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Mowan v. Berg

Supreme Court of North Dakota

April 28, 2015

Darin Jeffrey Mowan, Plaintiff and Appellee
v.
Brittney Ann Berg, Defendant and Appellant

Page 524

Appeal from the District Court of Ward County, North Central Judicial District, the Honorable Gary H. Lee, Judge.

Bonnie Paradis Humphrey (argued), Minot, ND, and Melissa Elizabeth Leathers (on brief), Fort Collins, CO, for plaintiff and appellee.

Kyle Richard Craig, Minot ND, for defendant and appellant.

Daniel J. Crothers, Lisa Fair McEvers, Carol Ronning Kapsner. Gerald W. Vandewalle, C.J., concur in the result.

OPINION

Page 525

Daniel J. Crothers, Justice.

[¶1] Brittney Ann Berg appeals from a district court judgment awarding primary residential responsibility of the parties' minor child to Darin Jeffrey Mowan. Berg argues the district court erred by failing to make specific and detailed findings regarding incidences of domestic violence and by

Page 526

ignoring significant uncontested evidence favoring one party. Mowan argues the district court did not err because no credible evidence of domestic violence rising to the level requiring a rebuttable presumption existed and because the best interests of the child factors favor Mowan. We reverse the district court's findings under factor (j). We affirm the district court's findings under factor (b). We reverse the district court's judgment and remand for further proceedings.

I

[¶2] Berg and Mowan, who never married, have a child born in 2012. Mowan resides in Minot, North Dakota. In May 2013, Berg moved from Minot to Illinois and then relocated to Iowa in December 2013, taking the child with her. In September 2013, Mowan sought primary residential responsibility of the child.

[¶3] At trial, both parties tried to enter evidence of a domestic violence incident. In September 2010, an incident occurred between the two for which both Berg and Mowan were charged with simple assault domestic violence, class B misdemeanors. The charges against Mowan were dismissed, but Berg pled guilty to simple assault domestic violence. Discussion of this incident was objected to and sustained by the district court. The court explained:

" [E]vidence of domestic violence is pertinent if the Court finds credible evidence that the violence has occurred; and if there is one incident which results have been serious bodily injury; which would mean that it was not a B misdemeanor; it would be an A misdemeanor or above.
" Or. there was a pattern of violence within a reasonable time approximate [sic] to the proceedings way back in 2011, that's three years ago. We're not approximate [sic] to the proceeding. So I'm not sure how this has a whole lot of bearing here."

Later attempts to enter testimony regarding this incident also were objected to and sustained. Berg also testified about many other incidents regarding Mowan's behavior.

[¶4] In weighing factor (j), evidence of domestic violence, the district court explained:

" There was evidence of domestic violence, however, it apparently occurred in 2010, two years before the child was even born. For the Court to consider a charge of domestic violence in this setting, there must be evidence of serious bodily injury, the use of a weapon, or a pattern of abuse reasonably proximate in time to this proceeding. Since the matters appear to have been misdemeanors, the Court can assume the incidents did not involve serious bodily injury, or the use of a weapon. In that event the charges would no doubt have risen to a felony level. Further, one incident does not create a pattern of abuse. Finally, the incident is not proximate in time to these proceedings, occurring approximately three ...

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