IN THE SUPREME COURT
STATE OF NORTH DAKOTA
|Supreme Court Case No. 20090278|
|District Court No. 08-09-R-00454|
Appeal from the Domestic Violence Protection Order
Dated September 9, 2009
Hon. Gail Hagerty, Presiding
|Kent M. Morrow||Rhonda Hanneman.|
|State Bar ID#03503||Appellee|
|Attorney for Appellant|
|411 N. 4th Street #6||Bismarck, ND 58504|
|Bismarck, ND 58501|
|(701) 255-6378 facsimile|
|TABLE OF CONTENTS|
|Table of Contents||....page 2|
|Table of Authorities||page. 3|
|Did the Court have sufficient evidence to support issuing a|
|Domestic Violence Protection Order?|
|Did the trial court err when it refused to dismiss the petition for domestic violence protection order?|
|Statement of Facts||..¶3-9|
|Statement of Proceedings||...¶10-14|
|Law and Argument||..¶15-34|
|Certificate of Service.page 12|
|TABLE OF AUTHORITIES|
|Cesare v. Cesare, 154 N.J. 394, 713 A.2d 390, 395 (1998).||.¶ 18|
|Ficklin v. Ficklin, 2006 ND 40, 710 N.W.2d 387, 390.||.¶ 17|
|Frisk v. Frisk, 2005 ND 154, ¶ 6, 703 N.W.2d 341.||.¶ 17|
|Hofsomer v. Hofsomer Excavating, Inc., 488 N.W.2d 480 (N.D. 1992).||..¶ 32|
|Lawrence v. Delkamp, 2000 ND 214, ¶ 7, 620 N.W.2d 151||....¶ 17|
|Lovcik v. Ellingson, 1997 ND 201, ¶ 10, 569 N.W.2d 697.||..¶17, 18|
|Peters-Riemers v. Riemers, 2001 ND 62, ¶ 8, 624 N.W.2d 83||.¶18, 32|
|Ryan v. Fleming, 533 N.W.2d 920, 923 (N.D. 1995).||...¶ 17|
|State v. Kurle, 390 N.W.2d 48, 49 (N.D. 1986)||...¶ 21|
|Steckler v. Steckler, 492 N.W.2d 76, 80 (N.D. 1992)||.¶ 21|
|Ternes v. Knispel, 374 N.W.2d 879 (N.D. 1985).||.¶ 34|
|North Dakota Century Code:|
|North Dakota Rules of Civil Procedure:|
|Rule 19||..¶ 33|
|North Dakota Rules of Criminal Procedure:|
|Rule 41(b)||.¶ 33|
|Black's Law Dictionary 34 (6th Ed. 1990)||..¶ 21|
|Doctrine of Res Judicata||..¶ 13, 32, 34|
1. Did the Court have sufficient evidence to support issuing a Domestic Violence Protection Order?
2. Did the Court err when it refused to dismiss the Petition for Domestic Violence Protection Order?
STATEMENT OF FACTS
3. Rhonda Hanneman and Arden Nygaard were never married. They did have two children born during their relationship. The relationship failed and the parties separated.
4. On June 9, 2009, Rhonda Hanneman stabbed Arden Nygaard in the back as he was leaving her residence. (Tr.p. 4, ll. 5-8). On June 16, 2009, Arden Nygaard obtained a No Contact Order against Rhonda Hanneman (Tr.p. 5, ll 24-25). Rhonda Hanneman then filed for a domestic violence protection order against Arden Nygaard (Tr.p. 5. Ll. 20-23). Rhonda Hanneman was charged with Aggravated Assault. (Tr.p. 7, ll. 6-8).
5. On July 9, 2009, Rhonda Hanneman filed a Petition for Domestic Violence Protection Order against Arden Nygaard for an incident on June 9, 2009. On July 23, 2009, Rhonda Hanneman failed to appear and prosecute the action. The action was dismissed. (Tr.p.6, ll. 2-8).
6. On August 7, 2009, Rhonda Hanneman once again sought a protection order based upon the same June 9, 2009, incident. A hearing was held on September 9, 2009, before the Honorable Gail Hagerty. Rhonda Hanneman presented no witnesses.
