Mowan v. Berg
2015 ND 95
| N.D. | 2015Background
- Parties are unmarried parents of a child born in 2012; Mowan sought primary residential responsibility in 2013 after Berg relocated to Illinois and Iowa with the child.
- In 2010 both parties faced simple-assault domestic-violence charges; charges against Mowan were dismissed, Berg pled guilty.
- Berg testified to multiple later incidents she characterized as bullying, controlling, and threatening (including episodes involving a gun/knife and threats of self-harm) with the child nearby; medical records referenced multiple incidents and a moderate risk of further maltreatment.
- The district court limited inquiry into the 2010 incident, found the 2010 assault was not proximate or serious enough to be relevant, determined factor (j) (domestic violence) had no bearing, and awarded primary residential responsibility to Mowan.
- The Supreme Court reversed the district court’s findings on factor (j) (domestic violence), affirmed the district court’s finding that factor (b) (ability to provide physical needs) favored Mowan, and remanded for further proceedings and findings regarding domestic violence.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether the district court erred in treating domestic violence evidence as irrelevant under factor (j) | Berg: court failed to make specific findings about incidents and ignored recent, multiple incidents that must be considered | Mowan: no credible evidence rose to statutory level triggering presumption; 2010 incident was remote and misdemeanor-level | Reversed: district court failed to make required findings; remand required to decide whether statutory presumption applies and to consider domestic violence as a best-interest factor |
| Whether the statutory rebuttable presumption under N.D.C.C. §14‑09‑06.2(1)(j) was triggered | Berg: pattern or serious incident proximate to proceeding existed based on testimony and records | Mowan: only an old misdemeanor conviction(s); no serious injury, weapon use, or proximate pattern | Court remanded for determination — district court did not make adequate findings to resolve presumption |
| Whether domestic violence must be considered even if presumption not triggered | Berg: violence still must be a factor and can dominate other factors | Mowan: court applied correct analysis in deeming incident irrelevant | Court reaffirmed that even absent presumption, credible domestic violence must be considered among best-interest factors and can dominate analysis |
| Whether district court ignored uncontested evidence under factor (b) (provision of physical needs) | Berg: court ignored evidence Mowan failed to seek medical care and other care issues | Mowan: his employment, housing, and benefits put him in better position | Affirmed: trial court’s finding that factor (b) favored Mowan was supported and not clearly erroneous |
Key Cases Cited
- McAllister v. McAllister, 779 N.W.2d 652 (N.D. 2010) (standard of review for custody findings)
- Wolt v. Wolt, 778 N.W.2d 786 (N.D. 2010) (appellate deference; custody factfinding)
- Datz v. Dosch, 836 N.W.2d 598 (N.D. 2013) (credible domestic violence ‘‘dominates the hierarchy of factors’’)
- Law v. Whittet, 844 N.W.2d 885 (N.D. 2014) (domestic violence must be considered even if presumption not triggered)
- Gietzen v. Gabel, 718 N.W.2d 552 (N.D. 2006) (need for specific findings when addressing statutory presumption)
- Boeckel v. Boeckel, 785 N.W.2d 213 (N.D. 2010) (findings must allow appellate court to understand basis for decision)
- Wessman v. Wessman, 747 N.W.2d 85 (N.D. 2008) (domestic violence’s weight in best-interest analysis)
- Heck v. Reed, 529 N.W.2d 155 (N.D. 1995) (cannot deny custody solely because abused parent suffers effects of abuse)