Wisnewski v. Wisnewski
| Decision Date | 29 June 2020 |
| Docket Number | No. 20190209,20190209 |
| Citation | 945 N.W.2d 331 |
| Parties | Alicia WISNEWSKI, Plaintiff and Appellant v. Timothy WISNEWSKI, Defendant and Appellee |
| Court | North Dakota Supreme Court |
Michael L. Gjesdahl (argued) and Kari A. Losee (appeared), Fargo, ND, for plaintiff and appellant.
Erica L. Chisholm (argued) and Jonathan L. Green (on brief), Wahpeton, ND, for defendant and appellee.
[¶1] Alicia Wisnewski appeals from a divorce judgment distributing property, awarding spousal support, declining to award attorney's fees, determining parenting time, decisionmaking responsibility, and child support. Alicia Wisnewski argues the district court's findings on domestic violence are insufficient and the finding that the statutory domestic violence presumption was rebutted is clearly erroneous. She also argues the court erred in determining joint decisionmaking responsibility, distributing property, allocating debts, failing to award attorney's fees, and in determining child support and spousal support. We affirm in part, reverse in part, and remand.
[¶2] Alicia Wisnewski and Timothy Wisnewski were married in 1997 and have three children together, A.R.W., E.C.W., and I.A.W. Alicia Wisnewski works as a veterinarian, is the sole owner of a veterinary center, a partner in an animal boarding facility, and was mainly responsible for the household bills. For 18 years, Timothy Wisnewski was self-employed with his own tree service and generally did not work during the months of October through April. On December 28, 2017, the parties separated after an incident of domestic violence. Stemming from the incident, Timothy Wisnewski was charged and plead guilty to felony C aggravated assault domestic violence and felony C interfering with an emergency call. Prior to initiation of the divorce, a permanent domestic violence order was entered to protect Alicia Wisnewski and the minor children. A divorce action was initiated in June 2018. A trial was held April 4 and 5, 2019.
[¶3] The district court heard conflicting testimony. Timothy Wisnewski testified he stayed home with the children during his time off work. Alicia Wisnewski testified Timothy Wisnewski only stayed home with the children as infants, and once the children started preschool, she was the primary caretaker and often had to have friends and co-workers help watch the children while she worked. Alicia Wisnewski testified that during the marriage, Timothy Wisnewski would smoke marijuana, drink alcohol excessively, drive drunk and high, and alleged approximately twenty years of substantial verbal, physical, and sexual abuse, some of which Timothy Wisnewski corroborated.
[¶4] Alicia Wisnewski testified she is afraid of Timothy Wisnewski as he told her on multiple occasions he could kill her. According to Alicia Wisnewski, he also said if she dated someone, he would kill them both. She described that initially the abuse was verbal, but the physical abuse began to "ramp up" in the last year and escalated until December 28, 2017.
[¶5] Alicia Wisnewski testified she stopped sleeping in the bedroom and slept on the couch for last five or six months of their marriage. Timothy Wisnewski's testimony was consistent on this point. She stated she slept on the couch because he raped her many times.
[¶6] Alicia Wisnewski testified that in February 2017, Timothy Wisnewski choked her, bit her, and threw a heavy keychain at her head after she said she would not have sex with him. Pictures of bite marks on Alicia Wisnewski were introduced at trial.
[¶7] Alicia Wisnewski testified that on September 1, 2017, after she told Timothy Wisnewski not to touch her, he yelled expletives at her, said he would give her something to be scared about, grabbed her wrists, pulled her off the couch, and kneed her in the jaw. Alicia Wisnewski testified he said he would cut her head off, they would not find her, and made a decapitation motion. Alicia Wisnewski stated their child, A.R.W., was on the couch asleep, woke up, and Timothy Wisnewski told A.R.W. "mom wouldn't have sex" and left the room. Alicia Wisnewski testified A.R.W. told her he had faked sleeping and heard it all. Alicia Wisnewski testified that later the next day, Timothy Wisnewski grabbed her from behind, pushed her on the bed, pinned down her shoulders with his knees, and tried to masturbate onto her face. Timothy Wisnewski denied doing these things when he testified.
[¶8] Alicia Wisnewski alleged Timothy Wisnewski assaulted her on November 3, 2017 and chipped her tooth
. She introduced pictures of the chipped tooth and her lip. Timothy Wisnewski testified he chipped Alicia Wisnewski's tooth by accident.
