Legacie-Lowe v. Lowe , 2023 ND 140 ( 2023 )

FILED
IN THE OFFICE OF THE
CLERK OF SUPREME COURT
AUGUST 2, 2023
STATE OF NORTH DAKOTA
IN THE SUPREME COURT
STATE OF NORTH DAKOTA
2023 ND 140Lori Rae Legacie-Lowe, Petitioner and Appellee
v.
Jerome William Lowe, Jr., Respondent and Appellant
No. 20220314
Appeal from the District Court of Ramsey County, Northeast Judicial District,
the Honorable Donovan J. Foughty, Judge.
AFFIRMED.
Opinion of the Court by Jensen, Chief Justice, in which Justices McEvers,
Tufte, and Bahr joined. Justice Crothers filed an opinion dissenting.
Ulysses S. Jones, Devils Lake, ND, for petitioner and appellee.
Challis D. Williams, Grand Forks, ND, for respondent and appellant.
Legacie-Lowe v. Lowe
No. 20220314
Jensen, Chief Justice.
[¶1] Jerome Lowe, Jr. appealed from a domestic violence protection order
restraining him from contact with Lori Legacie-Lowe for 12 months. This Court
retained jurisdiction under N.D.R.App.P. 35(a)(3)(B) and remanded with
instructions for the district court to make sufficient findings to enable this
Court to review the order. Legacie-Lowe v. Lowe, 2023 ND 88, ¶ 1, 990 N.W.2d
592. Upon reviewing the district court’s findings on remand, we affirm the
domestic violence protection order.
I
[¶2] In September 2022, Lori Legacie-Lowe filed a petition for a domestic
violence protection order. Lori Legacie-Lowe alleged Jerome Lowe verbally
abused her, threw a chainsaw at her, displayed extreme anger, and threw
things while verbally abusing her. Lori Legacie-Lowe testified she is extremely
fearful of Jerome Lowe and because of her fear she now carries a handgun with
her, has installed security cameras, and she cannot sleep at night. The district
court granted the domestic violence protection order, prohibiting Jerome Lowe
from having contact with Lori Legacie-Lowe for 12 months.
[¶3] Jerome Lowe appealed, arguing the district court erred in granting the
domestic violence protection order because Lori Legacie-Lowe did not make a
showing of actual or imminent domestic violence. We concluded the court’s
findings were insufficient, retained jurisdiction under N.D.R.App.P.
35(a)(3)(B) and remanded with instructions for the court to make sufficient
findings. The court made additional findings and concluded the domestic
violence protection order should remain in place.
II
[¶4] A district court may enter a protection order upon a showing of actual or
imminent domestic violence. N.D.C.C. § 14-07.1-02(4).
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A district court’s finding of domestic violence is a finding of
fact that will not be overturned unless it is clearly erroneous. Frisk
v. Frisk, 2005 ND 154, ¶ 6, 703 N.W.2d 341. A finding of fact is
clearly erroneous if it is induced by an erroneous view of the law,
if no evidence supports it, or if, on the entire record, we are left
with a definite and firm conviction a mistake has been made.
Lovcik v. Ellingson, 1997 ND 201, ¶ 10, 569 N.W.2d 697. “The
question whether the trial court has misinterpreted the domestic
violence statute is a question of law that is fully reviewable on
appeal.” Lawrence v. Delkamp, 2000 ND 214, ¶ 7, 620 N.W.2d 151(citing Ryan v. Flemming, 533 N.W.2d 920, 923 (N.D. 1995)).
A domestic violence protection order is a civil action
primarily for injunctive relief. Lovcik, 1997 ND 201, ¶ 11, 569
N.W.2d 697. The party seeking the protective order must prove
actual or imminent domestic violence by a preponderance of the
evidence. Id. Past abusive behavior is a relevant factor to consider
in determining whether domestic violence is actual or imminent.
Id. at ¶ 16. The context and history of the relationship between the
parties is also a relevant factor to consider. Peters–Riemers v.