7. Arden Nygaard testified that he had, on June 9, 2009, called Rhonda Hanneman to arrange to see his children. (Tr.p. 13, ll. 17-21). She took over an hour to bring the children to the park. (Tr.p. 13, ll. 22-23). Rhonda Hanneman was angry and upset when she arrived. She asked
Arden Nygaard if she could borrow some money. When he refused, she commenced yelling and screaming. Arden Nygaard and his mother, Sonia Nygaard left the park. (Tr.p. 14, ll. 1-3). Arden Nygaard refuted all of Rhonda Hanneman's earlier allegations of violence. (Tr.p. 15, ll 1-25).
8. Arden Nygaard's mother, Sonia Nygaard, testified that she was personally present during the incident in the park. She witnessed no violence or threats of violence. (Tr.p. 20, ll. 16-25; p. 21, ll. 1-3).
9. Melissa Fuher, a friend of Nygaard, testified that she was personally present during the alleged incident at Cash Wise Foods. She failed to witness any violence or threats of violence.
10. STATEMENT OF PROCEEDINGS:
11. On June 16, 2009, Arden Nygaard obtained a No Contact Order against Rhonda Hanneman.
12. On July 9, 2009, Rhonda Hanneman filed a petition for domestic violence protection order in Burleigh County Civil No. 08-09-R-0385. Due to her failure to appear and prosecute her claim on July 23, 2009, the matter was dismissed.
13. On August 7, 2009, Rhonda Hanneman filed another petition for protection order, based upon the same incident allegedly occurring on June 15, 2009, On August 17, 2009, Arden Nygaard filed a Motion to Dismiss the pending petition for protection order, based upon the doctrine of res judicata. On September 9, 2009, the Burleigh County District Court, the Honorable Gail Hagerty, presiding, issued a Domestic Violence Protection Order against Nygaard.
14. On September 24, 2009, Nygaard filed a Notice of Appeal to the North Dakota Supreme Court.
15. LAW AND ARGUMENT:
16. The Petition for Domestic Violence Protection Order was not Supported by Sufficient Evidence.
17. A party seeking a protection order must prove actual or imminent domestic violence by a preponderance of the evidence. Ficklin v. Ficklin, 2006 ND 40, 710 N.W.2d 387, 390. A district court's finding of domestic violence is a finding of fact that will not be overturned unless it is clearly erroneous. Frisk v. Frisk, 2005 ND 154, ¶ 6, 703 N.W.2d 341. 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, on the entire record, we are left with a definite and firm conviction a mistake has been made. Lovcik v. Ellingson, 1997 ND 201, ¶ 10, 569 N.W.2d 697. "The question whether the trial court has misinterpreted the domestic violence statute is a question of law that is fully reviewable on appeal." Lawrence v. Delkamp, 2000 ND 214, ¶ 7, 620 N.W.2d 151 (citing Ryan v. Fleming, 533 N.W.2d 920, 923 (N.D. 1995)).
18. A domestic violence protection order is a civil action primarily for injunctive relief. Lovcik, 1997 ND 201, ¶ 11, 569 N.W.2d 697. The party seeking the protective order must prove actual or imminent domestic violence by a preponderance of the evidence. Id. Past abusive behavior is a relevant factor to consider in determining whether domestic violence is actual or imminent. Id. at ¶16. The context and history of the relationship between the parties is also a relevant factor to consider. Peters-Riemers v. Riemers, 2001 ND 62, ¶ 8, 624 N.W.2d 83 (citing Cesare v. Cesare, 154 N.J. 394, 713 A.2d 390, 395 (1998)).
19. Before a court may enter a protection order, there must be "a showing of actual or imminent domestic violence." N.D.C.C. § 14-07.1-02(4). "Domestic violence" is statutorily defined under N.D.C.C. § 14-07.1-01(2), as including physical harm, bodily injury, sexual activity compelled by physical force, assault, or the influction or fear of imminent physical harm, bodily injury, sexual activity compelled by physical force, or assault, not committed in self-defense, on the complaining family or household members.
20. When the type of domestic violence justifying a domestic violence protection order is based upon fear, the harm feared by the petitioner must be "actual or imminent." N.D.C.C. § 14-07.1-02(4).
21. The North Dakota Supreme Court construed "imminent" to as meaning "[n]ear at hand; mediate rather than immediate; close rather than touching; impending; on the point of happening; threatening; menacing; perilous." Steckler v. Steckler, 492 N.W.2d 76, 80 (N.D. 1992)(citing State v. Kurle, 390 N.W.2d 48, 49 (N.D. 1986)). "Actual" has been defined as "[r]eal; substantial; existing presently in fact; having a valid objective existence as opposed to that which is merely theoretical or possible." Steckler, 492 N.W.2d at 81 (citing Black's Law Dictionary 34 (6th ed. (1990)).
