Thomas v. Thomas , 2019 ND 299 ( 2019 )

Filed 12/12/2019 by Clerk of Supreme Court
IN THE SUPREME COURT
STATE OF NORTH DAKOTA
2019 ND 299Matthew Adam Thomas, Plaintiff and Appellant
v.
SummerLee Candy Thomas, Defendant
and
State of North Dakota, Statutory Real Party in Interest
No. 20190094
Appeal from the District Court of Cass County, East Central Judicial District,
the Honorable Steven L. Marquart, Judge.
AFFIRMED IN PART AND REMANDED WITH INSTRUCTIONS.
Opinion of the Court by McEvers, Justice.
Tasha M. Gahner, Fargo, ND, for plaintiff and appellant; submitted on brief.
Thomas v. Thomas
No. 20190094
McEvers, Justice.
[¶1] Matthew Thomas appeals from a civil judgment granting the parties
joint residential responsibility of the children. We affirm in part and remand
while retaining jurisdiction under N.D.R.App.P. 35(a)(3) with instructions that
the district court make specific findings.
[¶2] Matthew and SummerLee Thomas were married in 2008. Matthew and
SummerLee have two children, H.M.T., born in 2008, and C.M.T., born in 2009.
In May 2018 Matthew initiated a divorce proceeding, citing irreconcilable
differences. Following trial in February 2019, the district court issued its
findings of fact, conclusions of law, and order for judgment. A judgment was
entered accordingly, granting an absolute decree of divorce, distributing
assets, and giving SummerLee and Matthew joint residential responsibility of
H.M.T. and C.M.T.
[¶3] Matthew appeals, arguing the district court erred when applying the
best interest factors.
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.
Dickson v. Dickson, 2018 ND 130, ¶ 7, 912 N.W.2d 321.
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I
[¶4] Matthew argues the best interest factors (a) and (c) are not supported by
the evidence. Section 14-09-06.2(1)(a) and (c), N.D.C.C., provides in relevant
part:
a. The love, affection, and other emotional ties existing between
the parents and child and the ability of each parent to provide the
child with nurture, love, affection, and guidance.
....
c. The child’s developmental needs and the ability of each parent
to meet those needs, both in the present and in the future.
[¶5] “A district court has substantial discretion in making a custody decision,
but it must consider all of the factors listed in N.D.C.C. § 14-09-06.2(1)(a)-(m).”
Cox v. Cox, 2000 ND 144, ¶ 10, 613 N.W.2d 516. “A separate finding is not
required for each statutory factor, but the court’s findings should be stated
with sufficient specificity so we can understand the factual basis for its
decision.” Id.[¶6] Matthew argues the district court’s findings under factor (a) are not
supported by the evidence. Matthew’s argument surrounds an incident when
H.M.T., then ten years old, was having conversations with an adult male
online. Matthew argues the court’s finding under (a) was not supported by the
evidence. Matthew argues the finding was contrary to the messages viewed by
the parenting investigator and SummerLee admitting at trial she knew H.M.T.
was talking to an adult male online. A district court has substantial discretion
in making a custody decision. Cox, 2000 ND 144, ¶ 10, 613 N.W.2d 516. On
appeal, we do not reweigh conflicting evidence or judge the credibility of
witnesses. Dronen v. Dronen, 2009 ND 70, ¶ 7, 764 N.W.2d 675. SummerLee
testified she was aware H.M.T. and the adult male had talked, but was not
aware they were talking in an inappropriate manner, and when H.M.T.
brought it up SummerLee told H.M.T. to stop talking to him. Based on
SummerLee’s testimony, the court could find SummerLee “was not aware of
this when it happened, and when she found out about it, she stopped it.”
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[¶7] Matthew argues if the facts do not support the evidence under factor (a),
the facts are not supported under factor (c) either. He does not allege any law
or facts to support this assertion. “Issues are not adequately briefed when an
appealing party fails to cite any supporting authority, and we will not consider
them.” Frith v. N.D. Workforce Safety & Ins., 2014 ND 93, ¶ 25, 845 N.W.2d
892. We conclude the district court’s findings under factors (a) and (c) are not
clearly erroneous.
