                Filed 2/12/20 by Clerk of Supreme Court

                  IN THE SUPREME COURT
                  STATE OF NORTH DAKOTA

                                2020 ND 36

Royce Don Carlson,                                      Plaintiff and Appellee
      v.
Jill Marie Carlson,                                 Defendant and Appellant



                                No. 20190187

Appeal from the District Court of Stutsman County, Southeast Judicial
District, the Honorable Troy J. LeFevre, Judge.

REMANDED.

Opinion of the Court by VandeWalle, Justice.

James D. Sandsmark, Fargo, ND, for plaintiff and appellee; submitted on brief.

Ashley C. Halvorson, Fargo, ND, for defendant and appellant; submitted on
brief.
                              Carlson v. Carlson
                                No. 20190187

VandeWalle, Justice.

      Jill Carlson appealed from a district court judgment awarding Royce
Carlson primary residential responsibility and decision-making authority over
daycare/afterschool provider decisions and non-emergency medical decisions of
the parties’ minor children. We remand for further findings.

                                        I

      Royce Carlson and Jill Carlson were married in September 2015. Royce
Carlson is the biological father of the parties’ minor children, J.R.C. and C.R.C.
Jill Carlson adopted the children in 2017 when they were approximately four
and five years old. In February 2018, Royce Carlson commenced this divorce
action.

      In February 2019, a two-day trial was held. At trial, Jill Carlson, Jill
Carlson’s mother, and Royce Carlson all testified to an incident in which Royce
Carlson shot a gun into the air during a squabble between Jill Carlson and
J.R.C. Although certain aspects of the testimony were conflicting, Royce
Carlson admitted that he shot a gun into the air during the squabble. Jill
Carlson also testified that Royce Carlson regularly used corporal punishment
to discipline the children. Witnesses called by both parties offered conflicting
testimony on Royce Carlson’s use of corporal punishment to discipline the
children.

      The district court issued findings of fact and conclusions of law and
entered judgment. The district court found best-interest factors a, d, and h
favored Royce Carlson, and factors b, c, e, f, g, k, and l favored neither party.
The district court did not consider any other factors under factor m. Under
factor j the district court found, “There is no credible evidence of domestic
violence in this matter.” The court divided the parties’ assets and debts, and
awarded Royce Carlson primary residential responsibility and decisionmaking
authority over daycare/afterschool provider decisions and decisionmaking
authority over non-emergency medical decisions after consulting Jill Carlson.

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                                        II

       Jill Carlson argues the district court’s findings on best interest factors a,
b, d, e, f, h, j, k, and l under N.D.C.C. § 14-09-06.2 were clearly erroneous.

        “We exercise a limited review of primary residential responsibility
decisions.” Zuo v. Wang, 2019 ND 211, ¶ 11, 932 N.W.2d 360 (citing Grasser v.
Grasser, 2018 ND 85, ¶ 17, 909 N.W.2d 99). “A district court’s decision on
primary residential responsibility is a finding of fact and will not be overturned
on appeal unless clearly erroneous.” Id. “A finding of fact is clearly erroneous
if it is induced by an erroneous view of the law, if no evidence supports it, or if
this Court, on the entire record, is left with a definite and firm conviction a
mistake has been made.” Id. “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
[primary residential responsibility] decision merely because we might have
reached a different result.” Mowan v. Berg, 2015 ND 95, ¶ 5, 862 N.W.2d 523
(quoting Wolt v. Wolt, 2010 ND 26, ¶ 7, 778 N.W.2d 786).

      Under N.D.C.C. § 14-09-06.2(1)(j):

      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 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. If
      necessary to protect the welfare of the child, residential
      responsibility for a child may be awarded to a suitable third


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      person, provided that the person would not allow access to a violent
      parent except as ordered by the court. If the court awards
      residential responsibility to a third person, the court shall give
      priority to the child’s nearest suitable adult relative. The fact that
      the abused parent suffers from the effects of the abuse may not be
      grounds for denying that parent residential responsibility. 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’ 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 or household
members.” N.D.C.C. § 14-07.1-01(2).

      “When credible evidence of domestic violence exists, it ‘dominates the
hierarchy of factors to be considered’ when determining the best interests of
the child under N.D.C.C. § 14-09-06.2.” Mowan, 2015 ND 95, ¶ 8, 862 N.W.2d
523 (quoting Datz v. Dosch, 2013 ND 148, ¶ 18, 836 N.W.2d 598); see Gagnon
v. Gagnon, 2017 ND 67, ¶ 7, 891 N.W.2d 742. “Even if the evidence of domestic
violence does not trigger the statutory presumption under N.D.C.C. § 14-09-
06.2(1)(j), the violence must still be considered as one of the factors in deciding
primary residential responsibility.” Mowan, at ¶ 8 (quoting Law v. Whittet,
2014 ND 69, ¶ 17, 844 N.W.2d 885).

       “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.” Mowan, at ¶ 9
(quoting Gietzen v. Gabel, 2006 ND 153, ¶ 9, 718 N.W.2d 552). “A trial court
cannot simply ignore evidence of family abuse, but must make specific findings
on evidence of domestic violence in making its decision on primary residential
responsibility.” Id. (quoting Law, 2014 ND 69, ¶ 17, 844 N.W.2d 885). “The
district court’s findings should be sufficiently detailed to allow this Court to



                                        3
understand the basis for its decision.” Id. (quoting Boeckel v. Boeckel, 2010 ND
130, ¶ 16, 785 N.W.2d 213).

       The record in this case includes evidence implicating the presence of
domestic violence. The incident in which Royce Carlson shot a gun into the air
during the squabble between Jill Carlson and J.R.C. and the testimony that
Royce Carlson repeatedly used corporal punishment as a form of discipline is
evidence that domestic violence may exist. The use of corporal punishment,
however, does not alone establish evidence of domestic violence, but may be
considered as evidence of domestic violence if excessive or unreasonable, or if
it gives rise to the presumption under factor j. See N.D.C.C. § 12.1-05-05(1);
Lechler v. Lechler, 2010 ND 158, ¶ 19, 786 N.W.2d 733; Dinius v. Dinius, 1997
ND 115, ¶¶ 15-16, 564 N.W.2d 300; see also Simons v. Dep’t of Human Servs.,
2011 ND 190, ¶¶ 11, 18, 803 N.W.2d 587 (stating parent’s use of force as
punishment does not provide the basis for finding a child is an abused child).
Despite the testimony offered at trial, the district court found: “There is no
credible evidence of domestic violence in this matter.” The district court did not
explain why domestic violence was not one of the factors it considered in
deciding primary residential responsibility when there was credible evidence
in the record that domestic violence may exist. See Law, 2014 ND 69, ¶ 17, 844
N.W.2d 885.

      We remand for further findings on whether a presumption of domestic
violence applies. If the presumption does not apply, the district court must
explain why evidence of domestic violence does not change its award of primary
residential responsibility. In light of this opinion, the district court must also
determine on remand whether its findings on factor j affect its findings on the
other best interest factors and its decision awarding Royce Carlson primary
residential responsibility and decisionmaking authority.

     Because we remand for further findings, Jill Carlson’s remaining
arguments are unnecessary to our decision.




                                        4
                                  III

      We remand while retaining jurisdiction under N.D.R.App.P. 35(a)(3)
with instructions that the district court make specific findings.

     Gerald W. VandeWalle
     Daniel J. Crothers
     Lisa Fair McEvers
     Jerod E. Tufte
     Jon J. Jensen, C.J.




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