Riemers, 2001 ND 62, ¶ 8, 624 N.W.2d 83 (citing Cesare v. Cesare,
154 N.J. 394, 713 A.2d 390, 395 (1998)).
Ficklin v. Ficklin, 2006 ND 40, ¶¶ 11-12, 710 N.W.2d 387.
[¶5] Domestic violence is statutorily defined under N.D.C.C. § 14-07.1-01(2)
as:
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.
There must be a showing of actual or imminent domestic violence before a
district court may enter a protection order. Ficklin, 2006 ND 40, ¶ 13; N.D.C.C.
§ 14-07.1-02(4). If the type of domestic violence justifying a protection order is
based upon fear, the harm feared by the petitioner must be “actual or
imminent.” N.D.C.C. § 14-07.1-02(4).
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[¶6] This Court has defined “imminent” as meaning “[n]ear at hand; mediate
rather than immediate; close rather than touching; impending; on the point of
happening; threatening; menacing; perilous.” Steckler v. Steckler, 492 N.W.2d
76, 80 (N.D. 1992) (quoting State v. Kurle, 390 N.W.2d 48, 49 (N.D. 1986)). This
Court has defined “actual” as “[r]eal; substantial; existing presently in fact;
having a valid objective existence as opposed to that which is merely
theoretical or possible.” Steckler, at 81 (quoting Black’s Law Dictionary 34 (6th
ed. (1990))).
[¶7] The district court found several instances rationally caused Lori Legacie-
Lowe to fear imminent physical harm. The court found:
[Jerome Lowe] threw the chainsaw, it bounced and missed [Lori
Legacie-Lowe] by three feet. [Lori Legacie-Lowe] indicated that
she did not know if [Jerome Lowe] intentionally threw the
chainsaw at her. [Jerome Lowe] was angry with her at the time
the chainsaw was thrown and she was shaken by the incident. . . .
[Jerome Lowe] has told [Lori Legacie-Lowe] and others that he has
an evil twin that can come out and things can go bad when he gets
angry and mad and he can fight. . . . In the context of this record it
is understandable that [Lori Legacie-Lowe] would be fearful of
[Jerome Lowe].
The court also found Jerome Lowe has stated “I have a hole, but I don’t have a
dead body yet,” Jerome Lowe exerts physical force when he is angry, Jerome
Lowe threw cattle panels over a fence when Lori Legacie-Lowe was unable to
give an injection to their cow, and Jerome Lowe is verbally abusive to Lori
Legacie-Lowe.
[¶8] Jerome Lowe argues all of these incidents amount to threats that did not
inflict fear of imminent physical harm. Much of the case law regarding
domestic violence protection orders and a finding of domestic violence by
threats which inflict fear of imminent harm analyzes verbal threats. In Lenton
v. Lenton, this Court affirmed a domestic violence protection order when
considering the past physical violence and the context of the relationship, the
verbal threat of “get what’s coming” to her was enough to support a finding of
domestic violence. 2010 ND 125, ¶ 11, 784 N.W.2d 131. In Lovcik v. Ellingson,
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this Court affirmed a domestic violence protection order entered against the
father for threatening and hostile phone calls made to the mother considering
the prior violent acts and circumstances of the relationship. 1997 ND 201,
¶¶ 12-13, 569 N.W.2d 697. In Ficklin, this Court reversed a domestic violence
protection order because the statement he would burn the house down was not
imminent domestic violence but a perceived possibility of a threat. 2006 ND
40, ¶ 21.
[¶9] Here, the district court’s findings include incidents of verbal threats and
threatening actions. For instance, the court found the throwing of the chainsaw
at or near Lori Legacie-Lowe caused Lori Legacie-Lowe fear of imminent
physical harm. Unlike in Ficklin, where the threat was a perceived possible
act that he would burn the house down, 2006 ND 40, ¶ 21, here the physical
act of throwing a chainsaw was an actual event which caused Lori Legacie-
Lowe immediate fear that she would be hit with the chainsaw. The court found
the physical act of throwing the chainsaw, along with the context of the
relationship including numerous verbal threats, constituted domestic violence.
