Dickson v. Dickson

912 N.W.2d 321

Jennifer L. DICKSON, Plaintiff and Appellant

v.Brent D. DICKSON, Defendant and Appellee

No. 20170334

Supreme Court of North Dakota.

Filed June 5, 2018

Thomas E. Kalil, Williston, ND, for plaintiff and appellant.

Taylor D. Olson, Williston, ND, for defendant and appellee.

McEvers, Justice.

[¶ 1] Jennifer Dickson appeals from a district court order denying her motion to modify residential responsibility of the parties’ minor children. We conclude the district court failed to correctly apply the law and make necessary findings regarding the best interest factors, including the factor on domestic violence. We reverse and remand for further proceedings.

I

[¶ 2] Brent Dickson and Jennifer Dickson were divorced in August 2016. Brent and Jennifer have two children, and the stipulated divorce judgment provided for equal residential responsibility between them. In November 2016, the district court held a hearing in a separate case on allegations of domestic violence arising from an incident in October 2016. The court entered a domestic violence protection order against Brent.

[¶ 3] In February 2017, Jennifer moved for modification of residential responsibility, seeking primary residential responsibility. The district court held a hearing on the motion in June 2017. At the hearing, evidence was presented that in October 2016, Brent called Jennifer after he had been drinking and demanded she meet him, threatening to kill himself. Brent sent Jennifer a text with a picture of himself with a rifle in his mouth. Brent texted Jennifer to come pick up the kids and then sent a message to her indicating the picture was "[t]he last thing you will ever get from me. Goodbye." Brent then called Jennifer multiple times. According to Jennifer, shortly after 3:00 a.m., she agreed to meet Brent in a parking lot to discuss the situation. During their meeting, Brent picked up a firearm and demanded Jennifer pick the children up from his house. Jennifer refused and Brent drove away as a security guard approached. Jennifer remained at the parking lot until 3:46 a.m., when her 16-year-old daughter called to inform her that Brent took both children to her house. Jennifer called the police and officers met her at her house. Officer Craig Ware testified he thought Brent had consumed five or more beers, had an odor of alcohol, and given his behavior and mental state, assumed Brent "was intoxicated and/or suffering from some sort of mental illness." Officers transported Brent for a psychiatric evaluation. In Jennifer’s affidavit in support of the protection order, she described two similar incidents of Brent threatening suicide with a gun.

[¶ 4] In addition to the events occurring in October 2016, evidence was presented that Brent exchanged multiple text messages with his 16-year-old daughter. In the text messages, Brent: (1) tells his daughter to delete the messages from him so that he does not get in trouble; (2) indicates his "therapist" told him not to talk to her anymore until he can get his anger under control; (3) states multiple times that Jennifer won and now gets to keep the kids away from him; (4) tells his daughter Jennifer wants full custody and that he does not know what to do, saying goodbye and that he loves them; (5) informs his daughter he did not have a place to live and was living out of his truck; (6) asks his daughter to have dinner with him and then tells her he might go to jail if she does, so she needs to delete the messages; and (7) places blame on the daughter and Jennifer for him being arrested. The daughter replied telling Brent to stop acting like a child, indicated she wants him to get help for her and her sister’s safety, and told him to stop saying they do not want him in their lives. Jennifer testified the children were impacted by the incident occurring in October 2016, they have withdrawn from people, and tend to act out. Jennifer further testified the 16-year-old daughter was in counseling.

[¶ 5] During the hearing, the parties inquired whether the statutory rebuttable presumption of domestic violence applied to the case. The district court stated "I don’t need to make another finding because it’s already a finding." The court further clarified, "So, yes, I will note that there is the rebuttable presumption in this case."

[¶ 6] In July 2017, the district court denied the motion for primary residential responsibility. Jennifer then moved for a stay of the court’s order pending appeal. The court again denied her motion. Jennifer timely appealed the order denying her motion to modify residential responsibility.

