level to trigger the domestic violence presumption,...