Zuraff v. Reiger

• Decision Date: 05 June 2018
• Docket Number: No. 20170441,20170441
• Citation: 911 N.W.2d 887
• Parties: Matthew ZURAFF, Plaintiff and Appellee v. Natasha REIGER, Defendant and Appellant and State of North Dakota, Statutory Real Party in Interest
• Court: North Dakota Supreme Court

911 N.W.2d 887

Matthew ZURAFF, Plaintiff and Appellee
v.
Natasha REIGER, Defendant and Appellant
and
State of North Dakota, Statutory Real Party in Interest

No. 20170441

Supreme Court of North Dakota.

Filed June 5, 2018
Rehearing Denied July 11, 2018

Brittany T. Wollin (argued) and Megan Essig (on brief), Grand Forks, ND, for plaintiff and appellee.

Benjamin C. Pulkrabek (argued), Mandan, ND, for defendant and appellant.

Jensen, Justice.

911 N.W.2d 889

¶ 1] Natasha Reiger appeals from a district court judgment granting primary residential responsibility of J.Z. to Matthew Zuraff. We affirm the district court’s judgment granting primary residential responsibility to Zuraff.

I

[¶ 2] Reiger and Zuraff are the parents of J.Z., born in 2014. In January 2017, Zuraff moved for primary residential responsibility of J.Z. The district court held a bench trial in September 2017 to decide residential responsibility of J.Z. At the time of trial, Reiger was living in Bismarck, North Dakota with her father, and Zuraff was living in Parkland, Washington with his mother.

[¶ 3] Social services first became involved with the family because of a positive methamphetamine screening when J.Z. was born. Both Zuraff and Reiger have a history of methamphetamine use, although Reiger testified to being sober for approximately ten months and Zuraff testified he was sober for over three years. Both parents have criminal histories related to drug use, and Zuraff was incarcerated for approximately seven months after J.Z. was born.

[¶ 4] Social services intervened again because Reiger left J.Z. with her mother for days at a time, and Reiger’s mother could not locate Reiger. Zuraff was incarcerated at that time. J.Z. was then the subject of a permanency order and placed with Reiger’s mother. J.Z. was later placed with Reiger’s father, due to Reiger’s mother’s health problems.

[¶ 5] Reiger testified Zuraff had been physically violent towards her in the past. Zuraff acknowledged he and Reiger engaged in mutual fighting and both were violent towards each other. Zuraff denied hitting Reiger, but admitted to a "body check" using the blunt force of his chest. Zuraff was also previously convicted of a simple assault in which Reiger was the victim. Reiger previously obtained a protection order against Zuraff, which was later dismissed. Reiger said the protection order did not result from violence in their relationship, but from threats Zuraff made to her father.

[¶ 6] After Zuraff was released from incarceration, he moved to Washington and completed the interstate compact process to obtain custody of J.Z. Social services in Washington evaluated Zuraff and recommended J.Z.’s placement with him. Beginning March 1, 2017, the district court approved Zuraff to have custody of J.Z. on a trial basis and return to Washington. Despite the district court’s order, Reiger and her father attempted to leave the courthouse with J.Z. As a result, court staff requested a deputy sheriff to stay with Zuraff until he was out of town. The North Dakota social worker assigned to J.Z. declined to recommend who should be awarded primary residential responsibility, but noted Zuraff was previously the more appropriate and stable option.

[¶ 7] After trial, the district court entered a judgment granting primary residential responsibility to Zuraff. The district court concluded N.D.C.C. § 14–09–06.2(1) factors (a), (b), (d), (e), and (h) favored Zuraff. The district court concluded

[911 N.W.2d 890

factor (c) slightly favored Zuraff, and factors (f), (g), (i), (k), and (l ) were neutral.

¶ 8] Relating to factor (j), the district court concluded there was evidence of domestic violence, but did not apply the presumption against awarding primary residential responsibility to Zuraff because there was not sufficient evidence to find that the domestic violence involved serious bodily injury. Although it did not apply the presumption, the district court found factor (j) weighed in Reiger’s favor.

[¶ 9] The district court also considered other evidence under factor (m), questioning Reiger’s dedication to parenting J.Z. because of her lack of a relationship with another child and relatively recent sobriety. The district court concluded it was in J.Z.’s best interest to grant primary residential responsibility to Zuraff, subject to Reiger’s reasonable parenting time. Reiger appeals.

II

[¶ 10] On appeal, Reiger argues the district court erred by concluding there was no evidence of domestic violence involving serious bodily injury that required application of the presumption provided in N.D.C.C. § 14–09–06.2(1)(j). Reiger also argues the district court erred in concluding it could administer an oath to a witness in a different state.

[¶ 11] This Court reviews a district court’s decision on primary residential responsibility as follows:

[The district] court’s award of primary residential responsibility is a finding of fact, which will not be reversed on appeal unless it is clearly erroneous or it is not sufficiently specific to show the factual basis for the decision. 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, although there is some evidence to support it, on the entire record, we are left with a definite and firm conviction a mistake has been made. Under the clearly erroneous standard, we do not reweigh the evidence nor reassess the credibility of witnesses, and we will not retry a custody case or substitute our judgment for a district court’s initial custody decision merely because we might have reached a different result. The district court has substantial discretion in making a custody determination, but it must consider all of the best-interest factors. Although a separate finding is not required for each statutory factor, the court’s findings must contain sufficient specificity to show the factual basis for the custody decision.

Brouillet v. Brouillet , 2016 ND 40, ¶ 7, 875 N.W.2d 485 (citations and quotation marks omitted).

A

[¶ 12] Reiger argues the district court ignored the evidence presented about domestic violence, and it should have specifically analyzed the domestic violence as required by N.D.C.C. § 14–09–06.2(1)(j). Section 14–09–06.2(1)(j), N.D.C.C., provides:

In determining parental rights and responsibilities, 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

[911 N.W.2d 891

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 residential responsibility for the child. This presumption may be overcome only by clear and convincing evidence that the best interests of the child require that parent have residential responsibility. The court shall cite specific findings of fact to show that the residential responsibility 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. A court may consider, but is not bound by, a finding of domestic violence in another proceeding under chapter 14–07.1.

Domestic violence is defined as:

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.

N.D.C.C. § 14–07.1–01(2).

[¶ 13] Whether injuries rise to the level of...