[¶9] Alicia Wisnewski testified that on December 7, 2017, after she told Timothy Wisnewski she was not going to bed with him, he grabbed her breast and twisted it hard, causing her to drop to the ground. She testified he grabbed her neck, pulled her onto the couch, wrapped his legs around her so she could not move, "kissed" her by covering her nose and mouth with his mouth, squeezed her so she could not breathe, and said "now you should be scared because I can kill you any time." At trial, Alicia Wisnewski produced pictures of bruises that resulted on her shoulder, on her cheek, on her chin, and on her thigh. Timothy Wisnewski denied doing these things.
[¶10] Alicia Wisnewski testified that on December 17, 2017, Timothy Wisnewski came into the living room and told her to go to the bedroom. She told him no and he yelled expletives at her, threw pillows at her, sat on her chest, read Bible verses about wives submitting to their husbands, and shoved his fingers into her crotch, trying to put his fingers into her vagina through her leggings.
[¶11] Alicia Wisnewski testified that on December 28, 2017, she was working when Timothy Wisnewski told her to come to bed. She said no, and he sat on her legs, closed her laptop and said "give me some love." She told him to get off, and he threw the laptop on the floor. She testified he grabbed her ponytail, licked her face, rubbed his facial hair on the side of her face, and told her Alicia Wisnewski said her face was red from him rubbing his whiskers on her face and introduced pictures at trial. She testified he then grabbed her around the chest and pushed her face into the couch, leaving her unable to breathe. She testified A.R.W. came into the room and said Timothy Wisnewski then let her go and she grabbed her cell phone and went into the bathroom, but he came in and pried the phone out of her hands. She testified she then grabbed the cordless phone, and Timothy Wisnewski wrestled the cordless phone from her. When he left, she called 911.
[¶12] Timothy Wisnewski testified that on December 28, 2017 he asked Alicia Wisnewski for a kiss and hugged her. He agreed she tried to get away and he would not let her. He agreed he licked her face and testified he gave her a "whisker rub" but denied rubbing her face raw or squeezing her so she could not breathe or pushing her face into the couch. He agreed the children were awakened by the incident and two of his children appeared, and that A.R.W. had a knife and told Timothy Wisnewski to stop hurting his mom. Timothy Wisnewski agreed he let Alicia Wisnewski go, chased her, and grabbed the phone from her.
[¶13] Following this incident, Timothy Wisnewski was arrested, charged with aggravated assault and interference with an emergency call. He was released with the bail requirement not to have contact with Alicia Wisnewski by phone or in person. Alicia Wisnewski testified he violated this condition the day he was released; she came home and found a note on the counter, saying he had taken all the guns and ammo. She further testified Timothy Wisnewski was charged for violating the no contact order. As part of the sentence for the aggravated assault, the court ordered, as a condition of probation, Timothy Wisnewski continue treatment with Dr. Krislea Wegner, a licensed psychologist.
[¶14] The district court received in evidence during the trial a copy of a permanent domestic violence protection order entered in March 2018. In the order, the court found Timothy Wisnewski committed domestic violence and also that he committed a pattern of domestic violence. The court also received in evidence an order finding Timothy Wisnewski in contempt for failing to follow requirements of the domestic violence protection order. The order specifically noted Timothy Wisnewski failed to get a psychiatric evaluation, participate in the STAND program or individual therapy sessions for his tendency to form maladaptive relationships, obtain anger management training
skills, participate in the appropriate level of chemical health treatment, or receive parent education on healthy discipline and other parent/child relationship issues recommended by Dr. Wegner.
[¶15] Dr. Wegner also testified at the trial. Dr. Wegner testified Timothy Wisnewski admitted to her he called Alicia Wisnewski expletives, used marijuana daily, drank twelve beers a day, and spent time in his "clubhouse" smoking marijuana and drinking. Dr. Wegner testified the protection order placed the condition of continuing treatment with her, but Timothy Wisnewski had not continued treatment with her. Dr. Wegner made six recommendations and he did not follow any of the recommendations and treatment at Hope Unit was not part of her recommendations. Timothy Wisnewski testified he went to Hope Unit outpatient treatment, he had been sober for 15 months, and he did not use marijuana anymore.
[¶16] Dr. Wegner testified she also interviewed A.R.W., who told Dr. Wegner his father drank every day and he knew his father smoked marijuana. A.R.W. also indicated he knew his father was hurting his mother and could hear her screaming at night. He indicated he did not intervene because he did not want to cause trouble, except in the final instance...
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