A trial court's custody determination is a finding of fact which we will not reverse on appeal unless the finding is clearly erroneous. N.D.R. Civ. P. 52(a); Krank v. Krank, 541 N.W.2d 714 (N.D. 1996). 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 that a mistake has been made.'"
The "lapse of time alone is not enough to overcome the statutory presumption against awarding custody to a perpetrator of domestic abuse." Krank v. Krank , 541 N.W.2d 714, 717 (N.D. 1996). While Krank involved the statutory presumption on domestic violence under N.D.C.C. § 14-09-06.2(1)(j), the theory is the same.
Univ. of Alaska Anchorage Justice Ctr. & Council on Domestic Violence & Sexual Assault , Intimate Partner Violence and Sexual Violence in the State of Alaska : Key Results From the 2015 Alaska Victimization Survey (2015), https://www.uaa.alaska.edu/academics/college-of-health/departments/justice-center/research/alaska-victimization-survey/_documents/avs-alaska-statewide2015.summary.1103.051a.pdf.See Mary Ann Dutton, Understanding Women's Responses to Domestic Violence: A Redefinition of Battered Woman Syndrome , 21 Hofstra L. Rev. 1191, 1208-09 (1993) ; see also B.C. v. T.G. , 430 N.J.Super. 455, 65 A.3d 281, 288 (2013) ("The New Jersey Supreme Court has expressly recognized the reality that domestic violence often repeats itself in cycles." (citing State v. Kelly , 97 N.J. 178, 478 A.2d 364 (1984) ) ); Krank v. Krank , 541 N.W.2d 714, 718 (N.D. 1996) ("It is common for domestic abuse to occur as a stage in a cycle of violence."). 1. Res judicata extinguished Sarah's claim for a new protective order.
This Court has recognized that "domestic violence is a learned pattern of behavior aimed at gaining a victim's compliance," and "[w]hile separation may be more successful than rehabilitation in ceasing the violence, separation `does not change the psychological characteristics of the parties.'" Engh v. Jensen, 547 N.W.2d 922, 926 (N.D. 1996) (quoting Heck v. Reed, 529 N.W.2d 155, 164-65 (N.D. 1995) and Krank v. Krank, 541 N.W.2d 714, 718 (N.D. 1996)). [¶ 17] Here, the district court's analysis and explanation focused on the likelihood of domestic violence occurring between the parties in the future.
A trial court's custody decision is a finding of fact that we will not reverse unless it is clearly erroneous. Krank v. Krank, 541 N.W.2d 714, 716 (N.D. 1996). As we explained in Heck v. Reed, 529 N.W.2d 155, 159 (N.D. 1995), "[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 that a mistake has been made."
"Krank v. Krank, 541 N.W.2d 714, 716 (N.D. 1996). Recognizing the lack of an essential finding of fact by the trial court, the majority writes: "While more detailed findings on this one incident might have facilitated our review, we see insufficient evidence tending to credibly show `infliction of fear of imminent physical harm' or domestic violence by Diane to reverse and remand for specific findings."
Although I continue to disagree with the majority in significant ways about the interpretation and application of the domestic violence presumption of N.D.C.C. § 14-09-06.2(1)(j), see, e.g., Heck v. Reed, 529 N.W.2d 155, 166-67 (N.D. 1995) (Sandstrom, J., concurring in the result); Bruner v. Hager, 534 N.W.2d 825, 829 (N.D. 1995) (Sandstrom, J., concurring in the result); Krank v. Krank, 541 N.W.2d 714, 719 (N.D. 1996) (Sandstrom, J., dissenting); Owan v. Owan, 541 N.W.2d 719, 723 (N.D. 1996) (Sandstrom, J., dissenting); Engh v. Jensen, 547 N.W.2d 922 (N.D. 1996) (Sandstrom, J., concurring specially), the majority correctly reverses here. I specifically join in the majority's application of the term "family or household member."