Rekow v. Durheim ( 2022 )

FILED
IN THE OFFICE OF THE
CLERK OF SUPREME COURT
OCTOBER 4, 2022
STATE OF NORTH DAKOTA
IN THE SUPREME COURT
STATE OF NORTH DAKOTA
2022 ND 177Brandon Rekow, Petitioner and Appellee
v.
Susan Durheim, Respondent and Appellant
No. 20220073
Appeal from the District Court of Dickey County, Southeast Judicial District,
the Honorable Mark T. Blumer, Judge.
REVERSED.
Opinion of the Court by McEvers, Justice.
Brandon Rekow, self-represented, Ellendale, ND, petitioner and appellee.
Erica A. S. Hovey, Fargo, ND, for respondent and appellant.
Rekow v. Durheim
No. 20220073
McEvers, Justice.
[¶1] Susan Durheim appeals from a disorderly conduct restraining order
directing that she have no contact with Brandon Rekow for a one-year period.
We reverse, concluding the district court abused its discretion when it found
reasonable grounds existed for the disorderly conduct restraining order.
[¶2] Rekow and Durheim had a strained relationship dating back to 2015,
when Rekow allegedly bought gravel from Durheim’s husband and failed to
pay for it. On January 18, 2022, Rekow petitioned for a disorderly conduct
restraining order against Durheim under N.D.C.C. § 12.1-31.2-01. The district
court held a hearing on the petition on February 22, 2022. In Rekow’s petition
and through testimony, he described events taking place on January 12, 2022,
that led to filing the petition against Durheim. Durheim alleged she went to
Rekow’s home to collect on the unpaid bill for the gravel. An argument ensued
and Rekow told Durheim to get off his property. Durheim eventually left the
property after being asked to do so numerous times. At the hearing on the
petition, each party accused the other of swearing and name-calling. Rekow
admitted swearing at Durheim. Durheim denied she swore at Rekow. Other
than generally stating he wants Durheim to stop harassing him, Rekow did
not testify specifically as to how the incident with Durheim affected his safety,
security, or privacy. He stated, “she’s very threatening. I get called all kinds of
names and berated, harassed.” Rekow testified he only felt threatened with a
lawsuit, not with violence.
[¶3] At the conclusion of the hearing, the district court ruled from the bench
granting Rekow’s petition for a one-year disorderly conduct restraining order
against Durheim. The court found:
I am going to grant the petition for up to a period of one year.
Disorderly conduct means intrusive or unwanted acts, words, or
gestures that are intended to adversely affect the safety, security,
or privacy of another. Ms. Durheim came onto his property. He
requested that she leave. An argument ensued. She did not leave
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immediately after being requested. She doesn’t recall when she
left. She indicated she didn’t recall a few matters.
Mr. Rekow indicates that she was yelling at him. He was also
yelling at her apparently, but it was on his property. He asked her
two to three times to leave his property over a period of several
minutes. That is an intrusive, unwanted act adversely affecting
the privacy and security of another. It could have been across the
street and yelled something, and if a person finds that – it doesn’t
even necessarily have to be directed. But you can be across the
street and yell something at somebody and that would be
disorderly conduct. This took place on his property after being
requested to leave. Testimony is that she didn’t leave immediately
but engaged in an argument. I’m going to grant the petition.
[¶4] Utilizing a standard disorderly conduct restraining order form, the court
entered an order against Durheim incorporating its findings on the record as
the basis for its decision. Durheim appealed.
I
[¶5] Durheim argues the district court abused its discretion in issuing the
disorderly conduct restraining order because its findings were insufficient to
support its decision.
[¶6] Our standard for reviewing a district court’s decision on a disorderly
conduct restraining order is well established:
This Court will not reverse a district court’s decision to grant a
restraining order or to conduct a hearing absent an abuse of
discretion. The 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.
Combs v. Lund, 2015 ND 10, ¶ 4, 858 N.W.2d 311 (quoting Hanisch v.
Kroshus, 2013 ND 37, ¶ 9, 827 N.W.2d 528).
