Ryan v. Flemming

RYAN, Robert Ewald Plaintiff Appellee, FLEMMING,

Elizabeth EW Defendant Appellant.

Civ. No. 940274.

Supreme Court of North Dakota.

June together again when family came soon to Grand

Elizabeth and Jesse returned 1991, too, there but later Forks to five apartment. separate to a Elizabeth moved years, Robert Jr. often For the next two the homes of went back and forth between primarily lived with Robert. parents, but his 1993, again moved Elizabeth In late October Jesse, taking with Robert Jr. to Minot with Robert sued against Robert’s wishes. her boy, custody of the and ob- Elizabeth for custody temporary pending trial. tained his custody sought of Robert Jr. Elizabeth too 1994, morning of trial in Jesse was On the judge’s briefly in the chambers interviewed present. Pres- or Elizabeth without Robert attorney parent, for each ent trial, judge. At reporter, court and the testified, and each and Elizabeth both Robert by breaking pot- a Robert described ripping a off the plant once and ted wall another time. Seaworth, Forks, Howe and Grand custody joint legal court decreed argued by Mary E. The trial appellee; plaintiff Jr., placed primary of Robert Seaworth. Robert, visitation custody with and scheduled Minot, Slorby (argued), for defen- Tom P. pay was ordered to $187 with who appellant. dant appeals. monthly support. Elizabeth erro- argues that the trial court Elizabeth MESCHKE, Justice. custody Jr. neously placed primary of Robert Flemming appealed a decree Elizabeth argues that particular, In she with Robert. son, custody of her primary physical placing under putting in not the court erred father, Jr., Ryan. with his Robert Robert interview, excluding oath for the chambers private judicial effect of a consider the We interview, misapplying and in from that her without adminis- of a child witness interview placing presumption against oath, prop- of violence to tering an the effect responds that the parent. a Robert violent custody by against a erty presumption reasonably found insufficient violence the evidence parent, and whether violent against his cus- for a Robert custody of a primary supported fitness, correctly Robert placed todial boy father. affirm. five-year-old with his We primary custody with Robert as the Jr.’s relationship agree with Robert. began a Robert and Elizabeth caretaker. We son, 1987, Their Rob- but never married. court’s 18, reverse a trial Jr., will not April 1989. At the was born on ert fact, unless it son, a placement, six-year-old time Elizabeth had Reed, 529 Heck v. solely Robert Jr. lived from before. 155, finding “A August when N.W.2d until Elizabeth and Jesse by an if it is induced clearly erroneous together fact is moved Robert and Elizabeth law, if no evidence view of the erroneous Forks. June Grand court, it, reviewing if support boys, exists to where to Minot with her moved evidence, with a definite Then, is left took on the entire August Robert until lived has been that a mistake and firm conviction Forks to live with back to Grand Robert Jr. Id. made.” him. ability questions truthfully to answer never contested. challenges use of evidence from Jesse’s chambers interview because And Jesse’s answers were not the trial Court did not administer an oath “[t]he family evidence about relations. After that Jesse, any any to nor at other time make interview, complete brief there was a trial. if effort to ascertain Jesse knew the differ decision, In explained its how truth and a ence between the he or otherwise Jesse’s statements fit with the rest of the attempt impress upon impor to Jesse the testimony: telling tance of the truth.” The rules impression was the distinct [I]t of the expect every that witness be re stating Court that Jesse was the same quired “by testify oath or affirmation” to concerns that his mother felt. Jesse com- truthfully: plained many toys that Robert had testifying, every Before witness must be anything that Robert can do he wants at required to declare that the witness will complained his father’s home. Jesse about testify truthfully, by oath or affirmation unwillingness pick up [Robertas to him in a form calculated to awak- administered Moreover, day-care. from school or impress en the witness’ conscience and thought hunting guns “stupid”. duty witness’ mind with the to do so. (Robert) Jesse stated that: “He would tell NDREv 603. While this rule was not literal- you stay that he wants to with his dad.” followed,

