Gonzalez v. Witzke, 20110221.

• Citation: 813 N.W.2d 592,2012 ND 60
• Decision Date: 10 April 2012
• Docket Number: No. 20110221.,20110221.
• Parties: Ania Diaz GONZALEZ, a/k/a Ania Diaz Gonzales, Petitioner and Appellee, v. John WITZKE, Respondent and Appellant.
• Court: North Dakota Supreme Court

813 N.W.2d 592

2012 ND 60

Ania Diaz GONZALEZ, a/k/a Ania Diaz Gonzales, Petitioner and Appellee,

v.John WITZKE, Respondent and Appellant.

No. 20110221.

Supreme Court of North Dakota.

March 15, 2012.

Rehearing Denied April 10, 2012.

Ania Diaz Gonzalez, self-represented (on brief), Bismarck, N.D., petitioner and appellee.

John F. Witzke, self-represented (on brief), Bismarck, N.D., respondent and appellant.

SANDSTROM, Justice.

[¶ 1] John Witzke appeals from the district court's order granting a petition by Ania Gonzalez for a two-year disorderly conduct restraining order against him. We affirm, concluding Gonzalez presented sufficient evidence to support the restraining order and the district court did not abuse its discretion in granting the order.

I

[¶ 2] Witzke and Gonzalez are neighbors with a long acrimonious history, which has resulted in frequent litigation. See, e.g., State v. Witzke, 2009 ND 169, 776 N.W.2d 232;Gonzales v. Witzke, 2007 ND 34, 729 N.W.2d 334;Witzke v. Gonzales, 2007 ND 191, 742 N.W.2d 840;Witzke v. Gonzales, 2006 ND 213, 722 N.W.2d 374.

[¶ 3] On June 23, 2011, Gonzalez petitioned the district court for a disorderly conduct restraining order against Witzke, alleging that he harassed her by using a video camera to record her, that he called her a “troll” and a “perjurer” during a confrontation on June 19, 2011, and that she feared for her and her family's safety. In her petition, Gonzalez also stated she previously had obtained a disorderly conduct restraining order against Witzke in 2006, and in 2009 a jury found him guilty of violating the order. See Gonzales v. Witzke, 2007 ND 34, ¶ 1, 729 N.W.2d 334;State v. Witzke, 2009 ND 169, ¶¶ 1–2, 776 N.W.2d 232. On June 23, 2011, the district court granted Gonzalez a temporary disorderly conduct restraining order against Witzke, and an officer of the Burleigh County Sheriff's Department served him with a copy of the temporary order that day.

[¶ 4] On June 30, 2011, the district court held a hearing on the petition. Gonzalez testified that on June 19, 2011, she trimmed some of Witzke's tree branches that hung over her fence, separating the parties' properties, to prevent damage to the fence. She also testified he used a video camera to record her actions, and he called her a “troll” and a “perjurer.” She testified she instructed her mother to get a tape recorder, and Gonzalez recorded Witzke calling her a “troll” and a “perjurer.” She played the tape for the court at the hearing. She further testified Witzke's actions made her feel harassed and fearful of him. Witzke testified he did not call Gonzalez a “troll” or a “perjurer,” and his neighbor, who was outside during the confrontation, testified he did not hear Witzke call Gonzalez a “troll” or a “perjurer.”

[¶ 5] The district court granted a disorderly conduct restraining order against Witzke for two years, concluding that Witzke had called Gonzalez a “troll” and a “perjurer” and that he had used a video camera to record her. Under the restraining order, the district court prohibited Witzke from: 1) having any physical contact with or coming within fifty feet of Gonzalez; 2) calling, writing, or having messages delivered to her, except through an attorney; 3) entering her premises; 4) taking or damaging any of her property; or 5) committing any disorderly conduct directed at her.

[¶ 6] 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. Witzke 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.

II

[¶ 7] Witzke argues the district court abused its power in granting Gonzalez a temporary disorderly conduct restraining order against him and abused its discretion in granting her a two-year disorderly conduct restraining order against him. He also argues Gonzalez lied to a police officer and committed perjury at the hearing.

[¶ 8] A district court has discretion to grant a disorderly conduct restraining order and to conduct a hearing on a petition for an order. Wetzel v. Schlenvogt, 2005 ND 190, ¶ 22, 705 N.W.2d 836. We will not reverse a district court's decision to grant a restraining order or to conduct a hearing unless the court abused its discretion. Id. 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.” State v. Blunt, 2011 ND 127, ¶ 10, 799 N.W.2d 363.

A

[¶ 9] Witzke argues the district court abused its power in granting Gonzalez a temporary disorderly conduct restraining order against him on June 23, 2011.