22. The court relied solely upon the affidavit of Rhonda Hanneman relayed a story of an incident on June 15, 2009. She also related alleged past
incidents that do not support or show immediacy.
23. The court made no findings with respect to the imminent nature of a threat of physical harm. The court made no finding about a history of physical harm or bodily injury. The court's findings rest solely upon a perceived possibility a "danger" or a "credible threat" of domestic violence rather than a reasonable fear of actual or imminent harm as required by statute.
24. The only finding by the court was "Respondent has assaulted the Petitioner and engaged in threatening behavior." This "finding" does not support any imminent harm or bodily injury. There is no finding that the "assault" took place at any time relevant to the petition.
25. The issue of preponderance of the evidence also is raised. In this case, Rhonda Hanneman made allegations as to specific dates. She had no supporting affidavits. Arden Nygaard, his mother, and his friends' wife all testified personally that Arden Nygaard had never assaulted Rhonda Hanneman (Tr.p. 22, ll. 2-20; p.20, ll. 16-25, p. 21, ll. 1-3). It is hard to comprehend how one person's version of events is more credible than the completely opposite versions by three people.
26. Arden Nygaard is aware that the trial court assesses the credibility of witnesses. However, without an explanation by the Court as to why Rhonda Hanneman's version was more believable than the other witnesses version, this Court cannot assess the basis for her finding of credibility. The finding of fact of domestic violence was clearly erroneous.
27. It was not supported by any evidence. In addition, on the record, this
Court can be left with the definite firm conviction that a mistake was made.
28. Arden Nygaard requests that the Court reverse the decision granting the issuance of the protective order.
29. The trial court erred when it refused to dismiss the petition for domestic violence protection order.
30. On July 9, 2009, Rhonda Hanneman was issued a temporary domestic violence protection order in a separate proceeding. (Burleigh County Civil Case No. 08-09-R-385). The temporary order was based upon the same allegations as were alleged in the case now on appeal. A hearing on whether to issue a permanent protection order was scheduled for July 23, 2009. Rhonda Hanneman. failed to appear at the hearing. The judicial referee assigned to the case dismissed the matter.
31. On August 7, 2009, Rhonda Hanneman filed the present case and obtained another interim protection order, and, following the hearing on September 9, 2009, obtained a permanent protection order.
32. Res judicata, or claim preclusion, is the doctrine that prohibits the re-litigation of claims or issues that were raised or could have been raised in a prior action between the same parties, and which were resolved by final judgment in a court of competent jurisdiction. Peter-Riemers v. Riemers, 2004 ND 153, 684 N.W.2d 619; Hofsomer v. Hofsomer Excavating, Inc., 488 N.W.2d 480 (N.D. 1992).
33. Rule 41(b), North Dakota Rules of Criminal Procedure provides (b)
Involuntary dismissal Effect thereof. For failure of the plaintiff to prosecute or to comply with these rules or any order of court, a defendant may move for dismissal of an action or of any claim against the defendant. Unless the court in its order for dismissal otherwise specifies, a dismissal under this subdivision and any dismissal not provided for in this rule, other than a dismissal for lack of jurisdiction, or for failure to join a party under Rule 19, operates as an adjudication upon the merits.
34. On July 23, 2009, Rhonda Hanneman failed to appear and prosecute her claim of domestic violence. The action was dismissed. Since the judgment of dismissal does not provide otherwise, the dismissal of her claim in Civil No. 08-09-R-385 was an adjudication on the merits. The subsequent filing in August 9, 2009, was an improper filing. Res judicata prohibited her from seeking a re-litigation of the issue of domestic violence. The Motion to Dismiss should have been granted. It was clearly erroneous for the court to not grant the motion. (Tr.p. 2, ll. 5-8). See also Ternes v. Knispel, 374 N.W.2d 879 (N.D. 1985).
36. The Petition for Domestic Violence Protection Order was not Supported by Sufficient Evidence.
37. The trial court erred when it refused to dismiss the petition for domestic violence protection order.
38. The Domestic Violence Protection Order should be dismissed.
|Dated this 7th day of December, 2009.|
|/s/ Kent M. Morrow|
|Kent M. Morrow ID#03503|
|411 N. 4th Street #6|
|Bismarck, ND 58501|