Sandbeck v. Rockwell

• Decision Date: 02 December 1994
• Docket Number: No. 940125,940125
• Citation: 524 N.W.2d 846
• Parties: Deborah SANDBECK, Petitioner and Appellee, v. Bronson J. ROCKWELL, Respondent and Appellant. Civ.
• Court: North Dakota Supreme Court

Page 846

524 N.W.2d 846

Deborah SANDBECK, Petitioner and Appellee, v. Bronson J. ROCKWELL, Respondent and Appellant.

Civ. No. 940125.

Supreme Court of North Dakota.

Dec. 2, 1994.

Serkland, Lundberg, Erickson, Marcil & McLean, Ltd., for petitioner and appellee; argued by Armond G. Erickson.

Bronson J. Rockwell (argued), pro se.

MESCHKE, Justice.

Bronson J. Rockwell appealed a domestic violence order restraining him from contact with Deborah Sandbeck for twelve months. We conclude that the protection order was based on sufficient evidence at a "full hearing" of Sandbeck's motion, when Rockwell failed to timely file an opposing affidavit. We affirm.

Sandbeck applied on April 7, 1994, for domestic violence protection from Rockwell. In her verified application, Sandbeck swore that in January 1994 she moved out of the apartment of her "ex-cohabitating boyfriend" because he mistreated and threatened her. She also attested:

Two weeks ago he told me he'd kill me if he ever saw me with someone else. He always tells me I'm going to make him want to kill someone. He follows me around and comes to my house and pounds on the door and telephones me at all hours of the night.

Sandbeck described other violent acts by Rockwell while she lived with him. These included sudden angry outbursts, threats to kill her, and times when he choked her "to the point that everything gets real fuzzy and I nearly pass out." Sandbeck "fear[ed] for [her] safety if he doesn't stay away from me." She sought protection from Rockwell through "absolutely no contact."

Based on this evidence under NDCC chapter 14-07.1, the trial court issued an ex parte protection order. Temporarily, it excluded Rockwell from Sandbeck's dwelling, prohibited all "phone calls, letters, [and] third party, or personal contact" with her, and ordered him to "have absolutely no contact with" her. Complying with directions in NDCC 14-07.1-03(4) to set a "full hearing ... not later than fourteen days from the issuance of the temporary order," the trial court ordered Rockwell to "personally appear and show cause" on April 20, 1994, at 10:00 A.M., "why the relief sought ... should not be granted."

Without an attorney, Rockwell came to the scheduled hearing to contest the order. He did not file an opposing affidavit beforehand. "If you want[ed] evidence presented today, it should have been by affidavit filed before yesterday," the trial court told Rockwell. The court therefore refused to allow Rockwell to offer audio tapes and home videos to show "the kind of woman that she was" and that Sandbeck had been sexually aggressive with him. When Rockwell protested, the court told him, "I'm not going to give you legal advi[c]e."

The trial court allowed Rockwell to cross-examine Sandbeck. Rockwell's questions only developed more details from Sandbeck about times when Rockwell had "[g]rab[bed] my hair," "[f]orce[d] yourself on me," and harassed her at her workplace. The court gave Rockwell added time for argument, and then entered a twelve-month protection order that enjoined Rockwell from contacting, harassing, or threatening Sandbeck.

On this appeal, also without an attorney, Rockwell says that he was "not familiar with both the procedural and substantive laws of the legal system," complains that he "didn't know that he would not have counsel or that the judge would NOT fairly mediate all evidence brought before him," and argues that "he should ... have been advised of his legal rights to counsel or otherwise allowed to give testimony." Rockwell insists that he did not get a "full hearing." He disputes that Sandbeck " 'SHOWED' in a visible or evidential sense an actual or imminent sign of domestic violence." He asserts that "he can prove beyond a shadow of a doubt in a FULL/FAIR trial that [Sandbeck] was sexually aggressive and initiated most of the sexual encounters." Rockwell requests a new judge, another hearing to present evidence, and a dual protection order to protect him from Sandbeck.

With his reply brief in this court, Rockwell submitted "various enclosures." These included microcassette tapes, videotapes, and other material that he wanted to have considered as evidence.

Sandbeck moved to exclude this material since it was not in the hearing record. See City of Minot v. Freelander, 368 N.W.2d 514, 518 (N.D.1985): "Generally, this Court must decide [an] appeal solely on the evidence produced in the trial court." We granted Sandbeck's motion and returned Rockwell's material, "without prejudice to [Rockwell] to raise the procedural issue on appeal of whether or not he should have had the opportunity to present his evidence to the trial court."

