IN THE SUPREME COURT

STATE OF NORTH DAKOTA

2022 ND 178

Lee P. Queen, Plaintiff and Appellant

v.

Kimber L. Martel, Defendant and Appellee

and

State of North Dakota, Statutory Real Party in Interest and Appellee

No. 20220121

Appeal from the District Court of Morton County, South Central Judicial 

District, the Honorable Cynthia Feland, Judge.

REMANDED WITH INSTRUCTIONS.

Opinion of the Court by Tufte, Justice.

Elise A. Fischer (argued) and Theresa L. Kellington (on brief), Bismarck, N.D.,

for plaintiff and appellant.

Alex S. Kelsch, Mandan, N.D., for defendant and appellee.

Sheila K. Keller, Bismarck, N.D., for statutory real party in interest and 

appellee.

FILED 

IN THE OFFICE OF THE 

CLERK OF SUPREME COURT 

OCTOBER 4, 2022 

STATE OF NORTH DAKOTA
1

Queen v. Martel

No. 20220121

Tufte, Justice.

[¶1] Lee Queen appeals from a judgment awarding him and Kimber Martel 

equal residential responsibility of their minor child and ordering child support. 

Queen argues he should have been awarded primary residential responsibility 

and the district court erred in calculating his child support obligation. We 

conclude the district court failed to make sufficient findings of fact under best 

interests factor (j). We retain jurisdiction under N.D.R.App.P. 35(a)(3)(B) and 

remand for further proceedings consistent with this opinion.

I

[¶2] The parties were never married. They have one minor child together, 

H.L.Q., born in 2018. After a trial, the district court awarded equal residential 

responsibility of the child and ordered child support obligations for both 

parties, which, after offsetting the obligations, results in Queen paying $531 

per month.

II

[¶3] Queen argues that the district court erred in awarding equal residential 

responsibility of their minor child and that he should have been awarded 

primary residential responsibility. “A district court’s decision on residential 

responsibility is a finding of fact subject to the clearly erroneous standard of 

review.” Cty. of Sargent v. Faber, 2022 ND 155, ¶ 6, 978 N.W.2d 652. A finding 

of fact is clearly erroneous if it is induced by an erroneous view of the law, if no 

evidence supports it, or if, after reviewing the entire record, we are left with a 

definite and firm conviction a mistake has been made. Id.

[¶4] In determining residential responsibility, the district court made 

findings of fact on the best interests factors under N.D.C.C. § 14-09-06.2(1). 

The court found factors (e) and (h) slightly favored Martel and the remaining 

factors either favored neither party or were inapplicable. Queen argues the 

court erred in analyzing all factors, except factors (c) and (i).
2

[¶5] Factor (j) concerns evidence of domestic violence and provides:

In determining parental rights and responsibilities, the court shall 

consider evidence of domestic violence. If the court finds credible 

evidence that domestic violence has occurred, and there exists one 

incident of domestic violence which resulted in serious bodily 

injury or involved the use of a dangerous weapon or there exists a 

pattern of domestic violence within a reasonable time proximate to 

the proceeding, this combination creates a rebuttable presumption 

that a parent who has perpetrated domestic violence may not be 

awarded residential responsibility for the child. This presumption 

may be overcome only by clear and convincing evidence that the 

best interests of the child require that parent have residential 

responsibility. The court shall cite specific findings of fact to show 

that the residential responsibility best protects the child and the 

parent or other family or household member who is the victim of 

domestic violence. If necessary to protect the welfare of the child, 

residential responsibility for a child may be awarded to a suitable 

third person, provided that the person would not allow access to a 

violent parent except as ordered by the court. If the court awards 

residential responsibility to a third person, the court shall give 

priority to the child’s nearest suitable adult relative. The fact that 

the abused parent suffers from the effects of the abuse may not be 

grounds for denying that parent residential responsibility. As used 

in this subdivision, “domestic violence” means domestic violence as 

defined in section 14-07.1-01. A court may consider, but is not 

bound by, a finding of domestic violence in another proceeding 

under chapter 14-07.1.

N.D.C.C. § 14-09-06.2(1)(j).

[¶6] The district court found both parties had perpetrated domestic violence:

In 2020, Martel went to Queen’s residence when she was 

intoxicated and struck Queen during the altercation resulting in 

her conviction for Domestic Violence. Martel received a Deferred 

Imposition of Sentence and was required to obtain a chemical 

dependency evaluation which indicated no treatment was 

required. H.L.Q. was not present during the incident.
3

In March of 2018, not long after H.L.Q.’s birth, the parties 

were involved in a verbal argument which turned physical and led 

to the issuance of a Domestic Violence Protection Order prohibiting 

Queen from having contact with Martel and prohibiting Queen’s 

consumption of alcohol during parenting time with H.L.Q. During 

the physical altercation, Queen was found to have choked Martel, 

struck her head on the floor several times causing loss of 

consciousness, a sprained wrist and multiple bruises on her body. 

Medical records from Martel’s visit to the emergency room 

following the incident reflect that Martel sustained a contusion of 

the scalp; concussion with loss of consciousness; contusion on her 

back, neck and face; and a bruised and sprained wrist. H.L.Q. was 

at home at the time of the incident.

(Citations omitted.)

[¶7] Because the district court found domestic violence had occurred, 

including at least one incident resulting in what appears to have been serious 

bodily injury, the court was required to determine whether there is a rebuttable 

presumption that a parent who has perpetrated domestic violence may not be 

awarded residential responsibility for the child. If a presumption exists, the 

court must then determine whether the presumption has been overcome by 

clear and convincing evidence that the best interests of the child require that 

parent have residential responsibility, citing specific findings of fact to show 

that the residential responsibility best protects the child and the parent or 

other family or household member who is the victim of domestic violence. If 

necessary to protect the welfare of the child, residential responsibility for a 

child may be awarded to a suitable third person, providing priority to the 

child’s nearest suitable adult relative. However, the fact that the abused parent 

suffers from the effects of the abuse may not be grounds for denying that parent 

residential responsibility. Because the court did not undertake this analysis or

make findings of fact on whether the rebuttable presumption is triggered

against either party and, if so, rebutted, we remand to the district court to 

make these findings and, if necessary, reassess its award of residential 

responsibility.
4

III

[¶8] We conclude the district court did not make sufficient findings of fact 

under N.D.C.C. § 14-09-06.2(1)(j) to permit appellate review. We retain 

jurisdiction under N.D.R.App.P. 35(a)(3)(B) and remand to the district court 

with instructions that within thirty days from the filing of this opinion, the 

court make specific findings of fact on whether the domestic violence rebuttable 

presumption is triggered against either party and, if so, whether the 

presumption, in either or both cases, is rebutted. Depending upon its findings, 

the court may or must reassess its award of residential responsibility.

[¶9] Jon J. Jensen, C.J.

Gerald W. VandeWalle

Lisa Fair McEvers

Jerod E. Tufte

Bruce B. Haskell, S.J.

[¶10] The Honorable Bruce B. Haskell, Surrogate Judge, sitting in place of 

Crothers, J., disqualified.