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Dominique L. Smith v. Angie Abigail Martinez

July 13, 2011

DOMINIQUE L. SMITH,
PLAINTIFF AND APPELLANT
v.
ANGIE ABIGAIL MARTINEZ, DEFENDANT AND APPELLEE



Appeal from the District Court of Grand Forks County, Northeast Central Judicial District, the Honorable Joel D. Medd, Judge.

The opinion of the court was delivered by: Kapsner, Justice.

N.D. Supreme CourtSmith v. Martinez,

2011 ND 132

This opinion is subject to petition for rehearing. [Go to Documents]

[Download as WordPerfect] Concurrence filed.

REVERSED AND REMANDED.

Opinion of the Court by Kapsner, Justice.

Smith v. Martinez No. 20100309

[¶1] Dominique L. Smith appeals a district court judgment granting Angie Abigail Martinez primary residential responsibility of the parties' child, C.R.S. We conclude the district court made inadequate findings on domestic violence between the parties and the presumption against awarding primary residential responsibility to the perpetrator of domestic violence. We reverse and remand to the district court to make the necessary findings.

I

[¶2] Smith and Martinez have never been married to each other. They have one child, C.R.S., born in 2009. Shortly after C.R.S. was born, Martinez left North Dakota and moved to Texas. Smith initiated an action seeking primary residential responsibility of C.R.S. At the district court hearing, both parties alleged the other perpetrated incidents of domestic violence. Smith alleged Martinez had been violent, had a felony record, was unemployed, and had a "serious psychological history." Martinez alleged Smith caused the problems she had, and she has improved since leaving Smith. In its analysis of the factors to determine the best interests of the child, the district court included some findings on domestic violence between the parties, but the court did not address the domestic violence presumption. The court awarded Martinez primary residential responsibility with parenting time for Smith. Smith appealed, arguing the court erred by not analyzing whether the domestic violence presumption applied, and he argued the court erred in its findings on several other factors under the best interests of the child analysis.

II

[¶3] This Court reviews an award of primary residential responsibility under the clearly erroneous standard of review. Boeckel v. Boeckel, 2010 ND 130, ¶ 9, 785 N.W.2d 213. This Court does not reweigh the evidence or reassess the credibility of witnesses, nor does this Court substitute its judgment for a district court's initial decision. Id. A district court's decision awarding primary residential responsibility is a finding of fact which will not be set aside on appeal unless it is induced by an erroneous view of the law, if no evidence exists to support it, or if on the entire record this Court is left with a definite and firm conviction a mistake has been made. Duff v. Kearns-Duff, 2010 ND 247, ¶ 5, 792 N.W.2d 916. A choice between two permissible views of the weight of the evidence is not clearly erroneous. Id. A district court shall consider the best interests of the child in awarding primary residential responsibility, and the court must consider all the relevant factors under N.D.C.C. § 14-09-06.2(1). Id. at ¶ 6.

[¶4] On appeal, Smith argued the district court erred in applying factors (d), (e), (f), (g), and (j) of N.D.C.C. § 14-09-06.2(1) in its analysis of the best interests of the child. Smith argued the district court erred by not applying the domestic violence presumption under factor (j). Smith did not ...


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