Rebel v. Rebel
| Citation | 837 N.W.2d 351,2013 ND 164 |
| Decision Date | 22 October 2013 |
| Docket Number | Nos. 20130032,20130033.,s. 20130032 |
| Parties | Wendy REBEL, Petitioner and Appellee v. Jesse REBEL, Respondent and Appellant. Wendy Rebel, Petitioner and Appellee v. Brandi Rebel, Respondent and Appellant. |
| Court | United States State Supreme Court of North Dakota |
OPINION TEXT STARTS HERE
Mary E. Nordsven, Dickinson, N.D., for petitioner and appellee.
Justin D. Hager, Bismarck, N.D., for respondents and appellants.
[¶ 1] Jesse Rebel and Brandi Rebel (“Rebels”) appeal from district court orders granting Wendy Rebel two-year disorderly conduct restraining orders against them. We affirm, concluding the district court did not abuse its discretion in granting the disorderly conduct restraining orders against the Rebels under N.D.C.C. § 12.1–31.2–01.
[¶ 2] Wendy Rebel and Jesse Rebel were divorced in 2009 and have two minor children. In 2011, Jesse Rebel married Brandi Rebel.
[¶ 3] On April 26, 2012, Wendy Rebel petitioned the district court for disorderly conduct restraining orders against Jesse Rebel and Brandi Rebel. Wendy Rebel's petitions alleged, in part, an incident occurring on April 17, 2012, after a school program, in which Brandi Rebel purportedly used vulgar and abusive language toward Wendy Rebel. Her petitions also alleged a confrontation occurring on April 25, 2012, in which the Rebels approached Wendy Rebel in her car parked in front of the school, where she was picking up her son, and began shouting at her and calling her vulgar and abusive names. Wendy Rebel asserts the Rebels confronted her over alleged DNA evidence purportedly showing Jesse Rebel was not the father of their children. Wendy Rebel's petitions asserted that at the time she was frightened and called the police.
[¶ 4] On April 27, 2012, the district court issued a temporary disorderly conduct restraining order against each of the Rebels. A judicial referee held a hearing on the petitions and subsequently issued a two-year disorderly conduct restraining order in each case in July 2012. The Rebels requested the district court to review the judicial referee's findings and orders. On December 10, 2012, the district court conducted a full evidentiary hearing on Wendy Rebel's petitions. After the hearing, the court initially entered orders in December 2012, affirming the judicial referee's disorderly conduct restraining order in each case. In doing so, the court made its own findings of fact, in addition to adopting the findings of the judicial referee. The Rebels promptly objected to the district court's orders as improper under N.D. Sup. Ct. Admin. R. 13, § 11. The district court subsequently entered orders in January 2013, rejecting the judicial referee's findings, making its own findings of fact, and granting a two-year disorderly conduct restraining order in each case. The court did not specifically vacate its initial December 2012 orders. The Rebels appealed from the district court's December 2012 orders, affirming the judicial referee's disorderly conduct restraining orders, and from the court's January 2013 orders, granting disorderly conduct restraining orders.
[¶ 5] The district court's January 2013 orders, however, did not include the specific conditions of violations of the restraining orders. Therefore, after oral argument to this Court on June 5, 2013, we ordered the cases temporarily remanded to the district court for 14 days for the limited purposes of amending the January 2013 orders to include specific conditions of violation of the restraining orders. Because the court's amended orders entered in June 2013 on limited remand in each of the cases have designated the specific conditions of violation of the restraining orders, we turn to the merits of the appeal.
[¶ 6] The Rebels argue the district court erred in affirming the judicial referee's orders and making new findings in both cases. The Rebels apparently rely on this Court's decision in Benson v. Benson, 495 N.W.2d 72, 77 (N.D.1993), which predates the 2004 amendments to N.D. Sup. Ct. Admin. R. 13.
[¶ 7] In In re B.F., 2009 ND 53, ¶¶ 9–12, 764 N.W.2d 170, this Court discussed the evolution of the standard in North Dakota for reviewing a judicial referee's decision. Specifically, this Court noted the amendments to N.D. Sup. Ct. Admin. R. 13, § 11, that became effective on March 1, 2004. See In re B.F., at ¶ 11. Rule 13, § 11, N.D. Sup. Ct. Admin. R. provides:
(a) A review of the findings and order may be ordered at any time by a district court judge and must be ordered if a party files a written request for a review within seven days after service of the notice in Section 10(b). The request for review must state the reasons for the review. A party requesting review must give notice to all other parties. A party seeking to respond to a request for review must file their response within 14 days after service of notice of the request.
(b) The review by a district court judge must be a de novo review of the record. The district court may:
(1) adopt the referee's findings;
(2) remand to the referee for additional findings; or
(3) reject the referee's findings.
(c) If the district court judge rejects the referee's findings, the court shall issue its own findings of fact, with or without a hearing.
Further, N.D. Sup. Ct. Admin. R. 13, § 10(a), states: “The findings and order of the judicial referee have the effect of the findings and order of the district court until superseded by a written order of a district court judge.” Although the Rebels suggest, relying on prior law, the district court was to accept the referee's findings unless they were “clearly erroneous,” we observed that under our system of review, a district court judge does not act in a “true appellate capacity” in reviewing a judicial referee's decision under the de novo standard. See In re B.F., at ¶ 12.