We are not persuaded that Rockwell's opportunity to present evidence at the hearing was inadequate or unfair. We conclude also that Sandbeck's evidence justified the protection ordered.

The scope of a hearing often depends on whether the procedure is an action or a special proceeding. A domestic violence proceeding is described as an "action" in NDCC 14-07.1-02(1), and we said in Steckler v. Steckler, 492 N.W.2d 76, 80 (N.D.1992), it is a civil action for injunctive relief. ¹ In Selland v. Selland, 494 N.W.2d 367, 368 (N.D.1992), we described a protection order as "a species of injunction" that is final and appealable after a hearing if no other claim remains. The statute, though, 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.

The statute authorizing a stand-alone domestic-violence protection order, NDCC ch. 14-07.1, directs that the procedure begin, not with a summons and complaint as an action would, but with a "verified application" that is simply an affidavit. NDCC 14-07.1-02(1). See also NDRCivP 81(a): "Special statutory proceedings ... are excepted from these rules insofar as they are inconsistent or in conflict with the procedure and practice provided by these rules." Under NDRCivP 3, a civil action commences with the service of a summons. On the other hand, "[a]n application to the court for an order shall be by motion which, unless made during a hearing or trial, shall be made in writing...." NDRCivP 7(b)(1). Thus, the special procedure authorized for domestic violence protection in NDCC ch. 14-07.1 is an affidavit application for a short-term order. Thus, in essence, it is a motion with notice by an order to show cause, rather than notice by a summons and complaint for an action.

For a protection order, "[u]pon receipt of the application, the court shall order a hearing to be held not later than fourteen days from the date of the hearing order." NDCC 14-07.1-02(2) (emphasis ours). Service of the order for the hearing must be made on the respondent "at least five days prior to the hearing." Id. at subsection (3). This is the time for notice of a motion. NDRCivP 6(d). The statute thus directs the faster motion procedure, rather than the usual and longer time to answer an action: "A defendant ... shall serve an answer ... within 20 days after service of the summons...." NDRCivP 12(a). The special procedure for a separate protection order is thus simply one for a short-term order, with notice of the hearing given by an order to show cause. ²

Commonly, a protection order has been the product of an ancillary, interim motion in a domestic relations action, rather than a separate special proceeding. See NDROC 8.2(d). An order to show cause has been the summary procedure, long established, to obtain a short-term injunction in an action. See NDCC ch. 32-06. To set a hearing for a temporary injunction, "an order may be made requiring cause to be shown at a specified time and place why the injunction should not be granted, and the defendant in the meantime may be restrained." NDCC 32-06-06 (part). "The application [to vacate or modify a temporary injunction] may be made upon the complaint and the affidavits on which the injunction was granted or upon affidavits on the part of defendant, with or without the answer." NDCC 32-06-09 (part). "Upon the hearing on an application for a restraining order, or on an order to show cause, or on a motion, oral testimony will not be received unless the court shall direct otherwise." NDCC 32-06-11 (part). Not surprisingly, when the Legislature authorized a special proceeding for a separate domestic-violence protection order in NDCC ch. 14-07.1, it adapted this traditional summary method for a temporary injunction by authorizing a hearing upon order of the court.

"An order to show cause is merely a quick way of bringing a motion on for hearing." Kee v. Redlin, 203 N.W.2d 423, 431 (N.D.1972) (Maxwell, Judge, dissenting). Judge Maxwell cited the explanation in Schillerstrom v. Schillerstrom, 75 N.D. 667, 32 N.W.2d 106, 111, 2 ALR2d 271, 276 (1948): "In granting an order to show cause, the court looks not at the merits, but at the question whether there is a necessity for a shorter notice" of the motion. See also First Nat'l Bank & Trust Co. of Fargo v. Krogh, 70 N.D. 363, 294 N.W. 660, 662 (1940), quoting from Difani v. Riverside County Oil Co., 201 Cal. 210, 256 P. 210, 212 (1927) ("An order to show cause is a notice of motion and a citation to the party to appear at a stated time and place to show cause why a motion should not be granted."). The order-to-show-cause hearing for a protection order is not a trial; it is simply a motion hearing.

This is emphasized in a Note by the East Central Judicial District in Fargo, following its published Local Rule 1 on "Motions Practice":

Orders to show Cause are considered to be motions. Ex parte interim relief will be granted conditioned upon a formal motion hearing properly noticed.

North Dakota Century Code, Annotated Court Rules, pp. 911-12 (Michie 1994-95 ed.). This special proceeding for a stand-alone protection order is thus subject to the consistent rules...