Dickson v. Dickson
2018 ND 130
| N.D. | 2018Background
- Jennifer and Brent Dickson divorced in Aug. 2016; the divorce judgment provided for equal (stipulated) residential responsibility for their two children.
- In Oct. 2016 Brent allegedly threatened suicide with a gun, sent suicide-related texts and a photo with a rifle, and officers transported him for psychiatric evaluation; a domestic violence protection order was later entered against Brent.
- In Feb. 2017 Jennifer moved (within two years of the judgment) to modify residential responsibility to name her primary custodian, alleging danger to the children’s physical/emotional health.
- At the June 2017 evidentiary hearing the district judge stated a prior domestic violence finding existed and noted the statutory rebuttable presumption applied; the parties proceeded on that assumption.
- The district court denied Jennifer’s request in July 2017 without making specific findings on the best-interest factors or on whether the stricter two-year modification standard was met; Jennifer appealed.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether the statutory rebuttable presumption against awarding custody to a parent who perpetrated domestic violence applies | Jennifer: the presumption applies because of the prior protection order and the October incident | Brent: prior protection order need not bind custody proceeding; court should consider evidence afresh | Court: district court misapplied law by treating prior protection-order finding as automatically binding; on remand court must decide whether presumption applies and, if so, whether it was rebutted |
| Whether the district court made adequate findings of fact on best-interest factors when denying modification | Jennifer: court failed to make specific findings required by N.D.R.Civ.P. 52 and N.D.C.C. § 14-09-06.2, including domestic violence analysis | Brent: (implicit) existing joint schedule remains and no modification warranted; prior record suffices | Court: findings were inadequate; remand required for specific, detailed findings on all applicable best-interest factors and the two-year modification standard |
| Whether the two-year stricter modification standard (environment endangering child) was properly applied | Jennifer: because motion was within two years, court must find modification necessary to serve best interests and that the child’s environment may endanger their health or development | Brent: (implicit) Jennifer did not satisfy the heightened statutory burden | Held: court failed to address the two-year standard; on remand must determine whether modification is necessary and whether current environment may endanger the children |
| Whether the prior protection-order finding is issue-preclusive in the custody modification proceeding | Jennifer: prior finding supports applying presumption | Brent: prior finding is relevant but not dispositive | Held: issue preclusion does not control because statute allows the custody court to consider but not be bound by prior protection-order findings; court must reexamine domestic-violence elements under custody statute |
Key Cases Cited
- Thompson v. Thompson, 905 N.W.2d 772 (2018) (standard of review for custody and findings of fact)
- Hageman v. Hageman, 827 N.W.2d 23 (2013) (stipulated residential responsibility requires court-made custody determination on modification)
- Laib v. Laib, 751 N.W.2d 228 (2008) (heightened two-year modification standard and need for sufficient findings)
- Ternes v. Ternes, 555 N.W.2d 355 (1996) (domestic violence predominates best-interest analysis when credible evidence exists)