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[¶7] A disorderly conduct restraining order may be granted when a petitioner
establishes, by reasonable grounds, that the respondent engaged in disorderly
conduct. N.D.C.C. § 12.1-31.2-01(5). 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.” N.D.C.C. § 12.1-31.2-
01(1); see also Cusey v. Nagel, 2005 ND 84, ¶ 6, 695 N.W.2d 697. “Because of
the stigma and grave consequences to the respondent associated with a
disorderly conduct restraining order, we have repeatedly stressed that a person
who petitions for an order must allege specific facts or threats.” Cusey, at ¶11.
It is not enough to show the respondent’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. Id. at ¶ 7. “Subjective fear is
insufficient to support a disorderly conduct restraining order.” Id. It is not
enough under N.D.C.C. § 12.1-31.2-01 that the petitioner wants the other
person out of the petitioner’s life. Cusey, at ¶ 13. “Vague generalities do not
suffice,” and “[c]onclusory testimony that ‘he harassed me,’ ‘he abused me,’ or
‘he threatened me’ does little to aid the trial court in determining whether the
alleged perpetrator’s actions rise to the level of disorderly conduct under the
statute.” Id. at ¶ 11 (quoting Williams v. Spilovoy, 536 N.W.2d 383, 385 (N.D.
1995)). A petitioner must show how the respondent’s conduct affected his
safety, security, or privacy. Mitzel v. Larson, 2017 ND 48, ¶ 12, 890 N.W.2d
817. Conclusory statements on the record by the district court will not suffice.
Id.[¶8] Additionally, Rule 52(a), N.D.R.Civ.P., applies to disorderly conduct
restraining orders. Combs, 2015 ND 10, ¶ 17. In an action tried on the facts
without a jury, the court must find the facts specially and state its conclusions
of law separately. N.D.R.Civ.P. 52(a)(1). “Under N.D.R.Civ.P. 52(a), a district
court trying an action upon the facts without a jury ‘shall find the facts
specially.’ A district court must make findings of fact that are sufficient to
enable an appellate court to understand the factual determinations made by
the district court and the basis for its conclusions of law.” Combs, 2015 ND 10,
¶ 17 (quoting Rothberg v. Rothberg, 2006 ND 65, ¶ 14, 711 N.W.2d 219). A
district court’s findings of fact should be stated with sufficient specificity to
assist the appellate court’s review and to afford a clear understanding of the
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district court’s decision. Combs, 2015 ND 10, ¶ 17. Findings that do not
specifically identify intrusive or unwanted acts that were intended to affect the
safety, security, or privacy of another are inadequate. Id. at ¶ 19.
[¶9] The district court made no findings concerning Durheim’s intent. Near
the conclusion of the hearing, the court stated, “[h]e asked her two or three
times to leave his property over a period of several minutes. That is an
intrusive, unwanted act adversely affecting the privacy and security of
another.” What the court described here may constitute trespass. See G&D
Enterprises v. Liebelt, 2020 ND 213, ¶ 17, 949 N.W.2d 853 (noting trespass is
an invasion or interference with an interest in ownership or possession of
property); see also 87 C.J.S. Trespass, § 2 (Sep. 2022). However, the court did
not explain how Durheim’s conduct toward Rekow (not leaving the yard
immediately when asked and mutual yelling) affected his safety, security, or
privacy, or that her conduct was intended to do so. The court did not specially
find facts relating to Durheim’s intent, failing to comply with the requirements
of Rule 52(a). The vague findings made by the district court do not enable this
Court to understand the basis for its conclusion. Given the court’s conclusory
findings and Rekow’s lack of specific testimony on how Durheim’s conduct
adversely affected his safety, security, or privacy, we are not convinced the
requirements of N.D.C.C. § 12.1-31.2-01 were satisfied in this case. We
conclude the district court abused its discretion when it issued the disorderly
conduct restraining order.
II
[¶10] We reverse the one-year disorderly conduct restraining order against
Durheim.
[¶11] Daniel J. Crothers, Acting C.J.
Lisa Fair McEvers
Jerod E. Tufte
Allan L. Schmalenberger, S.J.
Kari M. Agotness, D.J.
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[¶12] The Honorable Allan L. Schmalenberger, S.J., and the Honorable Kari
M. Agotness, D.J., sitting in place of Jensen, C.J., and VandeWalle, J.,
disqualified.
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