Peters-Riemers v. Riemers, 20000145.

CourtUnited States State Supreme Court of North Dakota
Citation624 N.W.2d 83,2001 ND 62
Docket NumberNo. 20000145.,20000145.
PartiesJenese A. PETERS-RIEMERS, Plaintiff and Appellee, v. Roland C. RIEMERS, Defendant and Appellant.
Decision Date23 March 2001

Roland C. Riemers, Buxton, ND, defendant and appellant.

Michael A. Birrenkott and Michael L. Gjesdahl (argued) of Gjesdahl & Deitz, PLLP, Fargo, ND, for plaintiff and appellee.

Reid A. Brady, Assistant Attorney General, Bismarck, ND, for amicus curiae.

NEUMANN, Justice.

[¶ 1] Roland C. Riemers appeals a domestic violence protection order restraining him from contact with Jenese A. Peters Riemers. We affirm the protection order.


[¶ 2] On March 6, 2000, Peters-Riemers applied for domestic violence protection from Riemers. In her application, Peters-Riemers attested that she and Riemers had been involved in a verbal and physical confrontation on March 4, 2000. She packed a bag and told Riemers she was taking their two-year-old son with her to stay in a hotel. Riemers told her she could not take their son, and the parties began struggling. During the struggle, Peters-Riemers dialed 911, but Riemers held her from the telephone. They struggled until Riemers hit Peters-Riemers in the face, and she fell to the floor. Riemers went to another room, and Peters-Riemers picked up her bag and left the house. As she was leaving, a patrol car drove into the driveway. Peters-Riemers explained she had placed the 911 call. After showing the officers she needed medical attention, she drove herself to a hospital. Peters-Riemers' injuries included bone fractures, bruising, and swelling around her eye.

[¶ 3] The district court granted Peters-Riemers a temporary domestic violence protection order on the day of her application. A hearing was held on March 14, 2000, to determine whether to issue a permanent protection order. During the hearing, Riemers attempted to testify about alleged previous incidents of abuse by Peters-Riemers and about his state of mind at the time of the March 4, 2000, confrontation. Riemers also attempted to cross-examine Peters-Riemers regarding the alleged incidents of previous abuse. Peters-Riemers objected to both lines of inquiry based on relevance. The district court sustained Peters-Riemers' relevancy objections. After the hearing, the district court issued a one-year protection order against Riemers. Riemers appeals.


[¶ 4] Riemers first argues the district court abused its discretion and violated his due process rights and the due process rights of the parties' son by granting Peters-Riemers' protection order petition without allowing him to present certain testimony.


[¶ 5] Riemers argues the district court abused its discretion by ruling his testimony about alleged previous incidents of abuse by Peters-Riemers and about Riemers' state of mind was irrelevant in deciding whether to grant Peters-Riemers' petition for a domestic violence protection order under N.D.C.C. § 14-07.1-02.

[¶ 6] When asked why he feared for his personal safety at the time of the confrontation, Riemers began testifying about a previous incident involving him and Peters-Riemers. Peters Riemers objected based on relevance. The district court sustained the objection. Riemers' attorney told the court they had offered the testimony to show Riemers' state of mind as it pertained to self-defense. The district court reiterated the objection was sustained.

[¶ 7] Relevant evidence is evidence that reasonably and actually tends to prove or disprove any fact in issue. N.D.R.Ev. 401; Schaefer v. Souris River Telecom., 2000 ND 187, ¶ 10, 618 N.W.2d 175. We review a district court's admission or exclusion of evidence based on relevance grounds by applying an abuse of discretion standard. Schaefer, at ¶ 10. A district court abuses its discretion when it acts in an arbitrary, unreasonable, or unconscionable manner or when it misinterprets or misapplies the law. Mellum v. Mellum, 2000 ND 47, ¶ 21, 607 N.W.2d 580.

[¶ 8] "Domestic violence" is defined in N.D.C.C. § 14-07.1-01(2):

"Domestic violence" includes physical harm, bodily injury, sexual activity compelled by physical force, assault, or the infliction of 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. (Emphasis added).

Because acts committed in self-defense are statutorily excluded from the definition of domestic violence, testimony about previous incidents of abuse by Peters-Riemers and about Riemers' state of mind was clearly relevant because of its bearing on whether Riemers acted in self-defense. See Krank v. Krank, 529 N.W.2d 844, 850 n.2 (N.D.1995)

(noting "[s]elf defense would include, where supported by the facts, the battered spouse syndrome"); see also Lovcik v. Ellingson, 1997 ND 201, ¶ 16, 569 N.W.2d 697 ("Although past abusive behavior is not dispositive, it is relevant in determining whether domestic violence is actual or imminent."); Cesare v. Cesare, 154 N.J. 394, 713 A.2d 390, 395 (1998) ("Because a particular history can greatly affect the context of a domestic violence dispute, trial courts must weigh the entire relationship between the parties and ... can consider evidence of a defendant's prior abusive acts regardless of whether those acts have been the subject of a domestic violence adjudication.") Accordingly, the district court misapplied the law and abused its discretion in excluding this evidence.

