                   Filed 2/12/20 by Clerk of Supreme Court

                    IN THE SUPREME COURT
                    STATE OF NORTH DAKOTA

                               2020 ND 40

Kyle Vetter,                                            Plaintiff and Appellant
     v.
Michelle Vetter,                                       Defendant and Appellee
   and
State of North Dakota,                         Statutory Real Party in Interest



                               No. 20190151

Appeal from the District Court of Burleigh County, South Central Judicial
District, the Honorable James S. Hill, Judge.

AFFIRMED.

Opinion of the Court by VandeWalle, Justice.

Todd D. Kranda and Alex Kelsch, Mandan, ND, for plaintiff and appellant;
submitted on brief.

Irvin B. Nodland, Bismarck, ND, for defendant and appellee; submitted on
brief.
                               Vetter v. Vetter
                                No. 20190151

VandeWalle, Justice.

[¶1] Kyle Vetter appealed from a district court judgment awarding primary
residential responsibility of the parties’ minor daughter, B.L.V., to Michelle
Vetter and dividing the parties’ assets and debts. We affirm.

                                        I

[¶2] Kyle Vetter and Michelle Vetter began dating in 1990 when they were
both in high school. After graduating high school, Kyle Vetter and Michelle
Vetter moved to several locations around the United States for various job
opportunities. The parties were married and settled in Bismarck in 1998. In
2009, B.L.V. was born.

[¶3] In 2016, Michelle Vetter commenced a divorce action against Kyle
Vetter. The parties stipulated to dismiss that action. In 2017, Kyle Vetter
commenced the current divorce action. Shortly thereafter, Michelle Vetter was
charged with child abuse. In August, 2018, a jury found Michelle Vetter guilty
of child abuse. This Court affirmed Michelle Vetter’s conviction. State v. Vetter,
2019 ND 262, 934 N.W.2d 543.

[¶4] After Kyle Vetter filed for divorce, the district court appointed a
parenting investigator. The parenting investigator completed her report in
October 2018. In her report, the parenting investigator made a number of
specific recommendations, which were, in part, relied on by the district court
in making its custody determination.

[¶5] In March 2019, a two day divorce trial was held. At trial, the parenting
investigator testified to the findings and recommendations in her report.
Additionally, both Kyle Vetter and Michelle Vetter testified on the incident
that led to Michelle Vetter’s child abuse conviction. Michelle Vetter did not
testify during her criminal trial, and she offered a much different account on
the incident than what was offered by Kyle Vetter.



                                        1
[¶6] In April 2019, the district court issued a memorandum decision, findings
of fact and conclusions of law, and ordered judgment. The court awarded
primary residential responsibility of B.L.V. to Michelle Vetter. Regarding the
parties’ assets and debts, the court found the parties’ marriage was a long term
marriage and awarded Michelle Vetter 38.3% of the marital estate and Kyle
Vetter 61.7% of the marital estate. And to prevent a substantial disparity in
the division of assets, the court required Kyle Vetter make an equalization
payment to Michelle Vetter in the amount of $135,294.57.

                                        II

[¶7] On appeal, Kyle Vetter argues the district court erred in awarding
primary residential responsibility to Michelle Vetter because its findings on
factors c, d, and e under N.D.C.C. § 14-09-06.2(1) were clearly erroneous and
because the court’s findings on factor j should have been afforded greater
weight.

[¶8] “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).

                                        A

[¶9] Kyle Vetter contends the district court’s findings on factor c are clearly
erroneous because its findings are “based on a backward looking view.” Best-
interest factor c considers “[t]he child’s developmental needs and the ability of


                                        2
each parent to meet those needs, both in the present and in the future.”
N.D.C.C. § 14-09-06.2(1)(c). We have previously held district courts may give
weight to a parent’s role as primary caretaker in making custody decisions. See
Heinle v. Heinle, 2010 ND 5, ¶ 11, 777 N.W.2d 590. The district court found
Michelle Vetter was the primary caretaker of B.L.V. leading up to the divorce
because of Kyle Vetter’s work schedule. The district court, relying on the
parenting investigator’s report, also found B.L.V. is learning to develop
relationships and cooperate with adults and is establishing foundations for
academic and athletic skills. The parenting investigator stated children
B.L.V.’s age identify and model the activities of the parent who is the same sex
as the child. Therefore, the court found Michelle Vetter could better meet
B.L.V.’s developmental needs. Because Michelle Vetter was the primary
caretaker of B.L.V. leading up to the divorce and could better meet B.L.V.’s
developmental needs, the district court found factor c favored Michelle Vetter.
The court’s finding is supported by the record and the evidence presented at
trial. The district court’s findings on factor c are not clearly erroneous.

                                       B

[¶10] 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


                                       3
      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).

[¶11] “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). “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.” Id. (quoting Law v.
Whittet, 2014 ND 69, ¶ 17, 844 N.W.2d 885).

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

                                        4
[¶13] After hearing the testimony of both parties at trial, the district court
found the testimony painted a more complete picture of the incident that led
to Michelle Vetter’s conviction for child abuse. Based on the parties’ testimony,
the district court found Michelle Vetter’s child abuse conviction was not
sufficient evidence to trigger the rebuttable presumption of domestic violence
under N.D.C.C. § 14-09-06.2(1)(j). The court reasoned that a presumption of
domestic violence arises under § 14-09-06.2(1)(j) when a perpetrator inflicts
“serious bodily injury,” yet Michelle Vetter could be charged and convicted of
child abuse without inflicting “serious bodily injury.” The court explained,
therefore, the alleged conduct that led to the conviction did not “meet the strict
definition of ‘domestic violence’” under § 14-09-06.2(1)(j). Although the child
abuse conviction satisfies the definition of “domestic violence” under § 14-09-
06.2(1)(j) because that definition requires only “bodily injury,” the district court
was correct insofar as it found that such a conviction does not necessarily
satisfy the threshold to trigger the presumption, which requires credible
evidence of “serious bodily injury.” Moreover, the court explicitly stated the
conviction was not irrelevant and found factor j favored Kyle Vetter.

