Meier v. Said

• Decision Date: 01 February 2007
• Docket Number: No. 20060248.,20060248.
• Citation: 726 N.W.2d 852,2007 ND 18
• Parties: Breanna J. MEIER, Petitioner and Appellee v. Mohamed H. SAID, Respondent and Appellant.
• Court: North Dakota Supreme Court

726 N.W.2d 852

2007 ND 18

Breanna J. MEIER, Petitioner and Appellee v. Mohamed H. SAID, Respondent and Appellant.

No. 20060248.

Supreme Court of North Dakota.

February 1, 2007.

Breanna J. Meier, petitioner and appellee. No appearance.

Jason W. McLean, Gjesdahl & Associates, Fargo, ND, for respondent and appellant.

VANDE WALLE, Chief Justice.

[¶ 1] Mohamed H. Said appealed from a disorderly conduct restraining order directing him to have no contact with Breanna Meier for two years. Said argues that the district court erroneously allowed Meier to testify about allegations not contained in the petition for relief, and that the district court abused its discretion because there were no reasonable grounds to support the issuance of the restraining order. We affirm.

I

[¶ 2] Said and Meier had a brief relationship which began in late 2005. In December 2005, Meier moved from North Dakota to California to live with Said. In early January 2006, Meier discovered that she was pregnant and due to give birth in September. After Meier told Said about her pregnancy, the parties had a disagreement about whether she should have the baby. According to Meier, Said tried to force her to have an abortion, but she refused. Said disputed this allegation. Said admitted that he researched emergency contraception on the Internet shortly after finding out about the pregnancy, but denied that he ever pressured Meier to have an abortion. Said claimed that Meier initially agreed to have an abortion but then changed her mind, and he gave up the idea at that point. After their disagreement about terminating the pregnancy, Meier left California and returned to North Dakota for about three weeks.

[¶ 3] While Meier was in North Dakota, the parties continued communicating with each other. During their conversations, Said told Meier that he had changed his mind about the pregnancy, and that he wanted them to have the baby and get married. On February 4, 2006, Meier returned to California to reconcile with Said. They married two days later on February 6, 2006. After about two weeks of marriage, Meier ended the relationship and returned to North Dakota permanently.

[¶ 4] At the time the district court considered this case, Said and Meier were involved in other legal actions as a result of their separation. An annulment proceeding was pending in California. Also, in early August 2006, Said filed an action in Cass County, North Dakota, seeking a paternity test and sole physical custody of their unborn child. On August 9, 2006, Said's counsel mailed a letter to Meier, along with service of the summons and complaint, asserting that Said had the right to participate in the naming of the child and to be present at the birth. The letter also demanded information about Meier's due date, her prenatal care plan, the intended location of the birth, and any upcoming prenatal appointments concerning the child. In a motion filed with the district court in late August, Said renewed his demands to be present at the hospital for the birth and to participate with Meier in naming the child.

[¶ 5] On September 1, 2006, Meier filed a petition for a disorderly conduct restraining order against Said. In her accompanying affidavit, Meier alleged that Said tried to force her to have an abortion when he first learned of her pregnancy, that he put pieces of crushed up abortion pills in a bowl of soup he served to her, and that he raped her during their marriage. Meier also claimed that because of this abusive past, Said's demand to be present at the birth of their child caused her to experience stress, fear, and anxiety. Based on Meier's petition, the district court issued a temporary disorderly conduct restraining order against Said. The district court also scheduled a hearing on September 14, 2006, to determine whether the temporary order should be extended.

[¶ 6] About ten minutes before the hearing, Meier served a supplemental affidavit upon the district court and opposing counsel. Said objected to the admission of the affidavit, arguing that it had not been timely filed and that it violated his right to due process. The district court refused to accept the supplemental affidavit, but ruled that Meier could testify about its contents as long as her testimony involved the allegations contained in her petition and original affidavit.

