Zimmerman v. Zimmerman, 970057
| Decision Date | 30 September 1997 |
| Docket Number | No. 970057,970057 |
| Parties | Lisa ZIMMERMAN, Plaintiff and Appellee, v. Alan ZIMMERMAN, Defendant and Appellant. Civil |
| Court | North Dakota Supreme Court |
Leslie Bakken Oliver, of Kapsner and Kapsner, Bismarck, for plaintiff and appellee.
Daniel J. Chapman, of Chapman and Chapman, Bismarck, for defendant and appellant.
¶1 Alan Zimmerman appealed from a divorce judgment, asserting the district court's custody award and property division are clearly erroneous. We hold the property division is not clearly erroneous, but we conclude the court made inadequate findings about domestic violence to support its custody award. We affirm the property division, reverse the custody award, and remand for more detailed findings and a redetermination of custody.
¶2 Alan and Lisa Zimmerman were married in 1990 and together have a son, Michael, who was born in January 1991. Lisa filed for divorce in 1994 and, after hearing, the district court granted her a divorce from Alan on the grounds of irreconcilable differences. The trial court divided the marital property and awarded custody of Michael to Lisa, with liberal visitation for Alan.
¶3 Alan asserts the trial court's property division is clearly erroneous. The trial court's property division will not be set aside on appeal unless it is clearly erroneous. Bell v. Bell, 540 N.W.2d 602, 604 (N.D.1995). Under this standard, we reverse only if there is no evidence to support a finding or if, upon a review of the entire evidence, we are left with a definite and firm conviction the trial court has made a mistake. Fenske v. Fenske, 542 N.W.2d 98, 102 (N.D.1996). The parties owned a home and an unimproved lot, which the court ordered to be sold and, after deducting closing costs and other related expenses, the equity divided equally between them. The court delineated specific debts to be paid by each party and divided the personal property. After payment of the debts, Alan received more than half the net worth of the parties' property. Nevertheless, he argues the trial court's property division is clearly erroneous because the court did not adequately consider Alan's parents gave substantial money gifts to Alan and Lisa, totaling $48,000, for the purchase of their home and unimproved lot. While recognizing gifted property is part of the marital estate, Alan argues he should have received a larger share because of his parents' considerable money gifts to Lisa and him.
¶4 Alan's parents specifically testified the money from them was intended to be gifts, not loans, with half the value going to Alan and half to Lisa. Using the court's values, the parties had marital assets valued at $79,495 and marital debt valued at $60,939. Alan, after payment of the debts the court ordered him to pay, received a net equity in the marital estate of $11,300. Under these circumstances, we are not convinced the trial court's property division is clearly erroneous.
¶5 Alan also asserts the trial court's custody award is clearly erroneous and the court's findings underlying its custody award are inadequate.
¶6 Although a trial court's determinations on matters of child custody are treated as findings of fact and are set aside on appeal only if they are clearly erroneous, Freed v. Freed, 454 N.W.2d 516, 518 (N.D.1990), where there is evidence of domestic violence, that evidence must be given special consideration by the trial court. Engh v. Jensen, 547 N.W.2d 922, 924 (N.D.1996). We agree the court's findings about custody, and in particular about domestic violence in the marriage, are inadequate to support its custody decision. In awarding custody of Michael to Lisa the court found "[t]his marriage has been highlighted by several episodes of physical abuse by Alan against Lisa," and "the child's best interests will be met by Lisa having sole custody." These findings by the court are conclusions or findings of ultimate fact, which do not adequately explain the court's basis for its custody award.
¶7 In awarding custody, a trial court must determine what is in the best interests of the child. Section 14-09-06.2, N.D.C.C. Evidence of domestic violence creates a rebuttable presumption against awarding custody to the perpetrator of the domestic violence. Section 14-09-06.2(1)(j), N.D.C.C.; 1 Heck v. Reed, 529 N.W.2d 155, 161 (N.D.1995). Although domestic violence is just one of many factors a trial court must review when determining the best interests of a child, in the hierarchy of factors to be considered, domestic violence predominates when there is credible evidence of it. Huesers v. Huesers, 1997 ND 33, p 7, 560 N.W.2d 219.
¶8 In this case, there is evidence both parents committed acts of domestic violence or perpetrated abusive conduct toward each other and their child. When there is credible evidence of domestic violence by both parents, the trial court must measure the amount and extent of violence by both parents. Helbling v. Helbling, 532 N.W.2d 650, 653 (N.D.1995). The trial court must make detailed findings on the domestic violence issue, and findings which ambiguously allude to the issue are insufficient to support a custody award. Krank v. Krank, 529 N.W.2d 844, 850 (N.D.1995).
¶9 In Owan v. Owan, 1997 ND 50, pp 6, 10, 560 N.W.2d 900, we stated:
The trial court must adequately address the domestic violence issues in its findings to support its custody award when evidence of domestic violence is present. Because of the severe consequences under our statutes of a finding of domestic violence, the trial court must carefully delineate relevant and specific facts in support of its determination. The trial court's failure to do that in this case requires us to...
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