FILED
IN THE OFFICE OF THE
CLERK OF SUPREME COURT
OCTOBER 4, 2022
STATE OF NORTH DAKOTA
IN THE SUPREME COURT
STATE OF NORTH DAKOTA
2022 ND 178
Lee P. Queen, Plaintiff and Appellant
v.
Kimber L. Martel, Defendant and Appellee
and
State of North Dakota, Statutory Real Party in Interest and Appellee
No. 20220121
Appeal from the District Court of Morton County, South Central Judicial
District, the Honorable Cynthia Feland, Judge.
REMANDED WITH INSTRUCTIONS.
Opinion of the Court by Tufte, Justice.
Elise A. Fischer (argued) and Theresa L. Kellington (on brief), Bismarck, N.D.,
for plaintiff and appellant.
Alex S. Kelsch, Mandan, N.D., for defendant and appellee.
Sheila K. Keller, Bismarck, N.D., for statutory real party in interest and
appellee.
Queen v. Martel
No. 20220121
Tufte, Justice.
[¶1] Lee Queen appeals from a judgment awarding him and Kimber Martel
equal residential responsibility of their minor child and ordering child support.
Queen argues he should have been awarded primary residential responsibility
and the district court erred in calculating his child support obligation. We
conclude the district court failed to make sufficient findings of fact under best
interests factor (j). We retain jurisdiction under N.D.R.App.P. 35(a)(3)(B) and
remand for further proceedings consistent with this opinion.
I
[¶2] The parties were never married. They have one minor child together,
H.L.Q., born in 2018. After a trial, the district court awarded equal residential
responsibility of the child and ordered child support obligations for both
parties, which, after offsetting the obligations, results in Queen paying $531
per month.
II
[¶3] Queen argues that the district court erred in awarding equal residential
responsibility of their minor child and that he should have been awarded
primary residential responsibility. “A district court’s decision on residential
responsibility is a finding of fact subject to the clearly erroneous standard of
review.” Cty. of Sargent v. Faber, 2022 ND 155, ¶ 6,
978 N.W.2d 652. 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, after reviewing the entire record, we are left with a
definite and firm conviction a mistake has been made.
Id.
[¶4] In determining residential responsibility, the district court made
findings of fact on the best interests factors under N.D.C.C. § 14-09-06.2(1).
The court found factors (e) and (h) slightly favored Martel and the remaining
factors either favored neither party or were inapplicable. Queen argues the
court erred in analyzing all factors, except factors (c) and (i).
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[¶5] Factor (j) concerns evidence of domestic violence and provides:
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 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.
N.D.C.C. § 14-09-06.2(1)(j).
[¶6] The district court found both parties had perpetrated domestic violence:
In 2020, Martel went to Queen’s residence when she was
intoxicated and struck Queen during the altercation resulting in
her conviction for Domestic Violence. Martel received a Deferred
Imposition of Sentence and was required to obtain a chemical
dependency evaluation which indicated no treatment was
required. H.L.Q. was not present during the incident.
2
In March of 2018, not long after H.L.Q.’s birth, the parties
were involved in a verbal argument which turned physical and led
to the issuance of a Domestic Violence Protection Order prohibiting
Queen from having contact with Martel and prohibiting Queen’s
consumption of alcohol during parenting time with H.L.Q. During
the physical altercation, Queen was found to have choked Martel,
struck her head on the floor several times causing loss of
consciousness, a sprained wrist and multiple bruises on her body.
Medical records from Martel’s visit to the emergency room
following the incident reflect that Martel sustained a contusion of
the scalp; concussion with loss of consciousness; contusion on her
back, neck and face; and a bruised and sprained wrist. H.L.Q. was
at home at the time of the incident.
(Citations omitted.)
[¶7] Because the district court found domestic violence had occurred,
including at least one incident resulting in what appears to have been serious
bodily injury, the court was required to determine whether there is a rebuttable
presumption that a parent who has perpetrated domestic violence may not be
awarded residential responsibility for the child. If a presumption exists, the
court must then determine whether the presumption has been overcome by
clear and convincing evidence that the best interests of the child require that
parent have residential responsibility, citing 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 person, providing priority to the
child’s nearest suitable adult relative. However, the fact that the abused parent
suffers from the effects of the abuse may not be grounds for denying that parent
residential responsibility. Because the court did not undertake this analysis or
make findings of fact on whether the rebuttable presumption is triggered
against either party and, if so, rebutted, we remand to the district court to
make these findings and, if necessary, reassess its award of residential
responsibility.
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III
[¶8] We conclude the district court did not make sufficient findings of fact
under N.D.C.C. § 14-09-06.2(1)(j) to permit appellate review. We retain
jurisdiction under N.D.R.App.P. 35(a)(3)(B) and remand to the district court
with instructions that within thirty days from the filing of this opinion, the
court make specific findings of fact on whether the domestic violence rebuttable
presumption is triggered against either party and, if so, whether the
presumption, in either or both cases, is rebutted. Depending upon its findings,
the court may or must reassess its award of residential responsibility.
[¶9] Jon J. Jensen, C.J.
Gerald W. VandeWalle
Lisa Fair McEvers
Jerod E. Tufte
Bruce B. Haskell, S.J.
[¶10] The Honorable Bruce B. Haskell, Surrogate Judge, sitting in place of
Crothers, J., disqualified.
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