Queen v. Martel , 2023 ND 32 ( 2023 )

FILED
IN THE OFFICE OF THE
CLERK OF SUPREME COURT
FEBRUARY 23, 2023
STATE OF NORTH DAKOTA
IN THE SUPREME COURT
STATE OF NORTH DAKOTA
2023 ND 32Lee P. Queen, Plaintiff and Appellant
v.
Kimber L. Martel, Defendant and Appellee
and
State of North Dakota, Statutory Real Party in Interest and Appellee
No. 20220121
Appeal from the District Court of Morton County, South Central Judicial
District, the Honorable Cynthia M. Feland, Judge.
AFFIRMED.
Per Curiam.
Theresa L. Kellington (on brief), Bismarck, N.D., for plaintiff and appellant.
Alex S. Kelsch (on brief), Mandan, N.D., for defendant and appellee.
Sheila K. Keller (on brief), Special Assistant Attorney General, Bismarck,
N.D., for statutory real party in interest and appellee.
22
Queen v. Martel
No. 20220121
Per Curiam.
[¶1] Lee Queen appealed from a judgment awarding him and Kimber Martel
equal residential responsibility of their minor child, H.L.Q., and ordering child
support. In Queen v. Martel, 2022 ND 178, ¶ 8, 980 N.W.2d 914, we concluded
the district court failed to make sufficient findings of fact under N.D.C.C. § 14-
09-06.2(1)(j) and remanded for further findings and, if necessary, to reassess
its award of residential responsibility, retaining jurisdiction under
N.D.R.App.P. 35(a)(3)(B).
[¶2] On remand, the district court found that there was a rebuttable
presumption under N.D.C.C. § 14-09-06.2(1)(j) that Queen may not be awarded
residential responsibility because he had perpetrated domestic violence
against Martel resulting in serious bodily injury, and that Queen did not rebut
the presumption. The court entered an amended judgment awarding Martel
primary residential responsibility and ordering Queen to pay child support in
the amount of $1,018 per month, which eliminated Martel’s child support
obligation in light of the change in residential responsibility. Upon request by
the parties, this Court ordered supplemental briefing.
[¶3] Queen argues the district court clearly erred in finding that N.D.C.C.
§ 14-09-06.2(1)(j) applies and that he did not overcome the rebuttable
presumption, awarding Martel primary residential responsibility, and
calculating his child support obligation. We conclude the district court’s
findings on the best interests factors, including N.D.C.C. § 14-09-06.2(1)(j);
primary residential responsibility; and child support calculations are not
clearly erroneous. The amended judgment is summarily affirmed under
N.D.R.App.P. 35.1(a)(2).
[¶4] Jon J. Jensen, C.J.
Lisa Fair McEvers
Jerod E. Tufte
1
Douglas A. Bahr
Bruce B. Haskell
[¶5] The Honorable Bruce B. Haskell, Surrogate Judge, sitting in place of
Crothers, J., disqualified.
222