II

[¶ 7] Jennifer argues the district court erred in denying her motion to modify residential responsibility of the parties’ minor children, because it failed to properly analyze the best interest factors, including the statutory presumption on domestic violence.

We exercise a limited review of child custody awards. A district court’s decisions on child custody, including an initial award of custody, are treated as findings of fact and will not be set aside on appeal unless clearly erroneous. 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 if the reviewing court, on the entire evidence, is left with a definite and firm conviction a mistake has been made. Under the clearly erroneous standard of review, we do not reweigh the evidence or 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. A choice between two permissible views of the weight of the evidence is not clearly erroneous, and our deferential review is especially applicable for a difficult child custody decision involving two fit parents.

Thompson v. Thompson , 2018 ND 21, ¶ 7, 905 N.W.2d 772 (quoting Jelsing v. Peterson , 2007 ND 41, ¶ 11, 729 N.W.2d 157 ). A court’s decision whether to modify residential responsibility is also a finding of fact, which will not be reversed on appeal unless it is clearly erroneous. Valeu v. Strube , 2018 ND 30, ¶ 8, 905 N.W.2d 728.

Section 14–09–06.6, N.D.C.C., governs the post-judgment modification of primary residential responsibility. Generally, a parent may move to modify primary residential responsibility under the framework provided by N.D.C.C. § 14–09–06.6. See Regan v. Lervold , 2014 ND 56, ¶ 12, 844 N.W.2d 576. When the parents have joint or equal residential responsibility, however, an original determination to award "primary residential responsibility" is necessary. See Maynard v. McNett , 2006 ND 36, ¶ 21, 710 N.W.2d 369 (original determination of primary residential responsibility is appropriate when the parties have joint residential responsibility and one party wishes to relocate); see also N.D.C.C. § 14–09–00.1(6) (" ‘Primary residential responsibility’ means a parent with more than fifty percent of the residential responsibility."); N.D.C.C. § 14–09–00.1(7) (" ‘Residential responsibility’ means a parent’s responsibility to provide a home for the child."). This is also the case when the earlier residential responsibility determination is based on the parties’ stipulation. See Wetch v. Wetch , 539 N.W.2d 309, 312–13 (N.D. 1995) ("if the previous custody placement was based upon the parties’ stipulation and not by consideration of the evidence and court[-]made findings, the [district] court must consider all relevant evidence, ... in making a considered and appropriate custody decision in the best interests of the children").

Mairs v. Mairs , 2014 ND 132, ¶ 7, 847 N.W.2d 785. When a motion to modify residential responsibility is brought less than two years after a divorce judgment is entered establishing residential responsibility, a stricter or more rigorous modification standard applies. Laib v. Laib , 2008 ND 129, ¶ 8, 751 N.W.2d 228 (citations omitted). The standard applicable to this case is set forth in N.D.C.C. § 14–09–06.6(5)(b), which provides "[t]he court may not modify the primary residential responsibility within the two-year period following the date of entry of an order establishing primary residential responsibility unless the court finds the modification is necessary to serve the best interests of the child and ... (b) [t]he child’s present environment may endanger the child’s physical or emotional health or impair the child’s emotional development." See also N.D.C.C. § 14–09–06.6(3)(b). Although N.D.C.C. § 14–09–06.6 refers to motions to modify primary residential responsibilities, this Court has implied the statute applies to motions to modify a judgment where the parties had stipulated to joint residential responsibilities. Hageman v. Hageman , 2013 ND 29, ¶¶ 5–6, 827 N.W.2d 23.

[¶ 8] Here, Jennifer moved the district court to modify residential responsibility within two years of the parties’ stipulation for joint residential responsibility, triggering the stricter modification standard. The court found Jennifer established a prima facie case and was entitled to an evidentiary hearing.

A

[¶ 9] At the hearing, Jennifer testified she was concerned about her children’s safety and well-being. Jennifer specifically asked the court to clarify whether the rebuttable presumption based on domestic violence applied to her case.

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 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

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