concurring specially.
I write specially to warn that this ease should not be read to support the notion that the domestic violence presumption only arises when there is evidence of “physical abuse” or “actual injury.”
The legislature has defined domestic violence broadly to include not only actual physical harm and bodily injury, but also “the infliction of fear of imminent physical harm, bodily injury, or assault.” NDCC § 14-07.1-01(2). In finding that Robert’s smashing a flower pot and ripping the phone from the wall were “not evidence of domestic violence sufficient to raise any presumption under the statute,” I believe the trial court meant (i.e. implicitly found) that the two isolated outbursts were not domestic violence under the statute because they were not intended to inflict fear of imminent physical harm, or bodily injury or assault on Elizabeth, even though she testified they did so. Because the trial judge is the proper arbiter of credibility, I accede to that finding.
If Robert’s two blow-ups were intended to inflict fear, etc., on Elizabeth, they would fulfill the statutory definition of domestic violence and trigger the presumption against Robert’s receiving child custody, regardless of whether there was actual injury or physical abuse. Our statute is consonant with the expert view that domestic violence includes acts directed against property “when in fact the perpetrator is doing these behaviors to control or punish the adult victim.” Anne Ganley, et al., “The Impact of Domestic Violence on the Defendant and the Victim in the Courtroom,” Domestic Violence: the Crucial Role of the Judge in Criminal Court Cases. A National Model for Judicial Education, The Family Violence Prevention Fund, 1991. Cf. State v. Gefroh, 495 N.W.2d 651 (N.D.1993) [damage to victim’s property is evidence of intent to place victim in fear for her safety].
I cannot say that the trial court was clearly erroneous in finding that Robert’s two isolated acts were not intended to create fear of imminent physical harm, bodily injury, or assault. The trial court heard the testimony and assessed the credibility of the witnesses. Although I may have done differently were I the fact finder, under NDRCivP 52(a), I am bound by the findings and based on this record, I cannot say that they are clearly erroneous.