Because the physical act of Jerome Lowe throwing a chainsaw at or near Lori
Legacie-Lowe would reasonably cause a person to fear imminent physical harm
it was not clearly erroneous for the court to make a finding of domestic violence.
III
[¶10] The district court’s finding of domestic violence is not clearly erroneous.
The domestic violence protection order is affirmed.
[¶11] Jon J. Jensen, C.J.
Lisa Fair McEvers
Jerod E. Tufte
Douglas A. Bahr
Crothers, Justice, dissenting.
[¶12] The district court made findings of fact before this appeal and additional
findings after our remand. Legacie-Lowe v. Lowe, 2023 ND 88, ¶ 1, 990 N.W.2d
592; majority opinion, ¶ 1. Accepting all of the district court’s findings as not
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clearly erroneous, I respectfully disagree with the majority that the conduct
meets the legal threshold for domestic violence. Therefore, I would hold as a
matter of law that Legacie-Lowe’s burden of proof has not been met.
[¶13] In Lenton v. Lenton, 2010 ND 125, ¶ 12, 784 N.W.2d 131, we explained
the requirement of fear of imminent harm:
We emphasize that when a finding of domestic violence is
based solely on fear, the fear must be of imminent physical harm.
Section 14-07.1-02(4), N.D.C.C., provides that a district court may
enter a protection order “upon a showing of actual or imminent
domestic violence.” “Domestic violence” is defined as including
“physical harm” or “the infliction of fear of imminent physical
harm.” N.D.C.C. § 14-07.1-01(2). The statutory definition plainly
requires that for infliction of fear to rise to the level of domestic
violence, the fear must be of “imminent physical harm.” N.D.C.C.
§ 14-07.1-01(2). We are concerned that some of our prior opinions
may be misinterpreted as stating that when a finding of domestic
violence is based on fear alone, infliction of fear of “actual harm”
meets the standard. See, e.g., Wolt v. Wolt, 2010 ND 33, ¶ 19, 778
N.W.2d 802 (“Under N.D.C.C. § 14-07.1-02(4), when the ‘domestic
violence’ justifying a protection order is premised on ‘fear,’ the
harm feared by the petitioner must be ‘actual or imminent.’”);
Ficklin v. Ficklin, 2006 ND 40, ¶ 13, 710 N.W.2d 387 (“When the
type of domestic violence justifying a domestic violence protection
order is based upon fear, the harm feared by the petitioner must
be ‘actual or imminent.’”). We emphasize that a finding of domestic
violence may be based on actual harm, or the infliction of fear of
imminent harm, or both, but may not be based solely on the
infliction of fear of actual harm that may occur at some indefinite
time in the future. “Actual” physical harm is not necessarily
“imminent” physical harm, but could be physical harm occurring
at some indefinite time in the future. Section 14-07.1-01(2),
N.D.C.C., plainly requires that for infliction of fear to rise to the
level of domestic violence, the fear must be of “imminent physical
harm.” N.D.C.C. § 14-07.1-01(2).
[¶14] In this case, before remand the totality of the district court’s written
findings were, “[r]espondent is verbally abusive to petition (sic) on several
occasions since July 2022.” Legacie-Lowe v. Lowe, 2023 ND 88, ¶ 7. The court’s
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oral findings were, “I’m satisfied, by greater weight of the evidence, that there
is—that there is a need for a protection order. Although there has been no
evidence to suggest that there’s been physical harm against the petitioner by
the respondent, there has been the infliction of fear of imminent physical harm;
I’m satisfied that the evidence supports that proposition.” Id.[¶15] The district court’s findings on remand were longer, but I submit still
lacked a sufficient basis to issue the domestic violence protection order
(DVPO). The new findings were as follows:
II.
That Jerry is verbally abusive and critical of Lori. He is short
tempered with Lori when working on projects around the
farmstead and when helping out neighbors.
III.
