George v. George, 20140063.
| Decision Date | 18 December 2014 |
| Docket Number | No. 20140063.,20140063. |
| Citation | 856 N.W.2d 769 |
| Court | North Dakota Supreme Court |
| Parties | Tina M. GEORGE, Petitioner and Appellant v. Jess J. GEORGE, Respondent and Appellee. |
Gregory I. Runge (on brief), Bismarck, N.D., for petitioner and appellant.
Suzanne M. Schweigert (on brief), Bismarck, N.D., for respondent and appellee.
Mikayla Jablonski Jahner and James Fitzsimmons, Bismarck, N.D., for amicus curiae North Dakota Council On Abused Women's Services.
[¶ 1] Tina George appeals from a district court order dismissing her petition for a disorderly conduct restraining order against her ex-husband, Jess George. Because the district court's findings are unclear and the law may have been misapplied in determining whether sufficient grounds existed to justify the issuance of a disorderly conduct restraining order, we reverse and remand to the district court.
[¶ 2] On January 17, 2014, Tina George petitioned the district court for a disorderly conduct restraining order against her ex-husband, alleging he had contacted her repeatedly following the parties' separation and subsequent divorce in an attempt to reconcile their relationship. Specifically, she claimed he committed various acts of disorderly conduct by driving past her residence on numerous occasions, sending her ten dozen flowers to her place of employment on their anniversary, following her from a family gathering, and accessing her voice mail messages. She also claimed that several months earlier she had tried to obtain a disorderly conduct restraining order against him, but that petition was dismissed. The district court issued a temporary restraining order against Jess George.
[¶ 3] At a February 2014 hearing, Tina George testified that although she asked her ex-husband to stop contacting her, he persisted in trying to talk with her about reconciling their relationship. She testified that after she requested he leave her alone, he continued to drive by her residence, approach her at her place of employment and in public, and send her numerous text messages.
[¶ 4] She also testified about three specific instances when he allegedly committed acts of disorderly conduct. She testified the first occurred on June 7, 2013, the parties' tenth wedding anniversary, when he sent her ten dozen roses while she was at work, despite having been told that she no longer wanted to remain in contact with him.
[¶ 5] She testified the second incident occurred in December 2013 when Jess George followed her after she had left a family holiday gathering very upset. She testified that she noticed he was following her on the interstate as she drove back to Bismarck and that she became frightened as a result and attempted to elude him by driving through a nearby neighborhood before stopping to file a police report.
[¶ 6] She testified the third incident occurred in January 2014 when Jess George confronted her about a voice mail message allegedly left on her cell phone by another man. She testified he was able to gain access to her voice mail messages because he knew her password and he became upset when he discovered another man had left a voice mail message for her.
[¶ 7] Before the hearing, Jess George submitted two affidavits in which he and the parties' eldest son contested Tina George's allegations. In his affidavit, Jess George alleged she had been dishonest about the facts presented in her petition, and he responded to her specific allegations. Jess George alleged that when he sent the ten dozen roses to her, he had been getting “mixed signals” and believed there was a chance of reconciling the relationship. In regard to the December 2013 incident, he claimed that after arriving at the family gathering, to which they both had been invited, and seeing her leave visibly upset, he chose to follow her in an attempt to discuss what had transpired. He also alleged that he did not tamper with Tina George's cell phone to access her voice mail messages; rather, their youngest child called her phone and entered her password to gain access to the voice mail message after he had expressed concerns about inappropriate text messages and pictures he had seen on her phone. Although Jess George admits he listened to the message, he insists he did so only because he was concerned about what their child had heard in the message.
[¶ 8] After hearing Tina George's testimony and having the opportunity to observe her demeanor, without allowing cross-examination or testimony from Jess George, the district court dismissed the petition for a disorderly conduct restraining order against Jess George, concluding she had failed to present sufficient evidence to justify the issuance of a restraining order. Although the district court said Jess George's behavior was “ill conceived,” it found his behavior did not rise to the level of disorderly conduct. Tina George appealed.
[¶ 9] The district court had jurisdiction under N.D. Const. art. VI, § 8, and N.D.C.C. §§ 12.1–31.2–01(2) and 27–05–06. Tina George timely appealed under N.D.R.App.P. 4(a). This Court has jurisdiction under N.D. Const. art. VI, §§ 2 and 6, and N.D.C.C. §§ 28–27–01 and 28–27–02.
[¶ 10] Tina George argues the district court abused its discretion in refusing to grant a disorderly conduct restraining order against Jess George.
[¶ 11] The language of N.D.C.C. § 12.1–31.2–01 relevant to this appeal provides:
(Emphasis added.) Here the use of the word “may” designates to the district court a permissive or non-mandatory authority to grant the restraining order if it finds reasonable grounds to believe the respondent has engaged in disorderly conduct. See City of Devils Lake v. Corrigan, 1999 ND 16, ¶ 13, 589 N.W.2d 579 (); Legislative Council, North Dakota Legislative Drafting
91 (2013) (distinguishes the mandatory nature of “shall” and the discretionary nature of “may”).
[¶ 12] Before a district court may grant a restraining order, “[t]he petitioner's case must be proven in a full hearing before the court through testimony, rather than affidavits alone, with an opportunity for cross-examination.” Hanisch v. Kroshus, 2013 ND 37, ¶ 11, 827 N.W.2d 528 (citing Gonzalez v. Witzke, 2012 ND 60, ¶ 18, 813 N.W.2d 592 ). “It is insufficient to show the person's actions are unwanted; rather, the petitioner must show specific unwanted acts that are intended to affect the safety, security, or privacy of another person.” Cusey v. Nagel, 2005 ND 84, ¶ 7, 695 N.W.2d 697. “All that is required under the statute are ‘reasonable grounds to believe that the respondent has engaged in disorderly conduct.’ ” Wetzel v. Schlenvogt, 2005 ND 190, ¶ 19, 705 N.W.2d 836 (citing N.D.C.C. § 12.1–31.2–01(5)(d) ). The term “reasonable grounds” is synonymous with “probable cause.” Tibor v. Lund, 1999 ND 176, ¶ 7, 599 N.W.2d 301. “Reasonable grounds exist ‘when facts and circumstances presented to the judge are sufficient to warrant a person of reasonable caution to believe that acts constituting the offense of disorderly conduct have been committed.’ ” Cusey, at ¶ 6 (quoting Svedberg v. Stamness, 525 N.W.2d 678, 682 (N.D.1994) ).
[¶ 13] “A district court has discretion to grant a disorderly conduct restraining order and to conduct a hearing on a petition for an order.” Gonzalez v. Witzke, 2012 ND 60, ¶ 8, 813 N.W.2d 592 (citing Wetzel v. Schlenvogt, 2005 ND 190, ¶ 22, 705 N.W.2d 836 ). We will not reverse a district court's decision on whether or not to grant a restraining order or conduct a hearing unless there is an abuse of discretion. Rebel v. Rebel, 2013 ND 164, ¶ 13, 837 N.W.2d 351. A district court abuses its discretion when “it acts in an arbitrary, unreasonable, or unconscionable manner, when it misinterprets or misapplies the law, or when its decision is not the product of a rational mental process leading to a reasoned determination.” Hanisch v. Kroshus, 2013 ND 37, ¶ 9, 827...
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