Thompson v. Olson

SANDSTROM, Justice,

dissenting.

[¶ 23] Because it appears the district court failed to apply the correct legal standard for triggering the presumption against awarding custody to certain perpetrators of domestic violence, I dissent. I would reverse and remand for the district court to apply the correct law.

*234[¶ 24] Domestic violence is unacceptable, and it is a serious societal problem. See Bruner v. Hager, 534 N.W.2d 825, 829 (N.D.1995) (Sandstrom, J., concurring in the result); Schestler v. Schestler, 486 N.W.2d 509, 513 (N.D.1992) (Levine, J., dissenting). Children who grow up in a climate of domestic violence are adversely affected and are themselves more likely than others to grow up to be perpetrators of domestic violence. See Hearing on H.B. 1393 Before the House Human Servs. Comm., 53d N.D. Legis. Sess. (Jan. 27, 1993) (exhibit to testimony of Bonnie Paleeek, N.D. Council on Abused Women’s Services, titled “Domestic Violence Fact Sheets” by the Nat’l Woman Abuse Prevention Project); see also Schestler, 486 N.W.2d at 514 (Levine, J., dissenting) (“the trial court denuded the statute of its good intent to put to rest ... the failure of courts to recognize that the abuse of one parent by another, even in the absence of physical abuse to the children, has serious detrimental effects on the children nonetheless .... ”).

[¶ 25] In 1989, the North Dakota Legislative Assembly decided that domestic violence should be a factor in deciding child custody. 1989 N.D. Sess. Laws ch. 178, § 2. Subsequently, the legislature has struggled to determine when domestic violence should become the controlling factor when other factors would point the other way in the award of custody. See id.; 1993 N.D. Sess. Laws ch. 144, § 2; 1997 N.D. Sess. Laws ch. 147, § 2.

[¶ 26] Schestler, 486 N.W.2d 509, was a turning point. In Schestler, a majority of this Court upheld the award of custody of two children to a perpetrator of domestic violence and a child sexual abuser, reasoning that the presumption did not apply because he had not physically or sexually abused those children. Id. at 512; see also Hearing on H.B. 1893 Before the House Human Servs. Comm., 53d N.D. Legis. Sess. (Jan. 27, 1993) (testimony of Carol Larson, Attorney for Wanda Schestler). The legislature reacted to Schestler by amending the statutes to create a rebutta-ble presumption that custody could not be awarded to a perpetrator of domestic violence. 1993 N.D. Sess. Laws ch. 144, § 2. This Court took the legislature at its word, and if the letter of the law was not clear enough, this Court made clear that the presumption applied no matter how slight the “violence,” no matter how remote in time, and no matter how isolated the event may have been. See generally Huesers v. Huesers, 1997 ND 33, 560 N.W.2d 219; Anderson v. Hensrud, 548 N.W.2d 410 (N.D.1996); Engh v. Jensen, 547 N.W.2d 922 (N.D.1996); Heck v. Reed, 529 N.W.2d 155 (N.D.1995). This Court made clear that “pushing” someone’s “buttons” was no excuse or justification. Huesers, at ¶ 11 (citing Anderson, 548 N.W.2d at 413-14; Engh, 547 N.W.2d at 926; Heck, 529 N.W.2d at 164). A spouse who could provoke one shove in anticipation of divorce was usually guaranteed custody, no matter how much the best interests of the child would be otherwise served by custody going to the other parent. Hearing on S.B. 2235 Before the Senate Judiciary Comm., 55th N.D. Legis. Sess. (Jan. 29, 1997) (testimony of Bonnie Palecek, N.D. Council on Abused Women’s Services).

[¶ 27] Many of those who had promoted the earlier legislation went to the 1997 legislature for a mid-course correction. Hearing on S.B. 2235 Before the Senate Judiciary Comm., 55th N.D. Legis. Sess. (Jan. 29, 1997) (testimony of Sherry Mills Moore, State Bar Ass’n of N.D. Family Law Task Force). At their urging, the legislature changed the law so that domestic violence was always a factor to be considered in the award of custody, but only “serious” domestic violence would trigger the presumption. 1997 N.D. Sess. Laws ch. 147, § 2. To trigger the presump*235tion the legislature said there had to be a pattern of domestic violence reasonably proximate in time, serious bodily injury, or the use of a dangerous weapon. Id.

[¶ 28] In this case, the “serious' bodily injury” was found by the district court. The legislature has told us how to interpret the term. The legislature tells us that when a term in the North Dakota'' Century Code is given a definition in the code that definition applies to other uses of that term. N.D.C.C. § 1-01-09. The legislature has told us that when it uses a term with an established definition, that is what it means. N.D.C.C. § 1-02-02.

[¶ 29] In N.D.C.C. § 12.1-01-04(29), the legislature had defined “serious bodily injury” to mean “bodily injury that creates a substantial risk of death or which causes serious permanent disfigurement, unconsciousness, extreme pain, permanent loss or impairment of the function of any bodily member or organ, or a bone fracture.” The term also has an established meaning. Black’s Law Dictionary defines “serious bodily injury” to mean “[s]erious physical impairment of the human body; esp., bodily injury that creates a substantial risk of death or that causes serious, permanent disfigurement or protracted loss or impairment of the function of any body part or organ.” Black’s Law Dictionary 802 (8th ed.2004).

[¶ 30] Even though we need not look to it, the legislative history reflects that these are the definitions it contemplated. When the Judiciary Committee inquired what “serious bodily injury” meant, the bill drafters responded that the definition of serious bodily injury found in the criminal code at N.D.C.C. § 12.1-01-04(29) was the definition they contemplated. Hearing on S.B. 2235 Before the Senate Judiciary Comm., 55th N.D. Legis. Sess. (Jan. 29, 1997) (testimony of Sherry Mills Moore, State Bar Ass’n of N.D. Family Law Task Force). The drafters considered including the definition in the bill but decided not to so the statute would not be exclusively limited to that definition and the court to look to other accepted definitions. Id. (testimony of Sherry Mills Moore, State Bar Ass’n of N.D. Family Law Task Force, and Lee A. Christofferson, District Judge). Therefore, the legislature intended the court to look to N.D.C.C. § 12.1-01-04(29) and other accepted definitions such as Black’s Law Dictionary.

[¶ 31] The evidence before the district court was that Olson had red marks, bruises, and scratches. She did not go to a doctor until the next day. The medical report reflects that Olson’s injuries were “Contusion of left hip, left rib, [and] left arm secondary to alleged domestic assault.” According to the medical report, Olson’s treatment plan included missing one day of work and icing her bruised hip.

[¶ 32] The district court applied the presumption even though the evidence makes application of the presumption questionable. Although Thompson’s conduct is inexcusable, the evidence reflects that Olson’s injuries were not serious. The evidence does not support a finding that the injuries created “a substantial risk of death” or caused “serious permanent disfigurement, unconsciousness, extreme pain, permanent loss or impairment of the function of any bodily member or organ,” or broken bones.

[¶ 33] As Justice Levine wrote in Schestler, “I would reverse this case and remand it to the trial judge with a simple instruction to do it over and do it right. I would request that he apply the statute in the way it was intended by the legislature.” 486 N.W.2d at 515 (Levine, J., dissenting).

[¶ 34] Dale V. Sandstrom