While recitations of evidence alone are not appropriate findings of fact, a trial court can describe testimony as part of making findings of fact regarding credibility and resolving disputed issues. The trial court did not err in concluding plaintiff failed to prove defendant committed an act of domestic violence. 

The plaintiff and defendant were married. Upon separation of the parties, wife filed a complaint for a DVPO alleging husband had sexually assaulted and raped her approximately 50-100 times throughout their marriage. After a trial during which both parties testified, the trial court concluded that wife failed to prove grounds for a DVPO. Wife appealed. Wife first argued that the following finding of fact was not supported by competent evidence and “merely recited the evidence” and did not serve as an ultimate finding of fact: “[Wife] contends that [Husband] “raped” her 50 to 100 times during their 2-and-a-half year marriage. She described several occasions when she said no and he didn’t stop. [Husband] denies ever continuing to have sex with [Wife] when she told him to stop or pushed him off except when she was saying so while laughing or in a playful manner. 

The statutes regarding sexual offenses that are applicable require evidence of by [sic] force and against the will of the victim. The evidence of “against her will” is her saying she said no and him contradicting that evidence saying he never proceeded past a non playful laughing no similar to when they were play wrestling. There is almost no evidence from which the court could find any alleged action was by force. The court, considering all of the evidence and weighing the credibility of each witness, cannot find by the greater weight of the evidence that [Husband] committed an act of domestic violence.” 



The court of appeals disagreed with the wife and held that evidence in the record supported everything included in this finding, and that the finding was an appropriate finding. The court of appeals agreed that recitations of testimony and other evidence are not findings of fact, but recitations that include “an indication concerning whether the judge deemed the relevant portion of the testimony credible” are appropriate. The appellate court stated, “there is nothing impermissible about describing evidence, as long as the court ultimately makes its own findings, resolving any material disputes.” While this finding by the trial court set out the conflicting testimony presented by the parties, the finding also addressed the weight and credibility of the evidence and resolved that the evidence was insufficient to meet plaintiff’s burden of proof. The Plaintiff also argued that the trial court should have concluded that the defendant committed an act of domestic violence. The Plaintiff testified extensively about all the times the parties engaged in sexual intercourse. Although the plaintiff testified that she did not consent to the acts, the trial court did not find the evidence sufficient to establish that the defendant forced the plaintiff to have sex. Because the trial court did not make findings that would support the conclusion that defendant committed an act of domestic violence, the trial court did not err in denying plaintiff’s request for a DVPO.