ly persuaded degree we are not compels of omission for a child a new trial or

a different result. appar- [T]he Court is concerned about the ent bitterness that feels [Elizabeth] toward began The trial court his brief “talk with” has, This [Robert]. bitterness as noted Jesse, ten, age emphasis: just “I some above, spilled over into her conversations questions you, have a few you who reiterated his mother’s like, you can tell me as much as and I during concerns to the Court the in-cham- appreciate important.” it lot because it’s bers interview. Jesse was thus instructed his answers would important, though be even he was not asked complete analysis used a of the promise to make a solemn to tell the truth. placement. evidence for the custodial Jesse’s was for the trial court to argues the trial court erred Hanson, weigh. 474, See State v. 149 Wis.2d excluding her from Jesse’s interview. We (1989) (“a child of ten- disagree. years der who is a witness need not be discussed, deciding, poten- without formally requirement” ‘sworn’to fulfill the problems go judicial tial private that with a affirmation). Wigmore’s oath or re- custody interview of a child in a case in explains, nowned work Wigmore, at 6 Evi- Muraskin, Muraskin v. (Chadbourn dence 1827 at 413-14 rev. (N.D.1983): n. 2 1976): purpose “The true of the oath is not any witness, to competent exclude right but mere- While the to confrontation of wit- ly to add a stimulus to truthfulness right wherever nesses is not a constitutional in civil such cases, a stimulus is feasible.” cases as it is in proce- criminal significant pro- dure used here raises due needed, If more stimulus was counsel for questions. party any cess procedure to interview, present Elizabeth was at the was is entitled to know what evidence is used question Jesse, able to and did not ask for upon or right generally relied and has a to procedure. different See Larsen v. present rebutting evidence or to cross-ex- State, (failure (Wyo.1984) 686 P.2d 583 to right by amine unless such is waived five-year-old testifying swear before was not parties expressly by implication. either or error). plain generally “It is held that the require failure to an oath or affirmation be- subjects The Muraskin children were the testifying fore by objection must be custody dispute, raised or the record of their inter- it is considered waived.” Id. at 587. Jesse’s view fulfill was sealed to the trial court’s children, awarding granting rights confidentiality to the In assurance visitation, objected proce- shall consider evidence the father to the secret contrast, violence. finds subject of domestic If the court of this dure. younger evidence that domestic violence dispute was not Jesse but was his credible occurred, half-brother, this a re- has evidence creates the record of the interview review, presumption parent buttable that a who to transcribe for use and available object may not perpetrated has for Elizabeth did not and counsel joint custody child. be awarded sole of a her absence. may This be overcome does not “[t]he claims record convincing clear and evidence that parties present, indicate require of the interests opportunity pres- they given an to be were participation parent. a parent’s as custodial ent, they right that to be or waived their specific findings shall cite of fact The court began, As the trial present.” that the or visitation ar- to show “originally on the record that it called stated rangement protects best child and the the time the case in Chambers at which the family parent other mem- or household opportunity had an to interview Court who is the victim domestic violence. ber of Flemming; were the child of Ms. and counsel 14-05-22(3). 14- See also NDCC NDCC time, that present at as well.” 07.1-01(2) defines violence as domestic following map that the it was “a road said harm, assault, “physical or the attorneys couple ... a outlined the Court harm, fear of infliction of imminent days ago presenta- in of terms the order of assault, bodily injury, or not committed through her tion of evidence.” self-defense, family complaining on the attorney, adequately that the was notified household members.” privately trial court would interview object procedure. and she did to the Even if the conduct did not violent anyone, if it harm threatened imminent harm object failure to was Her to how Jesse household, presump to someone the was a error. An interviewed waiver of arises, by specific must be addressed tion (N.D. O’Hearn, 387 730 drews v. N.W.2d only by findings, and can be overcome clear 1986). Therefore, er there is no reversible convincing inter evidence that “the best private from unsworn inter ror Jesse’s require parent’s child [the violent] ests of the view. participation parent.” as a NDCC custodial 301(a), 09—06.2(l)(j). Under “the NDREv 14— II presumption substitutes for evidence of presumed the fact the trier existence of until argues court mis- Elizabeth the trial from that the of fact finds credible evidence 09—06.2(l)(j) weight applied NDCC on the 14— presumed does not fact exist.” given in a to be custody. disagree. decision court about the trial a violence is factual determination domestic making initial clearly erro not be reversed unless will placement, “promote the trial court must Reed, v. at neous. Heck 529 N.W.2d of the child.” interests welfare interpretation law Statutory is a matter of so, To trial court 14-09-06.1. do NDCC fully appeal. Id. at 160. that is reviewable on various factors. NDCC must assess relevant the trial in this case nei We conclude Still, hierarchy of factors 14-09-06.2. misinterpreted misapplied nor the do ther considered, predomi domestic to be violence presumption. violence mestic of it. nates when there credible evidence (N.D. that, when Helbling, admitted 1990 Helbling v. Robert Reed, (N.D. boys, 1995); intended to with both Elizabeth leave Heck Krank, pot it off a 1995); one flower ... knocked Krank v. 529 N.W.2d 844 he “broke testified, pull 14-09-06.2(1)© also “I did counter.” Robert Part NDCC Beth phone out of the wall once when commands: leaving taking presump- told me she was off to were insufficient Austin, finding. Texas. That was back 1989.” tion. We affirm that differently: described the incidents angry Rob came home and he was because Ill digging up yard. [the children] were his I challenges They trying said: to catch the worms primary custody as going through as down acknowledges principal She Robert Jr.’s ground. I told him to leave them alone. baby-sitter parent testified that each “kind of They being up, kids. He blew “The equal had [him] times” between 1991 and way gets damn Md all the time.” He argues but that the “mere fact that one just pounded went wild. He on the coun- parent may spend have more time to holding I ter. Robert. I was stand- the child than the other due to a less de ing honestly in the kitchen. believe manding work schedule” is not determina my holding baby, if I mind wasn’t he “any jealousy part tive. She insists on the that, would have hit me. When he said he problems [about] Jesse and differences in the pot knocked that flower on the floor. [He] boys treatment of the two ... is not an pushed pot that flower across the kitchen. siblings uncommon situation of of half blood” It went down the wall the other room justify placement that does not the custodial dining across the room. with Robert. Elizabeth testified that she feared for her split custody siblings generally While is boys’ safety, and the and she moved out of disfavored, McAdams, McAdams v. 530 day. the house that same She also said she (N.D.1995), N.W.2d 647 we have affirmed it hadn’t been able to use the in the half-siblings. Kaloupek some cases of See through kitchen because Robert “smashed it (N.D.1989) Burfening, v. 440 N.W.2d 496 the wall when he was mad at me one time Worden, (half-siblings); Worden v. 434 repaired.” and it so was never (N.D.1989) (half-siblings). N.W.2d 341 See Robert, In 1990 when Elizabeth left the Gravning Gravning, also 389 N.W.2d 621 trial court “[she] understood was afraid of (N.D.1986) (siblings). We conclude the trial [Robert], claiming engaged that he had carefully reasoned its decision here to resulting various property violent acts place custody separately of Robert Jr. from damage.” The trial court concluded that Jesse. any is no claim that “[t]here there was ever physical abuse. The Court does not find The trial court found that Elizabeth had evidence of domestic violence sufficient to times, many changed jobs moved frequently, statute, raise under the stability” and showed a “lack of without “a N.D.C.C. 14-09-06.2.” plan living clear for her future.” Her ar- rangements “certainly the best permissible choice between two children,” interests of the minor the court views of the evidence is not errone said, “personal living and her life and her Dalin, ous. Dalin v. nearly situation are not as [Rob- stable as 52(a) dictates, As NDRCivP we ert’s].” respect opportunity of the trial court to weigh of the witnesses. antagonism The trial court saw between Elizabeth, instigated by Robert and recognized predominant

