Dinius v. Dinius

1997 ND 115, 564 N.W.2d 300, 1997 N.D. LEXIS 105, 1997 WL 290236
CourtNorth Dakota Supreme Court
DecidedJune 3, 1997
DocketCivil 960287
StatusPublished
Cited by28 cases

This text of 1997 ND 115 (Dinius v. Dinius) is published on Counsel Stack Legal Research, covering North Dakota Supreme Court primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Dinius v. Dinius, 1997 ND 115, 564 N.W.2d 300, 1997 N.D. LEXIS 105, 1997 WL 290236 (N.D. 1997).

Opinion

NEUMANN, Justice.

[¶ 1] John Dinius appeals from the district court’s judgment finding him the perpetrator of domestic violence and granting Carmen Oswald, formerly known as Carmen Dinius, custody of their children. We reverse.

[¶ 2] In 1989, John and Carmen Dinius divorced. That same year, John was awarded the custody of their four children. Carmen appealed, and this court upheld the district court’s custody award. Dinius v. Dinius, 448 N.W.2d 210 (N.D.1989).

[¶ 3] Three years after the custody award, the eldest child, Angela, expressed a preference to live with her mother. In 1992, custody of Angela was transferred to Carmen, leaving custody of the three younger boys with John. At that time, a visitation schedule was established and neither party was ordered to pay support.

[¶4] On March 3, 1995, John moved for child support. Carmen countered seeking child support for Angela. On December 28, 1995, the district court issued a second amended divorce judgment, ordering John to pay Carmen $82 monthly child support from March 1995 to February 1996. Thereafter, the court ordered Carmen to pay John $554 monthly child support.

[¶ 5] In May 1996, Carmen moved for custody of the three boys, or alternatively, moved for a specified visitation schedule. In her motion to transfer custody, Carmen alleged John was a perpetrator of domestic violence. The district court found John to be a perpetrator of domestic violence based on two incidents involving Angela which occurred in 1990. The court granted Carmen custody of the two youngest boys, Jordan and Jarett, and allowed Landon, an adult, to live with whomever he chose.

[¶ 6] John appealed the decision and requested this court to stay the transfer pending the appeal. On October 30, 1996, we granted the stay and remanded the case to the district court to determine John’s potential child support obligation.

[¶ 7] On November 22, 1996, the district court issued a third amended divorce judgment specifying John’s child support obligation. John appealed and asked the court to stay the judgment and order Carmen to pay child support pending the appeal, as outlined in the second amended divorce judgment. On December 18,1996, we stayed the judgment, and ordered that Carmen pay child support. John appeals.

[¶8] John argues the district court erred by determining he was the perpetrator of domestic violence. John argues he did not commit domestic violence, but rather was *302 disciplining Angela as permitted under N.D.C.C. § 12.1-05-05(1).

[¶ 9] In its order granting Carmen custody, the district court found John committed two acts of domestic violence against Angela in 1990. One incident involved John hitting Angela in the face in a dispute over washing dishes. Another incident involved pulling Angela from a car by grabbing her by the arm and hair. In its findings, the district court stated:

“Angela Dinius testified that John hit her ‘on the face’ on one occasion in 1990. John allegedly became angry with her because she was doing the dishes too slowly. Angela testified that on another occasion in December of 1990, John pulled her out of a car by grabbing her by the arm and by her hair. Angela testified that as a result of the latter incident, T had marks on my arm. And I had some bruises on my head.’
¾: ⅜ ⅜ ⅜; ⅜ ⅜:
The Court finds that John did commit two acts of domestic violence against Angela Dinius. From this the Court concludes there exists a material change in circumstances.”

[¶ 10] The district court invoked the presumption against custody and ordered a change of custody to Carmen. In reaching its decision, the district court did not determine whether John’s acts constituted reasonable disciplinary measures.

[¶ 11] In the original placement of a child following a divorce, the district court need only determine the best interests and welfare of the child. Gould v. Miller, 488 N.W.2d 42, 43 (N.D.1992). To modify an original custodial placement, the district court must apply a two-step analysis. Van Dyke v. Van Dyke, 538 N.W.2d 197, 201 (N.D.1995). First, the court must determine whether there has been a significant change in circumstances since the original custody placement. Klose v. Klose, 524 N.W.2d 94, 95 (N.D.1994). Secondly, if a significant change of circumstances exists, the court must determine whether that change compels a change of custody in the child’s best interests. Barstad v. Barstad, 499 N.W.2d 584, 587 (N.D.1993).

[¶ 12] A district court’s decision to modify custody is a finding of fact subject to the clearly erroneous standard of review. Blotske v. Leidholm, 487 N.W.2d 607, 609-10 (N.D.1992); Rule 52(a), N.D.R.Civ.P. A finding of fact is clearly erroneous “if it is induced by an erroneous view of the law, if there is no evidence to support it, or if, although there is some evidence to support it, on the entire evidence, we are left with a definite and firm conviction that a mistake has been made.” McDonough v. Murphy, 539 N.W.2d 313, 316 (N.D.1995).

[¶ 13] Under N.D.C.C. § 14-09-06.2(l)(j), there is a rebuttable presumption that a parent who has perpetrated domestic violence may not be awarded custody of the children:

“If the court finds credible evidence that domestic violence has occurred, this evidence creates a rebuttable presumption that a parent who has perpetrated domestic violence may not be awarded sole or joint custody of a child.”

[¶ 14] The statute adopts by reference the definition of domestic violence in N.D.C.C. § 14-07.1-01(2):

“ ‘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.”

[¶ 15] However, N.D.C.C. § 14-07.1-01(2) is not the only statute discussing the use of force in a household. In circumstances concerning force used on children, N.D.C.C. § 12.1-05-05(1) is also relevant. Under N.D.C.C. § 12.1-05-05(1) the legislature grants parents the right to use reasonable force to discipline their children. Section 12.1-05-05(1), N.D.C.C., states:

“[Parents] may use reasonable force upon the minor for the purpose of safeguarding or promoting his welfare, including prevention and punishment of his misconduct, and the maintenance of proper discipline.... The force used must not create a substan *303 tial risk of death, serious bodily injury, disfigurement, or gross degradation.”

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Bluebook (online)
1997 ND 115, 564 N.W.2d 300, 1997 N.D. LEXIS 105, 1997 WL 290236, Counsel Stack Legal Research, https://law.counselstack.com/opinion/dinius-v-dinius-nd-1997.