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In re R.W.B.C.

Supreme Court of North Dakota

June 7, 2017

In the Interest of R.W.B.C., a minor child, by his presumed father Richard W. Colling, Plaintiff and Appellant
Adrienne Kay Behrens, Defendant and Appellee

         Appeal from the District Court of Burleigh County, South Central Judicial District, the Honorable James S. Hill, Judge.

          Suzanne M. Schweigert, Bismarck, N.D., for plaintiff and appellant.

          Theresa L. Kellington, Bismarck, N.D., for defendant and appellee.


          Tufte, Justice.

         [¶ 1] Richard Colling appeals a district court judgment awarding Adrienne Behrens primary residential responsibility of their child, R.W.B.C. We affirm, concluding the record supports the district court's findings.


         [¶ 2] Colling and Behrens dated from 2012 until 2014, and their son, R.W.B.C., was born in 2013. In 2014, Colling sought primary residential responsibility, and two years of contentious litigation followed. Each parent alleged the other parent had committed domestic abuse and frequently used drugs. An interim order awarded temporary custody to Colling after the district court received evidence showing, among other things, that R.W.B.C. was born with methamphetamine in his system. Subsequently, the court held a trial in June 2016.

         [¶ 3] After a two-day evidentiary hearing, the district court awarded primary residential responsibility to Behrens. The court concluded that only one factor under N.D.C.C. § 14-09-06.2 favored Behrens, with the rest of the factors favoring neither parent. In reaching this conclusion, the court's findings included the following: (1) between the time of the interim order and trial, Behrens underwent significant treatment for her addictions and remained sober; and (2) Colling's testimony was not credible, and Behrens was "more believable." The court found "[Behrens], without a doubt, created a more complete positive picture of her present position, likelihood of success, and degree of strengths as a parent than [Colling]."

         [¶ 4] Colling appeals. He argues the district court's findings relating to best interests factors (j), (d), and (f) were clearly erroneous. He also argues the district court judge had a duty to disclose his involvement in an earlier case in which Behrens was a party.


         [¶ 5] The first issue is whether the district court erred by awarding primary residential responsibility to Behrens. In exercising discretion to award primary residential responsibility, district courts must weigh the best interests factors under N.D.C.C. § 14-09-06.2(1). We review a district court's factual findings relating to these factors under our clearly erroneous standard. Dieterle v. Dieterle, 2013 ND 71, ¶ 6, 830 N.W.2d 571. "A finding of fact is clearly erroneous if it is induced by an erroneous view of the law, if no evidence exists to support it, or if the reviewing court, on the entire evidence, is left with a definite and firm conviction a mistake has been made." Wolt v. Wolt, 2010 ND 26, ¶ 7, 778 N.W.2d 786.

         [¶ 6] Colling argues the district court clearly erred in its findings relating to factors (j), (d), and (f). Factor (j), the domestic violence factor, is the dominant factor in cases involving alleged domestic violence. O'Hara v. Schneider, 2017 ND 53, ¶ 21, 890 N.W.2d 831. We thus begin by analyzing whether the district court clearly erred in finding Behrens did not commit domestic violence against Colling. Under § 14- 09-06.2(1)(j), district courts must determine whether domestic violence has occurred and, if so, whether the evidence rises to a level that triggers the rebuttable presumption.

         [¶ 7] Colling testified to three separate incidents in which Behrens allegedly committed domestic violence against him. One of these incidents resulted in an assault charge, to which she pled guilty. The district court found of Colling's allegations that (1) he lacked credibility and his version of events stretched believability and that (2) evidence provided by him to prove domestic violence was "staged and theatrical." Behrens had denied committing domestic violence, claiming she pled guilty to simple assault to move on with her life, and the district court found this persuasive.

         [¶ 8] Colling argues on appeal that the district court clearly erred in finding that none of the three domestic violence incidents occurred. Many of his arguments ask us to "reweigh the evidence" and "reassess the credibility of the witnesses, " which we ...

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