The trial court importance and voiced “concern that [Elizabeth] has consider- placed opinions certain ing ideas and in the the factors for of child mind custo- dy. places of Jesse which weighed conflicting The court Jesse the middle of evidence dispute her threatening about [Robert].” nature of Robert’s iden- acts, apparent tified decided the acts were “the bitterness that [Eliza- insufficient presumption. for the The acts expressed beth] inflicted no feels toward [Robert]” actual were isolated and remote in concern that Elizabeth’s attitude “would also time, and carry were viewable as ... demonstrative. over to Robert in an Jr. effort to specific The trial court finding made affect his relationship with his father.” Elizabeth, injury on even “places or assault After that Elizabeth Robert, though they so. she did Because dispute with” testified in the middle of her judge proper arbiter of the trial is the credi- explained that Jr. “Robert bility, finding. I accede to that length of time both lived a considerable Forks, primary but parents in Grand blow-ups If Robert’s two intended was with from [Robert] residence fear, etc., inflict would October, August late 1993.” The 1991 until statutory fulfill the definition domestic vio basically parent “would court reasoned each trigger presumption against lence things for Robert since do the same Jr.” receiving custody, regardless Robert’s very “[t]hey him much and want both love injury physi actual of whether there was Still, the court remarked for him.” abuse. is consonant with cal Our statute greater attention to his son’s on Robert’s expert violence view that domestic includes needs,” and reasoned that “educational against property in fact acts directed “when primary physical “[Robert] has been perpetrator doing these behaviors to August caretaker of Robert Jr. since 1991.” punish control or the adult victim.” Anne supports this cus- We conclude the al., Ganley, Impact et of Domestic “The Vio placement. todial on the and the Victim in the lence Defendant We affirm. Courtroom,” Violence: the Crucial Domestic Judge Role in Criminal Court Cases. WALLE, C.J., NEUMANN, VANDE Education, A National Judicial Model for J., concur. Fund, Family Prevention Violence (N.D. Gefroh, State v. Cf. SANDSTROM, J., concurs the result. 1993) property [damage to victim’s is evi Justice, LEVINE, concurring specially. victim in fear place dence intent to for her safety]. specially I to warn that ease write this support the should not be read to notion say I cannot that the trial court was clear- presumption only

the domestic violence ly finding erroneous in that Robert’s two “physical arises when there is evidence not intended to create fear isolated were injury.” abuse” or “actual harm, bodily injury, physical imminent testimony The court heard the assault. trial legislature has defined domestic vio- and assessed the witnesses. broadly phys- lence to include actual differently Although I I may have done ical harm but also “the 52(a), finder, fact I am under NDRCivP harm, physical infliction of imminent of fear findings and based on this bound bodily injury, NDCC 14-07.1- or assault.” record, say cannot 01(2). smashing that Robert’s pot ripping flower from the wall “not evidence any presumption

sufficient raise under the to (i.e.

statute,” I believe meant found)

implicitly the two isolated out- violence under the

bursts were not domestic they were not

statute because intended harm,

inflict imminent fear of

Case Details

Case Name: Ryan v. Flemming

Court Name: North Dakota Supreme Court

Date Published: Jun 27, 1995

Citation: 533 N.W.2d 920

Docket Number: Civ. 940274

Court Abbreviation: N.D.