945 N.W.2d 331
N.D.2020Background
- Alicia and Timothy Wisnewski married in 1997 and have three minor children; they separated after a December 28, 2017 incident of domestic violence.
- Timothy pled guilty to felony C aggravated assault (domestic violence) and interfering with an emergency call; a permanent domestic violence protection order was entered.
- Trial on divorce and related issues was held April 4–5, 2019; the district court found domestic violence occurred but concluded the statutory presumption was rebutted.
- The district court awarded Timothy unsupervised parenting time and joint decisionmaking responsibility, ordered child support and spousal support to Timothy, declined to award Alicia attorney’s fees, and allocated certain debts (including attorney and clinician fees) to Alicia.
- Alicia appealed, arguing the domestic-violence findings were insufficient, the presumption was not rebutted, joint decisionmaking was improper, property/debt allocation and child-support calculations were erroneous, and attorney’s fees should have been awarded.
Issues
| Issue | Plaintiff's Argument (Alicia) | Defendant's Argument (Timothy) | Held |
|---|---|---|---|
| Whether district court made sufficient findings that domestic violence occurred and whether the statutory presumption was triggered | District court’s findings were insufficient and ignored evidence favoring Alicia | Court relied on Timothy’s criminal conviction and evidence presented | Affirmed that domestic violence occurred and the statutory presumption was triggered (finding not clearly erroneous) |
| Whether the domestic-violence presumption was rebutted so Timothy could have unsupervised parenting time | Presumption was not rebutted; evidence did not show clear and convincing proof unsupervised time was safe | Timothy showed cessation of substance use and completion of substance-abuse outpatient program, passage of time, and love for children | Reversed: court clearly erred in finding the presumption rebutted; remanded to establish supervised parenting time (or otherwise address supervised plan) |
| Whether joint decisionmaking responsibility was appropriate given domestic violence | Joint decisionmaking is improper without specific findings and forces contact despite protection order | Court found parents would jointly make major decisions and had agreed to do so | Reversed and remanded: district court failed to make required written findings considering domestic violence and best interests; must reconsider and explain allocation to protect children and Alicia |
| Whether spousal support award to Timothy was erroneous | Alicia: Timothy did not show need and Alicia lacked ability to pay | Timothy showed low earnings, part-time work history, difficulty finding work due to felony, Alicia had higher and increasing income and income-producing property | Affirmed: district court’s spousal support award supported by record and Ruff-Fischer consideration |
| Whether child support computation and retroactive support were proper | Alicia: child support calculation used incorrect income period and should include support back to separation | Timothy: court used recent years’ income average; no interim request was made for retroactive support | Reversed and remanded: court erred by using three-year average without findings (five-year rule for self-employed); remand to detail net income calculation, underemployment analysis, and address past-due support from separation period |
| Whether attorney and clinician fees (and certain debts) should have been allocated to Timothy or awarded to Alicia under N.D.C.C. § 14-09-29(4) | Fees and debts stemming from domestic violence should be charged to Timothy and attorney’s fees awarded (statute requires fees be paid by perpetrator unless undue hardship) | Timothy argued statute not absolute and district court declined to award fees | Reversed and remanded: court misallocated debts to Alicia and abused discretion by not addressing statutory presumption for fees; must allocate debts to Timothy or explain undue hardship and either award fees or make findings |
Key Cases Cited
- O'Hara v. Schneider, 897 N.W.2d 326 (discusses standard of review and domestic-violence considerations in parenting-time determinations)
- Heck v. Reed, 529 N.W.2d 155 (explains presumption arises when violence is directed at any household member, not just children)
- Zuger v. Zuger, 563 N.W.2d 804 (lack of direct violence toward children does not rebut statutory presumption)
- Engh v. Jensen, 547 N.W.2d 922 (same principle regarding impact of domestic violence on children)
- Bruner v. Hager, 534 N.W.2d 825 (same)
- Krank v. Krank, 541 N.W.2d 714 (passage of time alone does not rebut the domestic-violence presumption)
- Raap v. Lenton, 885 N.W.2d 777 (requirements for averaging self-employment income for child support)
- Spilovoy v. Spilovoy, 488 N.W.2d 873 (court must state net income and how it was determined per guidelines)
- Thompson v. Thompson, 905 N.W.2d 772 (Ruff–Fischer factors for spousal support)
- Datz v. Dosch, 846 N.W.2d 724 (standard for abuse of discretion in awarding attorney’s fees)