[¶ 7] At the hearing, the district court heard testimony from both Meier and Said. Meier testified that she feared for her safety and that she felt threatened because Said wanted to be present during the child's birth. She recounted specific incidents that had occurred during the time she lived with Said in California. Meier testified that Said raped her multiple times during their two-week marriage. Specifically, she stated that after their marriage ceremony on February 6, 2006, Said told her that they had to have sexual relations to consummate their marriage, and when she refused, he forced her to have sex. Meier also recounted that from February 7 to February 18, she would wake up in the middle of the night and find Said removing her underwear and forcing himself on her. According to Meier, she was concerned about having a miscarriage because she experienced some bleeding after the assaults.

[¶ 8] Furthermore, Meier testified about three separate incidents in which she vomited after eating food served to her by Said. As to the first incident, Meier stated that on the evening of February 6, 2006, she found a piece of a pill in the bottom of a bowl of tomato basil soup that Said had purchased and served her. She described the incident in detail, including that Said had turned off the lights and lit candles before serving her the soup. According to Meier, the soup initially tasted normal, but near the bottom of the bowl it tasted like aspirin. Meier stated that she became very ill and vomited after eating the soup. Additionally, Meier recounted that the next day, while using their home computer, she discovered that Said had recently run a Google search about how to buy abortion pills online without a prescription. She specifically remembered that his research included a type of pill called Mifepristone, which was described on the web site as a pill used for early first-term abortions.

[¶ 9] In addition to the soup incident, Meier testified that she became violently ill and vomited two other times after eating food Said had purchased and served her at home. According to Meier, Said purchased her an egg-and-cheese bagel sandwich from a particular restaurant on both occasions. Meier stated that prior to these incidents, she had recently eaten the exact same meal at the restaurant with no ill effects. Additionally, she explained that she never experienced vomiting with her pregnancy other than these three incidents involving food served by Said.

[¶ 10] Said also submitted an affidavit and testified at the hearing, and he denied all of Meier's allegations. Said claimed that Meier was trying to put a black spot on his immigration record, since he is in the United States as a guest worker. He also contended that Meier petitioned for a restraining order to retaliate against him for filing a custody action. Said testified that he did not intend to contact Meier in the future and that he would come to North Dakota only for court proceedings and to see his child.

[¶ 11] The parties agreed they had limited contact after Meier left California. According to Meier, Said contacted her on MSN Messenger and asked her to come home in early March 2006. The last direct contact between the parties occurred on March 30, 2006, when Meier sent Said an e-mail. In the e-mail, Meier asked Said to give up his parental rights so they could go their separate ways. She also discussed their rocky relationship, stating that she would have regretted having an abortion like Said wanted and that she could not handle him taking out his anger on her anymore.

[¶ 12] After considering the evidence, the district court issued a disorderly conduct restraining order prohibiting Said from any contact with Meier for two years. The district court found that Meier testified about specific facts and instances as required by law and that "[r]ape and attempts at giving Meier drugs, as well as emotional abuse" constituted disorderly conduct.

II

[¶ 13] Said argues the district court erroneously allowed Meier to testify about new allegations which were not contained in her petition and original affidavit.

[¶ 14] Under N.D.C.C. § 12.1-31.2-01(2), a person who has been the victim of disorderly conduct may petition for a disorderly conduct restraining order. Section 12.1-31.2-01(3) sets forth certain requirements for the petition:

A petition for relief must 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. An affidavit made under oath stating the specific facts and circumstances supporting the relief sought must accompany the petition.

The district court may issue a temporary restraining order based upon the allegations in the petition. N.D.C.C. § 12.1-31.2-01(4). However, the district court must hold a full hearing before it may grant a long-term disorderly conduct restraining order, which may not exceed a period of two years. N.D.C.C. § 12.1-31.2-01(5) to (6).

[¶ 15] We have held that due process requirements must be met throughout the restraining order proceedings. Wetzel v. Schlenvogt, 2005 ND 190, ¶ 23, 705 N.W.2d 836. At the hearing, the petitioner must prove the allegations in the petition through sworn testimony, rather than by affidavits alone, with an opportunity for cross-examination. Id. Furthermore, the petitioner may not raise new allegations through her testimony without notice to the respondent. Cusey v. Nagel, 2005 ND 84, ¶ 15, 695 N.W.2d 697; Gullickson v. Kline, 2004 ND 76, ¶ 12, 678 N.W.2d 138. In order to comport with due...