Rekow v. Durheim ( 2022 )


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  •                                                                                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 177
    Brandon 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
    ).
    2
    [¶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
    3
    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.
    4
    [¶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.
    5
    

Document Info

Docket Number: 20220073

Judges: McEvers, Lisa K. Fair

Filed Date: 10/4/2022

Precedential Status: Precedential

Modified Date: 10/4/2022