Searching over 5,500,000 cases.


searching
Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.

Gagnon v. Gagnon

Supreme Court of North Dakota

March 30, 2017

William Scott Gagnon, Plaintiff and Appellant
v.
Tara Rose Gagnon, Defendant and Appellee

         Appeal from the District Court of Ward County, North Central Judicial District, the Honorable Stacy Joan Louser, Judge.

         AFFIRMED.

          Denise C. Hays-Johnson for plaintiff and appellant.

          Virginia A. Martin-Hansen for defendant and appellee.

          OPINION

          Crothers, Justice.

         [¶ 1] William Gagnon appeals a district court judgment awarding Tara Lara primary residential responsibility of the parties' three children. We affirm, concluding Gagnon failed to overcome the presumption that he not be awarded primary residential responsibility due to domestic violence.

         I

         [¶ 2] Gagnon and Lara married in 2011 and have three children. After separating in 2014 Gagnon sued for divorce and each party sought primary residential responsibility of the children. The district court entered a partial judgment in August 2015 granting the parties a divorce and an interim order granting Gagnon primary residential responsibility of the children. The court reserved the issue of permanent primary residential responsibility to allow Lara an opportunity to obtain counsel.

         [¶ 3] After a March 2016 hearing the district court awarded primary residential responsibility to Lara. The court found it was in the children's best interests to live with Lara and have more exposure to their Native American culture. The court also found Gagnon committed domestic violence against Lara and he failed to clearly show the children's best interests required him to have primary residential responsibility.

         II

         [¶ 4] A district court's award of primary residential responsibility is a finding of fact that we will not set aside unless it is clearly erroneous. Law v. Whittet, 2015 ND 16, ¶ 4, 858 N.W.2d 636. A finding of fact is clearly erroneous if it is induced by an erroneous view of the law, if no evidence supports it or after reviewing the entire record we are left with a definite and firm conviction a mistake has been made. Adams v. Adams, 2016 ND 169, ¶ 6, 883 N.W.2d 864. A court's award of primary residential responsibility must be made in light of the child's best interests, considering the relevant best interest factors under N.D.C.C. § 14-09-06.2(1). Schweitzer v. Mattingley, 2016 ND 231, ¶ 22, 887 N.W.2d 541.

         [¶ 5] Factor (j) of the best interest factors governs domestic violence:

"In determining parental rights and responsibilities, the court shall consider evidence of domestic violence. If the court finds credible evidence that domestic violence has occurred, and there exists one incident of domestic violence which resulted in serious bodily injury or involved the use of a dangerous weapon or there exists a pattern of domestic violence within a reasonable time proximate to the proceeding, this combination creates a rebuttable presumption that a parent who has perpetrated domestic violence may not be awarded residential responsibility for the child. This presumption may be overcome only by clear and convincing evidence that the best interests of the child require that parent have residential responsibility."

N.D.C.C. § 14-09-06.2(1)(j). When credible evidence of domestic violence exists, it is the predominate factor in primary residential responsibility decisions under N.D.C.C. § 14-09-06.2(1). Datz v. Dosch, 2013 ND 148, ¶ 18, 836 N.W.2d 598; Gietzen v. Gabel, 2006 ND 153, ¶ 9, 718 N.W.2d 552; Engh v. Jensen, 547 N.W.2d 922, 924 (N.D. 1996) ("We have interpreted the ...


Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.