Jerry has told Lori and others that he has an evil twin that
can come out and things can go bad when he gets angry and mad
and he can fight. It is unclear to the Court as to whether he was
joking at the time or times when he has made these statements. In
the context of this record it is understandable that Lori would be
fearful of Jerry.
IV.
Around Labor Day weekend 2022 Lori and Jerry were
helping neighbors/family cut down some trees. Jerry was verbally
abusive to Lori using profane language because she did not operate
the equipment to Jerry’s satisfaction. When a chainsaw got
jammed in a tree and it was unstuck Jerry threw the chainsaw, it
bounced and missed Lori by three feet. Lori indicated that she did
not know if Jerry intentionally threw the chainsaw at her. Jerry
was angry with her at the time the chainsaw was thrown and she
was shaken by the incident.
V.
In a conversation with a hearing witness Jerry told the
witness “I have a hole, but I don’t have a dead body yet.” The
context of this conversation related to a missing person from
Petersburgh, North Dakota and a hole was being dug to bury a
euthanized horse. The parties that heard the statement were
uncomfortable with what they heard. Lori did not hear Jerry make
the statement. When the statement was told to her she interpreted
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the statement to mean it was going to be her body or the individual
who slapped her rear end.
VI.
In another incident Jerry and Lori were trying to give a cow
two injections and when Lori was unable to get the second
injection, Jerry became angry and he threw three six foot cattle
panels overhead and over a six foot cattle panel. The panels were
not directed at Lori. This is another example of when Jerry gets
angry, he exerts physical force to express his anger.
[¶16] The district court’s current finding of fact II is a conclusion that Lowe
has a temper and is verbally abusive. While both a temper and verbal abuse
are generally undesirable traits, neither meets the legal requirement of
proving domestic violence through fear of imminent physical harm.
[¶17] The district court’s finding III was that Lowe has an “evil twin” who “gets
angry and mad and he can fight.” Again, while anger and fighting are generally
undesirable traits, this finding contributes little to nothing supporting a
determination that Lowe placed Legacie-Lowe in fear of imminent physical
harm.
[¶18] The district court’s finding IV was that Lowe was verbally abusive
towards Legacie-Lowe, he was “using profane language,” and he threw a
chainsaw that “missed Lori by three feet.” Legacie-Lowe testified “she did not
know if Jerry intentionally threw the chainsaw at her.” These findings also
establish Lowe has a temper, throws things, and treats Legacie-Lowe poorly.
However, the findings fail to establish Lowe’s conduct placed Legacie-Lowe in
fear of imminent physical harm, as required by law.
[¶19] The district court’s finding V related that Lowe was overheard saying “I
have a hole, but I do not have a dead body yet.” The court’s finding also reports
Legacie-Lowe’s testimony that “she interpreted the statement to mean it was
going to be her body or the individual who slapped her rear end.” The court
made no finding about the truth of Lowe’s purported statement. Nor did the
court find Legacie-Lowe’s interpretation showed the perceived threat was
imminent, as required by law. Lowe’s talk about having a hole was a vague
7
statement alluding to possible future conduct, but it was not proof of domestic
violence through fear of imminent physical harm.
[¶20] The district court’s finding VI was that Lowe became angry and threw
three cattle panels over another cattle panel. After finding “[t]he panels were
not directed at Lori,” the court noted “[t]his is another example of when Jerry
gets angry, he exerts physical force to express his anger.” The court’s final
assessment makes clear that Lowe has a problem with his anger and, when he
is angry, he has been shown to exert physical force on inanimate objects—
cattle panels and chainsaws. But that is all the evidence showed. The evidence
did not show, and the court did not find facts supporting, a conclusion that
Legacie-Lowe was placed in fear of imminent physical harm. Rather, the
evidence here was similar to that in Lenton where this Court concluded the
evidence did not support issuance of a DVPO.
[¶21] Due to the lack of evidence establishing Lowe’s conduct meets the legal
threshold for proving domestic violence by fear of imminent physical harm, I
would reverse the district court’s order.
[¶22] Daniel J. Crothers
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