[¶ 9] Under Rule 103(a), N.D.R.Ev., error may not be predicated upon the erroneous exclusion of evidence unless a substantial right of the party is affected. State v. Hart, 1997 ND 188, ¶ 21, 569 N.W.2d 451. See also N.D.R.Civ.P. 61 ("The court at every stage of the proceeding must disregard any error or defect in the proceeding which does not affect the substantial rights of the parties."). In Hart, the defendant argued the trial court abused its discretion in excluding evidence supporting his claim of self-defense. Id. at ¶ 18. Hart attempted to testify about a statement allegedly made by an unavailable witness, and the trial court ruled the proffered testimony was hearsay. Id. at ¶ 19. Hart offered the statement to show his state of mind. Id. at ¶ 20. Hart's self-defense evidence and evidence about his state of mind were admitted in other portions of his testimony. Id. at ¶ 21. Accordingly, we held the exclusion of Hart's testimony did not affect Hart's substantial rights and did not require reversal. Id. at ¶ 21. We reach the same conclusion here.

[¶ 10] Riemers was allowed to testify as to his state of mind:

Q At—during this altercation, did you—were you in fear for your personal safety at that point in time?
A Very much so.

When asked why he feared for his personal safety, the court sustained Peters-Riemers' relevancy objection. However, at another point in his testimony, Riemers testified as to alleged previous incidents of abuse by Peters-Riemers:

A At that point she attacked me—
Q In what manner?
A Her usual manner. Starting off with tearing off my shirt, ripping it to pieces—
Q Usual manner? You mean she's done this in the past?
A A number of occasions. She scratched up my chest and face, she would try to kick me in the testicles and the leg or hit me any place she could. And then—
Q And this was happening this evening—that evening in question?
A Yes, it was happening that evening.
Q She attempted to kick you in the testicles?
A Yes, you see—
Q Has she done that before?
A Yes. She's tried to rip them off at times.

Because Riemers was allowed to testify both about alleged previous incidents of abuse by Peters-Riemers and about his state of mind, the district court's error in excluding relevant evidence was not prejudicial and did not affect Riemers' substantial rights. Nonprejudicial mistakes by the district court constitute harmless error and are not grounds for reversal. Huesers v. Huesers, 1998 ND 54, ¶ 11, 574 N.W.2d 880.


[¶ 11] Riemers argues the district court violated his and the parties' son's due process rights by denying him the opportunity to cross-examine Peters-Riemers about alleged previous incidents of abuse by Peters-Riemers.

[¶ 12] In Sandbeck v. Rockwell, 524 N.W.2d 846, 848-49 (N.D.1994), a majority of this Court held that the scope of a hearing often depends on whether the procedure is an action or a special proceeding, and that N.D.C.C. § 14-07.1-02(1) makes it clear that a domestic violence proceeding is not a plenary action that requires a full-blown trial. Rather, the statute creates a special summary proceeding and directs a motion hearing noticed by order of the court. Sandbeck, 524 N.W.2d at 849.

[¶ 13] Under N.D.R.Civ.P. 43(e), for a motion "based on facts not appearing of record[,] the court may hear the matter on affidavits presented by the respective parties, but the court may direct the matter be heard wholly or partly on testimony or depositions." For the summary proceeding of a protection order, the trial court is thus authorized under the rules to hear the evidence on affidavits or partly on affidavits or, as in Sandbeck, partly on affidavits and partly by cross-examination of each affiant. 524 N.W.2d at 850.

[¶ 14] On March 6, 2000, Peters-Riemers filed a petition for protective relief and an affidavit supporting her petition. The district court heard the matter on Peters Riemers' affidavit on March 14, 2000. Riemers did not submit an opposing affidavit.1 At the hearing, the district court, exercising its discretion, allowed the cross-examination of Peters-Riemers as to the contents of her affidavit. Peters Riemers did not present direct testimony in addition to her affidavit testimony. During cross-examination, Riemers' attorney asked Peters-Riemers, "Ever hit [Riemers] in the past?" Peters-Riemers objected based on relevancy. The court sustained Peters-Riemers' relevancy objection.

[¶ 15] In the previous subsection, we concluded testimony...

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