Lead Opinion
Kevin Bruner appeals from a district court order denying his request for reconsideration of a custody decision and his request for a stay of the decision. The district court changed custody of Bruner’s son Dillon Bruner from Bruner to Dillon’s mother Michelle Hager in an amended judgment on remand. We affirm.
The facts underlying this appeal are reported in Bruner v. Hager,
In October 1994, the trial court placed custody of Dillon with Bruner. Hager appealed. We reversed the trial court’s decree and remanded “for more specific findings on domestic violence and for a redetermination of custody.” Bruner,
Before the entry of the court’s memorandum opinion and accompanying judgment on remand, Bruner sought a hearing on the merits to consider whether Hager was a fit parent. The court did not grant the hearing, and entered judgment granting custody to Hager. Bruner submitted a request for reconsideration, motion to take testimony, and request for stay order. In his request, Bruner specified that he wished to “put on additional testimony regarding the psychological effect this transfer will have on Dillon and [Bruner].” Bruner later submitted an amended motion requesting that the court appoint a guardian ad litem, order psychological examinations, order a home study, and permit Bruner to update his testimony on his and Dillon’s “medical and factual situation.” The court denied Bruner’s requests.
Bruner’s sole claim on appeal is that the trial court erred when it refused to allow him to present evidence on matters involving Dillon’s best interests on remand, in particular evidence to rebut the statutory presumption against awarding custody to a perpetrator of domestic violence.
This court has long held that there is only a single issue to be determined by the trial court in making an original custody award: the child’s best interests. See Heinen v. Heinen,
Under the law as amended, if a 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.” N.D.C.C. § 14-09-06.2(l)(j). “To rebut the presumption, the violent parent must prove by clear and convincing evidence that other circumstances require that the child be placed with the violent parent rather than the non-violent parent.” Owan v. Owan,
Bruner’s custody hearing took place August 31, 1994. The rules of the game, as established in 1993 by the legislature through its amendment of section 14-09-06.2(l)(j), were, therefore, in place at the time of the hearing. The problem, as we indicated in our decision in Bruner,
In its memorandum opinion, the trial court admitted it did not properly apply the domestic violence presumption in making its initial custody decision. In reconsidering the evidence of domestic violence in its findings of facts, the court found:
“6. The parties’ relationship was rocky. There were at least four instances of Kevin’s violent behavior toward Michelle, which behavior constituted ‘domestic violence’ within the meaning of Section 14-09-06.2 of the North Dakota Century Code.
7. Kevin Bruner did not prove by clear and convincing evidence that Dillon’s best interests require his participation as a custodial parent.”2
Trial courts have broad discretion on evidentiary matters. Wetch v. Wetch,
When the trial court denied Bruner’s request to introduce more evidence on remand, it wrote it was “satisfied that its duty was to re-evaluate the testimony of the trial in light of the Supreme Court’s order.” Bruner challenges this conclusion. He claims the court did not adequately address the psychological effects of a custody change on the parents and Dillon at trial. He also points out the time lapse between the August 1994 hearing and the trial court’s October 1995 custody redetermination, and insists factual changes took place in the lives of the parties during that period that demand consideration by the court.
Bruner supported his motions to submit additional evidence with affidavits. In the affidavits, he alleged that Dillon was experiencing crying outbreaks and emotional upset because he wanted to remain with Bruner. He alleged that Dillon’s stepfather spanked Dillon frequently. He alleged that Hager was experiencing fainting due to bulimia. He also informed the court that he had married a woman with a seven-year-old daughter and that his new wife could care for Dillon during non-school hours.
Our examination of the trial transcript, however, shows that few of the issues raised in Bruner’s post-remand affidavits were new issues. At trial, Bruner introduced evidence that Dillon suffered emotional upset whenever separated from him, and evidence that Hager and her new husband were harsh disciplinarians. Furthermore, Hager’s bulimia and her other possible emotional and psychological problems were dealt with at length at trial. A significant quantity of psychological evidence was introduced at trial, including testimony from a clinical psychologist who performed psychological evaluations of Bruner and Dillon, testimony from a social worker who counseled Hager, and testimony from a psychiatric social worker who gave Dillon therapy. Bruner and Hager also testified about their own psychological and emotional states.
The only new information Bruner produced in his affidavits was information about his family status. The trial transcript, however, shows that Bruner introduced considerable evidence about the stability of his home and the advantages Dillon could obtain if left in Bruner’s custody. Indeed, the trial court’s findings supporting its prior grant of custody to Bruner indicate that the court considered Bruner’s home environment a favorable one for Dillon. Considering the evidence already on record, the new evidence Bruner sought to submit about the good home he could provide Dillon would have been merely cumulative.
Abuse of discretion by a trial court is never assumed; it must be affirmatively established. Klitzke v. Klitzke,
We affirm.
Notes
. In making this claim, both in his brief and at oral argument, Bruner criticized the statutory
. There is evidence in the record suggesting that Hager also committed acts of domestic violence during her relationship with Bruner, but the trial court did not make any specific findings as to the extent of domestic violence she committed. Under section 14-09-06.2(l)(j), N.D.C.C., the trial court is required to "consider evidence of domestic violence” and "cite specific findings of fact.” Bruner, however, did not appeal from the trial court's findings. He appealed from the trial court's order denying his request for reconsideration, motion to take testimony, and request for stay order. Bruner’s motion was akin to a motion for a new trial, and when we review post-judgment motions, " 'the party making such a motion is limited on appeal to a review of the grounds presented to the trial court.’" Steckler v. Steckler,
Dissenting Opinion
dissenting.
For the reasons set out in my opinion concurring in the result in Bruner v. Hager,