[¶ 10] “ ‘Disorderly conduct’ means intrusive or unwanted acts, words, or gestures that are intended to adversely affect the safety, security, or privacy of another person. Disorderly conduct does not include constitutionally protected activity.” N.D.C.C. § 12.1–31.2–01(1). A district court may grant a temporary disorderly conduct restraining order “without giving notice to the respondent” and “pending a full hearing” if the petitioner “alleges reasonable grounds to believe that an individual has engaged in disorderly conduct.” N.D.C.C. § 12.1–31.2–01(4). “The term ‘reasonable grounds' is synonymous with ‘probable cause.’ ” Cusey v. Nagel, 2005 ND 84, ¶ 6, 695 N.W.2d 697;Wetzel, 2005 ND 190, ¶ 17, 705 N.W.2d 836. Reasonable grounds exist for issuing a restraining order “when the facts and circumstances presented to the judge are sufficient to warrant a person of reasonable caution to believe that acts constituting disorderly conduct have been committed.” Wetzel, at ¶ 17 (quoting Wishnatsky v. Huey, 1997 ND 35, ¶ 14, 560 N.W.2d 878).

[¶ 11] Under N.D.C.C. § 12.1–31.2–01(3), in order for a petitioner to obtain a temporary disorderly conduct restraining order, he or she must complete a petition for relief and “allege facts sufficient to show the name of the alleged victim, the name of the individual engaging in the disorderly conduct, and that the individual engaged in disorderly conduct.” In addition, a petitioner must provide in a sworn affidavit “the specific facts and circumstances supporting the relief sought.” Id.

[¶ 12] In her sworn petition, Gonzalez alleged facts that a court could find sufficient to show Witzke engaged in disorderly conduct against her. Specifically, she alleged Witzke recorded her with a video camera while she trimmed some of Witzke's tree branches that hung over her fence. She also alleged he called her a “troll” and a “perjurer,” and she felt harassed by and fearful of him. See Skadberg v. Skadberg, 2002 ND 97, ¶¶ 8, 10, 644 N.W.2d 873 (A “person of reasonable caution could believe acts constituting disorderly conduct had been committed” when the petitioner testified to receiving telephone calls from the respondent using “obscene language” in an “angry” tone). She further alleged she previously had been granted a disorderly conduct restraining order against Witzke in 2006, which the State charged him with violating in 2009. See State v. Witzke, 2009 ND 169, 776 N.W.2d 232.

[¶ 13] A person of reasonable caution could believe that Witzke intended his oral statements and his video recording of Gonzalez to affect her safety, security, or privacy. See Skadberg, 2002 ND 97, ¶¶ 8, 10, 644 N.W.2d 873. As a result, Gonzalez alleged reasonable grounds for the district court to believe Witzke engaged in disorderly conduct under N.D.C.C. § 12.1–31.2–01(4). See Wetzel, 2005 ND 190, ¶ 17, 705 N.W.2d 836. Because Gonzalez met the statutory requirements under N.D.C.C. § 12.1–31.2–01(3) in seeking a petition for relief and because N.D.C.C. § 12.1–31.2–01(4) authorizes a district court to issue a temporary disorderly conduct restraining order without first giving notice to the respondent, we conclude the district court did not abuse its discretion in granting Gonzalez a temporary disorderly conduct restraining order against Witzke.

B

[¶ 14] Witzke argues the district court abused its discretion in granting Gonzalez a two-year restraining order against him.

[¶ 15] A district court may grant a disorderly conduct restraining order if a petitioner complies with the procedural requirements of N.D.C.C. § 12.1–31.2–01(5), and if, after a hearing, the court finds “there are reasonable grounds to believe that the respondent has engaged in disorderly conduct.” N.D.C.C. § 12.1–31.2–01(5)(d). The procedural requirements under N.D.C.C. § 12.1–31.2–01(5) include:

The court may grant a disorderly conduct restraining order ordering the respondent to cease or avoid the disorderly conduct or to have no contact with the applicant if:

a. A person files a petition under subsection 3;

b. The sheriff serves the respondent with a copy of the temporary restraining order issued under subsection 4 and with notice of the time and place of the hearing;

c. The court sets a hearing for not later than fourteen days after issuance of the temporary restraining order unless the time period is extended upon written consent of the parties, or upon a showing that the respondent has not been served with a copy of the temporary restraining order despite the exercise of due diligence; and

d. The court finds after the hearing that there are reasonable grounds to believe that the respondent has engaged in disorderly conduct. If a person claims to have been engaged in a constitutionally protected activity, the court shall determine the validity of the claim as a matter of law and, if found valid, shall exclude evidence of the activity.

[¶ 16] We conclude the procedural requirements of that statute were met because Gonzalez “file[d] a petition under subsection 3” on June 23, 2011, a sheriff's deputy served Witzke that day “with a copy of the temporary restraining order issued under subsection 4 and with notice of the time and place of the...