II
[¶8] Matthew also argues the district court failed to apply an admitted
pattern of violence and focused instead on serious bodily injury in regards to
N.D.C.C. § 14-09-06.2(1)(j). Matthew contends the word “or” in the statute
should apply here and the court erred by solely focusing on serious bodily
injury.
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.
N.D.C.C. § 14-09-06.2(1)(j) (emphasis added).
[¶9] “When a district court addresses whether evidence of domestic violence
triggers the presumption under that statute, we require specific findings and
conclusions regarding the presumption so we are not left guessing as to the
court’s rationale regarding the application of the presumption.” Gietzen v.
Gabel, 2006 ND 153, ¶ 9, 718 N.W.2d 552. “The district court’s findings should
be sufficiently detailed to allow this Court to understand the basis for its
decision.” Mowan v. Berg, 2015 ND 95, ¶ 9, 862 N.W.2d 523.
[¶10] Here, the district court, in analyzing factor (j), said:
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Matthew asserts, and Summer agrees, that she slapped him
multiple times in front of the children. This occurred when
Summer found out that Matthew was leaving her and had been
having an affair.
N.D. Cent. Code § 14-07.1-01(2) states as follows:
“Domestic violence” includes 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
household members.
Here, this activity took place in front of the children, and the
children, in their discussions with the parenting investigator, still
recalled it.
The Court concludes that these actions do constitute domestic
violence, but because no serious bodily injury resulted, it does not
create any presumption.
This factor, however, favors Matthew.
[¶11] The purpose of an appeal is to review the actions of the district court.
State v. Dockter, 2019 ND 203, ¶ 8, 932 N.W.2d 98. The court made specific
findings, finding that SummerLee slapped Matthew “multiple times.” The
court also found the presumption did not apply. However, the court, in its
conclusion that the presumption did not apply did not determine if its finding
constituted a pattern of domestic violence within a reasonable time proximate
to the proceeding. The conclusion on the presumption is not specific enough
for this Court to understand the court’s rationale and we are left to guess the
basis for the court’s decision. We remand with instructions for the court to
address whether the facts presented triggered the presumption based on a
pattern of domestic violence under N.D.C.C. § 14-09-06.2(1)(j), and if so,
whether the presumption has been rebutted.
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III
[¶12] Additionally, Matthew argues the district court erred by failing to
include all of the stipulated parenting plan or make findings that the terms
were not in the children’s best interests.
[¶13] A district court is not bound to accept stipulations regarding custody and
care of children if it finds that it is not in the best interests of the child to do
so. Tiokasin v. Haas, 370 N.W.2d 559, 562 (N.D. 1985). See also Zeller v.
Zeller, 2002 ND 35, ¶ 16, 640 N.W.2d 53.
[¶14] Most, but not all, of the stipulated agreement is in the district court’s
judgment and order. However, the court did not make findings regarding the
portions of the stipulated agreement that were not part of the judgment and
order. The court is not bound to accept the stipulation, but if it does not, it
must make findings that the stipulation is not in the best interests of the
children. Again, “[t]he district court’s findings should be sufficiently detailed
to allow this Court to understand the basis for its decision.” Mowan, 2015 ND
95, ¶ 9, 862 N.W.2d 523. We are unable to understand why the court adopted
only portions of the stipulated agreement. We remand with instructions that
the court include the stipulations or make findings why the stipulations were
not in the best interests of the children.
IV
[¶15] For the reasons discussed in this opinion, we affirm in part and remand
while retaining jurisdiction under N.D.R.App.P. 35(a)(3) with instructions that
the district court make specific findings.
[¶16] Lisa Fair McEvers
Daniel J. Crothers
Jerod E. Tufte
Jon J. Jensen
Gerald W. VandeWalle, C.J.
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