Frisk v. Frisk, 20050391.

• Decision Date: 21 July 2006
• Docket Number: No. 20050391.,20050391.
• Citation: 719 N.W.2d 332,2006 ND 165
• Parties: Krista M. FRISK, Petitioner and Appellee v. Daniel J. FRISK, Respondent and Appellant.
• Court: North Dakota Supreme Court

Page 332

719 N.W.2d 332

2006 ND 165

Krista M. FRISK, Petitioner and Appellee v. Daniel J. FRISK, Respondent and Appellant.

No. 20050391.

Supreme Court of North Dakota.

July 21, 2006.

COPYRIGHT MATERIAL OMITTED

Carrie Lynn Francis (argued), Edward B. Reinhardt, Jr. (on brief), and James Patrick Fitzsimmons (appeared), Legal Services of N.D., Minot, N.D.; for petitioner and appellee.

Steven M. Light (argued) and Lorelle Ann Moeckel (appeared), Larivee & Light, Bank of the West Tower, Fargo, N.D., for respondent and appellant.

KAPSNER, Justice.

[¶ 1] Daniel Frisk appeals from an amended domestic violence protection order entered against him. We conclude the district court made sufficient findings of actual or imminent domestic violence to support the amended order, and we affirm.

I

[¶ 2] Daniel and Krista Frisk separated on May 9, 2004. Following the separation, Krista Frisk filed a petition for protective relief, and the district court issued a temporary domestic violence protection order. The parties submitted affidavits, and on June 3, 2004, an evidentiary hearing was held, but before the conclusion of the hearing the parties agreed to a continuation of the temporary protection order for a period of six months or until further order of the court. The agreement specifically stated there would be no findings on domestic violence.

[¶ 3] On November 10, 2004, Krista Frisk applied for an extension of the protection order. The parties submitted affidavits, and on December 15, 2004, an evidentiary hearing was held. The district court subsequently granted the extension for a period of two years. Daniel Frisk appealed the district court's order. On appeal, we reversed the protection order and remanded to the district court for consideration of whether the evidence supported a finding that Daniel Frisk poses an "actual or imminent" danger of domestic violence to Krista Frisk. Frisk v. Frisk, 2005 ND 154, ¶ 14, 703 N.W.2d 341.

[¶ 4] On remand, the district court held a hearing on October 15, 2005, to determine whether it needed new evidence to proceed or whether it could make a finding of domestic violence based upon the evidence already presented. The court concluded it could proceed using the previously presented evidence and found there was an actual or imminent danger of domestic violence. The court entered an amended protection order extending the stipulated order until December 15, 2006.

II

[¶ 5] "`Whether there is domestic violence sufficient to support the issuance of a protection order is a question of fact which will be overturned on appeal only if it is clearly erroneous. However, a trial court's decision to extend an existing protection order is reviewed under an abuse of discretion standard.'" Frisk, 2005 ND 154, ¶ 6, 703 N.W.2d 341 (quoting Gaab v. Ochsner, 2001 ND 195, ¶ 6, 636 N.W.2d 669).

III

[¶ 6] Daniel Frisk argues N.D.C.C. § 14-07.1-02, the statute governing issuance of domestic violence protection orders, only allows the court to "amend" an existing protection order, and he claims the meaning of the word "amend" does not include extend. He argues the district court erred in extending the stipulated protection order because the stipulated order expired before it was extended. He also claims a stipulated order cannot procedurally be extended beyond its agreed upon time limit, and Krista Frisk must apply for a new protection order relying on entirely new evidence.

A

[¶ 7] Section 14-07.1-02, N.D.C.C., sets out the procedure for issuing a domestic violence protection order. Section 14-07.1-02(6), N.D.C.C., states, "[t]he court may amend its order or agreement at any time upon subsequent petition filed by either party." Section 14-07.1-02, N.D.C.C., is a remedial statute "which we construe `liberally, with a view to effecting its objects and to promoting justice.'" Gaab, 2001 ND 195, ¶ 5, 636 N.W.2d 669 (quoting Lucke v. Lucke, 300 N.W.2d 231, 234 (N.D.1980)). The purpose of the statute is to protect victims of domestic violence from further harm. Gaab, at ¶ 5. In Gaab, we considered the language of the statute and its legislative history, and held that N.D.C.C. § 14-07.1-02 allows for the extension of a permanent domestic violence protection order without a finding of actual or imminent domestic violence, if there was a previous finding of actual or imminent domestic violence. Id.