[¶ 8] The Rebels argue that the district court did not follow the law in reviewing the judicial referee's findings. They assert there was a procedural error because the district court's initial order in each case affirmed the judicial referee's orders and “adopt[ed] the findings,” and the second order in each case granted the disorderly conduct restraining order and “reject[ed] the findings” of the judicial referee. They also note the district court failed to vacate the initial December 2012 orders before entering the January 2013 orders. The Rebels contend N.D. Sup. Ct. Admin. R. 13 was not followed in the December 2012 orders and was followed in the January 2013 orders, causing “procedural uncertainty.”
[¶ 9] Nonetheless, this Court has said that “[a]n amended order may alter a previous order or it may supersede the original order.” Hughes v. Powers, 453 N.W.2d 608, 610 (N.D.1990). In reviewing the various orders, it is clear that the district court plainly intended the January 2013 orders to supersede both the December 2012 orders and the judicial referee's original orders in each case. See Hughes, 453 N.W.2d at 610; N.D. Sup. Ct. Admin. R. 13, § 10(a). The court's January 2013 orders specifically rejected the judicial referee's findings and made findings which supersede the December 2012 orders. Here, the Rebels appealed from both the December 2012 orders and the January 2013 orders. Therefore, the district court's January 2013 orders, as supplemented by the June 2013 amended orders entered in each case on limited remand, will be reviewed on appeal. We conclude the Rebels' assertion of “procedural uncertainty” is without merit.
[¶ 10] The Rebels argue the district court erred in granting the disorderly conduct restraining orders.
[¶ 11] “Under N.D.C.C. § 12.1–31.2–01, the district court has discretion ‘to grant a disorderly conduct restraining order and to conduct a hearing on a petition for an order.’ ” Hanisch v. Kroshus, 2013 ND 37, ¶ 9, 827 N.W.2d 528 (quoting Gonzalez v. Witzke, 2012 ND 60, ¶ 8, 813 N.W.2d 592). “Disorderly conduct” is defined as “intrusive or unwanted acts, words, or gestures that are intended to adversely affect the safety, security, or privacy of another person,” but “does not include constitutionally protected activity.” N.D.C.C. § 12.1–31.2–01(1).
[¶ 12] The district court may grant a temporary disorderly conduct restraining order without notice to the respondent and pending a full hearing when a petitioner has alleged “reasonable grounds” to believe that an individual has engaged in disorderly conduct. N.D.C.C. § 12.1–31.2–01(4). If the petitioner complies with procedural requirements under N.D.C.C. § 12.1–31.2–01(5), the court may then grant a restraining order if, after a hearing, the court finds “reasonable grounds” to believe the respondent has engaged in “disorderly conduct.” See Hanisch, 2013 ND 37, ¶ 10, 827 N.W.2d 528. “In other words, an objective, reasonable person must believe the respondent has engaged in ... [disorderly conduct].” Wetzel v. Schlenvogt, 2005 ND 190, ¶ 19, 705 N.W.2d 836. Showing a “pattern” is not required, and a single occurrence constituting disorderly conduct may be sufficient for the district court to grant the restraining order. Hanisch, at ¶ 11;Gonzalez, 2012 ND 60, ¶ 23, 813 N.W.2d 592.
[¶ 13] Generally, the petitioner's case must be established through testimony in a full evidentiary hearing before the district court, rather than affidavits alone, with an opportunity for cross-examination. See Hanisch, 2013 ND 37, ¶ 11, 827 N.W.2d 528. “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. This Court will not reverse the district court's decision to grant a restraining order or conduct a hearing unless there is an abuse of discretion. Hanisch, at ¶ 9. A court abuses its discretion when it acts in an arbitrary, unreasonable, or unconscionable manner, when it misinterprets or misapplies the law, or when its...
To continue reading
Request your trial
-
Estate of Steven H. Harris Bruce G. Harris v. Harris
...the law, or when its decision is not the product of a rational mental process leading to a reasoned determination." Rebel v. Rebel, 2013 ND 164, ¶ 13, 837 N.W.2d 351. [¶7] "If the judgment sought to be set aside is entered pursuant to a stipulation of the parties, the party challenging the ......
-
Harris v. Harris (In re Estate of Harris)
...or misapplies the law, or when its decision is not the product of a rational mental process leading to a reasoned determination." Rebel v. Rebel , 2013 ND 164, ¶ 13, 837 N.W.2d 351. [¶ 7] "If the judgment sought to be set aside is entered pursuant to a stipulation of the parties, the party ......
-
George v. George, 20140063.
...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 ......
-
Hoffarth v. Hoffarth
...or misapplies the law, or when its decision is not the product of a rational mental process leading to a reasoned determination." Rebel v. Rebel , 2013 ND 164, ¶ 13, 837 N.W.2d 351.[¶8] Jeremy Hoffarth's motion to reconsider requested relief under N.D.R.Civ.P. 60(b). He sought relief from t......