Jennifer L. Dickson, Plaintiff and Appellant
Brent D. Dickson, Defendant and Appellee
from the District Court of Williams County, Northwest
Judicial District, the Honorable Joshua B. Rustad, Judge.
E. Kalil, Williston, ND, for plaintiff and appellant.
D. Olson, Williston, ND, for defendant and appellee.
1] Jennifer Dickson appeals from a district court order
denying her motion to modify residential responsibility of
the parties' minor children. We conclude the district
court failed to correctly apply the law and make necessary
findings regarding the best interest factors, including the
factor on domestic violence. We reverse and remand for
2] Brent Dickson and Jennifer Dickson were divorced in August
2016. Brent and Jennifer have two children, and the
stipulated divorce judgment provided for equal residential
responsibility between them. In November 2016, the district
court held a hearing in a separate case on allegations of
domestic violence arising from an incident in October 2016.
The court entered a domestic violence protection order
3] In February 2017, Jennifer moved for modification of
residential responsibility, seeking primary residential
responsibility. The district court held a hearing on the
motion in June 2017. At the hearing, evidence was presented
that in October 2016, Brent called Jennifer after he had been
drinking and demanded she meet him, threatening to kill
himself. Brent sent Jennifer a text with a picture of himself
with a rifle in his mouth. Brent texted Jennifer to come pick
up the kids and then sent a message to her indicating the
picture was "[t]he last thing you will ever get from me.
Goodbye." Brent then called Jennifer multiple times.
According to Jennifer, shortly after 3:00 a.m., she agreed to
meet Brent in a parking lot to discuss the situation. During
their meeting, Brent picked up a firearm and demanded
Jennifer pick the children up from his house. Jennifer
refused and Brent drove away as a security guard approached.
Jennifer remained at the parking lot until 3:46 a.m., when
her 16-year-old daughter called to inform her that Brent took
both children to her house. Jennifer called the police and
officers met her at her house. Officer Craig Ware testified
he thought Brent had consumed five or more beers, had an odor
of alcohol, and given his behavior and mental state, assumed
Brent "was intoxicated and/or suffering from some sort
of mental illness." Officers transported Brent for a
psychiatric evaluation. In Jennifer's affidavit in
support of the protection order, she described two similar
incidents of Brent threatening suicide with a gun.
4] In addition to the events occurring in October 2016,
evidence was presented that Brent exchanged multiple text
messages with his 16-year-old daughter. In the text messages,
Brent: (1) tells his daughter to delete the messages from him
so that he does not get in trouble; (2) indicates his
"therapist" told him not to talk to her anymore
until he can get his anger under control; (3) states multiple
times that Jennifer won and now gets to keep the kids away
from him; (4) tells his daughter Jennifer wants full custody
and that he does not know what to do, saying goodbye and that
he loves them; (5) informs his daughter he did not have a
place to live and was living out of his truck; (6) asks his
daughter to have dinner with him and then tells her he might
go to jail if she does, so she needs to delete the messages;
and (7) places blame on the daughter and Jennifer for him
being arrested. The daughter replied telling Brent to stop
acting like a child, indicated she wants him to get help for
her and her sister's safety, and told him to stop saying
they do not want him in their lives. Jennifer testified the
children were impacted by the incident occurring in October
2016, they have withdrawn from people, and tend to act out.
Jennifer further testified the 16-year-old daughter was in
5] During the hearing, the parties inquired whether the
statutory rebuttable presumption of domestic violence applied
to the case. The district court stated "I don't need
to make another finding because it's already a
finding." The court further clarified, "So, yes, I
will note that there is the rebuttable presumption in this
6] In July 2017, the district court denied the motion for
primary residential responsibility. Jennifer then moved for a
stay of the court's order pending appeal. The court again
denied her motion. Jennifer timely appealed the order denying
her motion to modify residential responsibility.
7] Jennifer argues the district court erred in denying her
motion to modify residential responsibility of the
parties' minor children, because it failed to properly
analyze the best interest factors, including the statutory
presumption on domestic violence. We exercise a limited
review of child custody awards. A district court's
decisions on child custody, including an initial award of
custody, are treated as findings of fact and will not be set
aside on appeal unless clearly erroneous. 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. Under
the clearly erroneous standard of review, we do not reweigh
the evidence or reassess the credibility of witnesses, and we
will not retry a custody case or substitute our judgment for
a district court's initial custody decision merely
because we might have reached a different result. A choice
between two permissible views of the weight of the evidence
is not clearly erroneous, and our deferential review is
especially applicable for a difficult child custody decision
involving two fit parents. Thompson v. Thompson,
2018 ND 21, ¶ 7, 905 N.W.2d 772 (quoting Jelsing v.
Peterson, 2007 ND 41, ¶ 11, 729 N.W.2d 157). A
court's decision whether to modify residential
responsibility is also a finding of fact, which will not be
reversed on appeal unless it is clearly erroneous. Valeu
v. Strube, 2018 ND 30, ¶ 8, 905 N.W.2d 728.
Section 14-09-06.6, N.D.C.C., governs the post-judgment
modification of primary residential responsibility.
Generally, a parent may move to modify primary residential
responsibility under the framework provided by N.D.C.C.
§ 14-09-06.6. See Regan v. Lervold, 2014 ND 56,
¶ 12, 844 N.W.2d 576. When the parents have joint or
equal residential responsibility, however, an original
determination to award "primary residential
responsibility" is necessary. See Maynard v.
McNett, 2006 ND 36, ¶ 21, 710 N.W.2d 369 (original
determination of primary residential responsibility is
appropriate when the parties have joint residential
responsibility and one party wishes to relocate); see
also N.D.C.C. § 14-09-00.1(6) ("'Primary
residential responsibility' means a parent with more than
fifty percent of the residential responsibility.");
N.D.C.C. § 14-09-00.1(7) ("'Residential
responsibility' means a parent's responsibility to
provide a home for the child."). This is also the case
when the earlier residential responsibility determination is
based on the parties' stipulation. See Wetch v.
Wetch, 539 N.W.2d 309, 312-13 (N.D. 1995) ("if the
previous custody placement was ...