Thomas v. Thomas , 2020 ND 18 ( 2020 )

Filed 01/23/2020 by Clerk of Supreme Court
IN THE SUPREME COURT
STATE OF NORTH DAKOTA
2020 ND 18Matthew 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, AS MODIFIED, 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] In Thomas v. Thomas, 2019 ND 299, 936 N.W.2d 109, this Court
affirmed a civil judgment in part and remanded with instructions while
retaining jurisdiction under N.D.R.App.P. 35(a)(3). After the district court
made amended findings and conclusions in accordance with the instructions,
Matthew Thomas argues there are additional errors in the amended findings
and conclusions. We affirm, as modified, with instructions.
[¶2] Matthew Thomas and SummerLee Thomas were married in 2008 and
have two children, H.M.T. and C.M.T. In 2018, a divorce was initiated and
following trial in February 2019, the district court issued a judgment, granting
the parties joint residential responsibility of the children. Matthew Thomas
appealed the judgment and argued the court erred in applying the best interest
factors. Matthew Thomas argued factors (a) and (c) were not supported by the
evidence. He also argued the court erred in applying factor (j) by not applying
a pattern of domestic violence. He additionally argued the 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. This Court affirmed the court’s
finding on factors (a) and (c), but remanded with instructions for the court to
further specify its reasoning on factor (j) and to include the stipulated
parenting plan or make findings that the terms were not in the best interests
of the children. Thomas, 2019 ND 299, ¶¶ 7, 11, 14, 936 N.W.2d 109.
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[¶3] Matthew Thomas argues the district court erred by finding there was
domestic violence, but the violence was not a pattern that triggered the
statutory presumption that the parent perpetrating domestic violence may not
be awarded residential responsibility of the child.
[¶4] A district court’s determination whether the domestic violence
presumption is applicable under N.D.C.C. § 14-09-06.2(1)(j) is a finding of fact
which will not be reversed unless it is clearly erroneous. Gonzalez v. Gonzalez,
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2005 ND 131, ¶ 6, 700 N.W.2d 711. A court’s findings on whether the evidence
of domestic violence triggers the presumption under the statute require
specific factual findings and conclusions regarding the presumption so we are
not left guessing as to the court’s reasoning for applying or not applying the
presumption. Id.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.
[¶5] On remand, the district court found SummerLee Thomas slapped
Matthew Thomas on two occasions in front of the children, once in May 2017
and again in April 2018. The court concluded these two incidents do not trigger
the presumption based on a pattern of domestic violence.
[¶6] Matthew Thomas contends the court’s prior finding was SummerLee
Thomas slapped Matthew Thomas “multiple times” which is contradictory
from “two occasions” and the evidence on the record. “Multiple” means “more
than one or once.” Webster’s New World Dictionary 935 (2d ed. 1980). Two
occasions is more than one, or “multiple.” On remand, the court was required
to make specific findings regarding the presumption and concluded these two
instances were domestic violence, but not a pattern within a reasonable time
proximate to the proceeding. Matthew Thomas argues the evidence shows
there were more than two instances, which creates a pattern. The instances
Matthew Thomas asserts as domestic violence were “altercations” between
SummerLee Thomas and her friend and her friend’s husband and an “incident”
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with her brother. These events either are not domestic violence or are not
specific enough to leave us with a definite and firm conviction a mistake has
been made. The parenting investigator found two instances of domestic
violence. There is sufficient evidence to support the court’s findings and the
findings support the court’s conclusion there was domestic violence, but the
domestic violence was not a pattern. The court did not err.
II
[¶7] Matthew Thomas also argues the amended findings do not include all of
the stipulated parenting plan terms or findings on why these terms are not in
the children’s best interests.
[¶8] A district court is not bound to accept stipulations regarding custody and
care of children if it finds it is not in the best interests of the child to do so.
Zeller v. Zeller, 2002 ND 35, ¶ 16, 640 N.W.2d 53; Tiokasin v. Haas, 370 N.W.2d
559, 562 (N.D. 1985).
[¶9] On remand, the district court included most of the provisions from the
stipulation, but did not adopt the agreement verbatim. A court does not err by
not adopting the exact language of the parties. With the exception of one
provision, the court’s language does not make substantive changes to the terms
of the stipulation. Although the court did not err by using its own language to
reflect the parties’ stipulation, the court did not include “children’s uninsured
health care expenses” or make findings on why this provision was not
incorporated. The court erred by not accepting this provision of the stipulation
or making findings regarding why it was not in the best interests of the
children. We direct the court to enter an amended judgment accepting the
portion of the stipulation regarding “children’s uninsured health care
expenses.”
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III
[¶10] For the reasons discussed in this opinion, we affirm, as modified, with
instructions.
[¶11] Lisa Fair McEvers
Gerald W. VandeWalle
Daniel J. Crothers
Jerod E. Tufte
Jon J. Jensen, C.J.
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