[¶ 8] Although N.D.C.C. § 14-07.1-02 does not specifically state that a protection order may be extended, it does provide that the court's order or agreement may be amended at any time upon the request of either party. "Words used in any statute are to be understood in their ordinary sense, unless a contrary intention plainly appears, but any words explained in this code are to be understood as thus explained." N.D.C.C. § 1-02-02. When we interpret a statute, "`our duty is to ascertain the Legislature's intent, which initially must be sought from the statutory language itself, giving it its plain, ordinary, and commonly understood meaning.'" GO Comm. v. City of Minot, 2005 ND 136, ¶ 9, 701 N.W.2d 865 (quoting Larson v. Larson, 2005 ND 67, ¶ 8, 694 N.W.2d 13). The ordinary meaning of "amend" means to improve, change, correct, or revise. Black's Law Dictionary 81 (6th ed.1990). "Extend" has a variety of meanings, including "to expand, enlarge, prolong, lengthen, widen, carry or draw out further than the original limit." Black's Law Dictionary 583 (6th ed.1990). Construing N.D.C.C. § 14-07.1-02(6) liberally to effectuate its purpose, we interpret the word "amend" to include a change that extends the terms of a stipulated protection order. Our interpretation is consistent with Gaab and provides domestic violence victims with continued protection from further harm, and therefore effectuates the purpose of the statute.

B

[¶ 9] Daniel Frisk argues that even if the stipulated order could be extended, it was extended after it had expired and therefore could no longer be extended. He claims it is not enough for an individual to apply for an extension before the expiration of the protection order; instead the court must actually extend the protection order before the expiration. He urges this Court to look to Minnesota and Ohio law for guidance, citing Minn.Stat. § 518B.01, subd. 6a, and Ohio Rev.Code Ann. § 3113.31(E)(3)(c).

[¶ 10] Daniel Frisk's reliance on the Minnesota and Ohio statutes is misplaced. Subdivision 6a, Minn.Stat. § 518B.01, states, "[u]pon application, notice to all parties, and hearing, the court may extend the relief granted in an existing order for protection or, if a petitioner's order for protection is no longer in effect when an application for subsequent relief is made, grant a new order." The plain language of the statute allows for an extension of the original protection order if an application for extension is made before the order expires and requires a new order only if the original order is no longer in effect when an application for extension is made.

[¶ 11] The Ohio statute states, "[a]ny protection order issued or consent agreement approved pursuant to this section may be renewed in the same manner as the original order or agreement was issued or approved." Ohio Rev.Code Ann. § 3113.31(E)(3)(c). The statute does not state that a renewal must occur before an original order expires. Daniel Frisk cites Felton v. Felton, 1997 Ohio 302, 79 Ohio St.3d 34, 679 N.E.2d 672, in support of his claim, but his reliance on that case is also misplaced. The two issues before the court in Felton were whether a court may issue a domestic protection order when the parties agreed, as part of the divorce decree, to not harass each other; and the burden of proof for issuing a protection order. Id. at ¶ 1, 679 N.E.2d 672. Renewal of a protection order was mentioned only in passing, and was not an issue in the case. In listing the benefits of a protection order versus a harassment provision of a divorce decree, the court said, "the overwhelming benefits to the victim of domestic violence that the protection order offers far outweigh any concerns about the temporary nature of the protection order, which can be renewed at the end of the effective period." Id. at ¶ 4, 679 N.E.2d 672. The court's language does not support Daniel Frisk's claim; the court said the order may be renewed at the end of the effective period, not that it must be renewed before the end of the effective period.

[¶ 12] A logical extension of Daniel Frisk's argument would require petitioners to apply for an extension of a protection order as soon as the original protection order was issued to ensure the court would have sufficient time to amend the order. We construe statutes to avoid ludicrous results and idle acts, see County of Stutsman v. State Historical Soc'y, 371 N.W.2d 321 (N.D.1985), and we decline to construe N.D.C.C. § 14-07.1-02 to encourage that practice. Encouraging parties to apply for an extension as soon as the original order is issued fails to give the parties time to see if an extension is necessary. The purpose of the protection order is to protect domestic violence victims from further harm, and that purpose may be accomplished by giving the parties time to calm down and put some distance between them. The purpose of the statute is best promoted if a petitioner is only required to apply for an extension before the original order expires, and not to require the court to enter the amended order before the expiration.

[¶ 13] We conclude a protection order may be amended if the petitioner requests the amendment before the original protection order expires, whether or not the court actually enters the amended order before the expiration of the original order. In this case, Krista Frisk applied for an extension of the stipulated protection order a month before the order expired, and we conclude her application was timely.

C

[¶ 14] In the prior appeal, Daniel Frisk argued the stipulated order could not be extended...