[¶14] Aside from the incident leading to Michelle Vetter’s conviction, the court
received testimony relating to other incidents of alleged domestic violence. The
testimony received by the court was conflicting and imprecise. The court found
the testimony on the other alleged incidents of domestic violence was not
credible evidence that there existed a pattern of domestic violence within a
reasonable time proximate to the proceeding.

[¶15] The district court considered the incident that led to Michelle Vetter’s
conviction and the other alleged incidents of domestic violence. The court
ultimately found factor j favored Kyle Vetter. The court weighed factor j and
the evidence of domestic violence and determined, based on the evidence as a
whole, it was in B.L.V.’s best interests for Michelle Vetter to receive primary
residential responsibility. After a review of the entire record, we cannot
conclude the district court’s findings were induced by an erroneous view of the
law or were unsupported by the evidence in the record, and we are not left with
a definite and firm conviction a mistake has been made. The district court’s



                                         5
findings on factor j are not clearly erroneous and were afforded appropriate
weight and consideration.

                                        C

[¶16] Kyle Vetter’s remaining arguments on factors d and e are little more
than asking this Court to reweigh the evidence. The district court made
multiple findings of fact in accordance with the law and supported by the
record. And after reviewing the entire record, we are not left with a definite
and firm conviction a mistake has been made. The district court’s findings are
not clearly erroneous, and the court did not err in awarding Michelle Vetter
primary residential responsibility of B.L.V.

                                       III

[¶17] Kyle Vetter argues the district court erred by ordering he make an
equalization payment to Michelle Vetter, and thereby inequitably divided the
parties’ assets and debts. This Court will not reverse the district court’s
decision related to property distribution unless the findings are clearly
erroneous. Berg v. Berg, 2018 ND 79, ¶ 6, 908 N.W.2d 705.

[¶18] Section 14-05-24(1), N.D.C.C., requires the district court make an
equitable division of the parties’ marital estate. Swanson v. Swanson, 2019 ND
25, ¶ 6, 921 N.W.2d 666 (citing Rebel v. Rebel, 2016 ND 144, ¶ 7, 882 N.W.2d
256). All assets, whether separately obtained or inherited property, are to be
considered part of the marital estate. Bladow v. Bladow, 2003 ND 123, ¶ 6, 665
N.W.2d 724. After all assets and debts have been included, the district court is
to apply the Ruff–Fischer guidelines and make an equitable division of the
marital estate. Neidviecky v. Neidviecky, 2003 ND 29, ¶ 10, 657 N.W.2d 255.
“A property distribution need not be equal to be equitable, but the district court
must explain any ‘substantial disparity’ in its distribution.” Swanson, at ¶ 9
(citing Berg, 2018 ND 79, ¶ 7, 908 N.W.2d 705).

[¶19] There is no set formula or method for dividing a marital estate, but the
trial court must equitably divide the property based upon the particular
circumstances of each case. Swanson, 2019 ND 25, ¶ 9, 921 N.W.2d 666;


                                        6
Horner v. Horner, 2004 ND 165, ¶ 12, 686 N.W.2d 131. An equal division of
marital property is a logical starting point in a long-term marriage. Linrud v.
Linrud, 1998 ND 55, ¶ 7, 574 N.W.2d 875; see Swanson, at ¶ 9. While we have
said a court may unequally divide property in a short-term marriage and
award the parties what each brought into the marriage, Horner, at ¶
12, marriages of longer durations generally support an equal distribution of
property. Lizakowski v. Lizakowski, 2017 ND 91, ¶ 12, 893 N.W.2d 508 (citing
Kosobud v. Kosobud, 2012 ND 122, ¶ 6, 817 N.W.2d 384). However, duration
of a marriage is only one factor of the Ruff–Fischer guidelines and is only one
factor to be considered in a distribution of marital property. Lill v. Lill, 520
N.W.2d 855, 857 (N.D. 1994).

[¶20] At the time of trial, the parties had been married approximately twenty
years and had been together approximately twenty-eight years. The district
court found this was a long-term marriage. The court’s finding was not clearly
erroneous. See Ulsaker v. White, 2006 ND 133, ¶ 14, 717 N.W.2d 567 (affirming
finding that sixteen-year marriage was a long-term marriage). Additionally,
the court found neither party brought any property into the marriage. The
court awarded Michelle Vetter 38.3% of the marital estate and Kyle Vetter
61.7% of the marital estate. To prevent a substantial disparity in the division
of assets, the court required Kyle Vetter make an equalization payment to
Michelle Vetter in the amount of $135,294.57. Given this was a long-term
marriage in which neither party brought any property into the marital estate,
the equalization payment ordered by the district court was not inequitable.
Moreover, Kyle Vetter himself testified at trial that he was “okay” with an
equalization payment. The district court’s division of the parties’ assets and
debts was not clearly erroneous.

                                      IV

[¶21] The district court judgment is affirmed.

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

                                       7
