Krolik v. Muscha , 2020 ND 240 ( 2020 )

20200085
FILED NOVEMBER 19, 2020
CLERK OF THE SUPREME COURT
STATE OF NORTH DAKOTA
IN THE SUPREME COURT
STATE OF NORTH DAKOTA
2020 ND 240
Jessica Krolik, Petitioner
v.
Cody Alan Muscha, Respondent and Appellant
No. 20200085
Appeal from the District Court of Burleigh County, South Central Judicial
District, the Honorable Douglas A. Bahr, Judge.
AFFIRMED.
Opinion of the Court by Crothers, Justice.
Jessica Krolik, petitioner; no appearance.
Theresa L. Kellington, Bismarck, ND, for respondent and appellant; submitted
on brief.
Krolik v. Muscha
No. 20200085
Crothers, Justice.
[¶1] Cody Muscha appeals from a domestic violence protection order. Muscha
argues he was denied due process because he did not receive adequate notice
of the protection order hearing.
I
[¶2] On January 7, 2020, Jessica Krolik filed a petition for protection against
Muscha. The court entered a temporary domestic violence protection order the
same date, and a hearing was set for January 16. On January 8, a Wells County
sheriff’s deputy served Muscha with the temporary domestic violence
protection order. Muscha claims the deputy told him the hearing was set for
January 29 rather than January 16. Muscha did not appear at the January 16
hearing and a permanent order of protection for 10 years was granted based
on a finding Muscha made threats of actual or imminent harm to Krolik.
[¶3] On January 22, 2020, Muscha filed a request for review of the protection
order claiming he was given insufficient notice of the hearing date, among
other things. On February 19, 2020, the district court entered an order
adopting the original domestic violence protection order and modified certain
supervised visitation requirements regarding Krolik and Muscha’s children.
Muscha appeals from the amended order.
II
[¶4] Muscha argues the district court erred when it entered the domestic
violence protection order, asserting the deputy provided him with the wrong
hearing date. Muscha asserts because he was provided with the wrong date,
he was deprived of his due process right to be heard.
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[¶5] Due process requires a party receive adequate notice and a fair
opportunity to be heard. Rath v. Rath, 2014 ND 171, ¶ 14, 852 N.W.2d 377.
“[T]o comport with due process, a fair hearing requires reasonable notice or
opportunity to know of the claims of opposing parties, along with the
opportunity to rebut those claims.” Id. (quoting Harris v. Harris, 2010 ND 45,
¶ 10, 779 N.W.2d 642). The due process clause requires that notice be
reasonably calculated to inform parties of proceedings which directly and
adversely affect their legally protected interests. Walker v. City of Hutchinson,
Kan., 352 U.S. 112, 115 (1956) (citing Mullane v. Central Hanover Bank &
Trust, Co., 339 U.S. 306 (1950)).
[¶6] Muscha claims his rights to due process and to a full and fair hearing
were denied because the deputy provided him with the incorrect hearing date.
However, the temporary protection order served on Muscha explicitly stated,
“You may appear on the 16th day of January, 2020 at 10:30 AM with Referee
Lindsey Nieuwsma and explain why the Petitioner’s request for a permanent
domestic violence protection order should not be granted or why the terms of
the order should be changed.” See N.D.C.C. § 14-07.1-02(3) (“Service must be
made upon the respondent at least five days prior to the hearing.”). Muscha
admits he and his parents reviewed the protection order several times. At the
hearing, the court made a record of Muscha’s absence, and found he was
provided notice and had an opportunity to be heard but did not appear.
[¶7] Contrary to Muscha’s argument, the requirements of procedural due
process have been satisfied. Notice was provided to Muscha on January 8,
2020, well in advance of the January 16 hearing. The notice was reasonably
calculated to inform him of a proceeding which had the potential to adversely
affect his legal interests. Muscha’s failure to recognize the discrepancy between
what he was allegedly told by the deputy and what the hearing notice stated,
and his failure to appear at the hearing, cannot be imputed to the district court,
even assuming Muscha was provided with an incorrect date. The district court
did not err by issuing the permanent domestic violence protection order.
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III
[¶8] The district court’s domestic violence protection order is affirmed.
[¶9] Jon J. Jensen, C.J.
Gerald W. VandeWalle
Daniel J. Crothers
Lisa Fair McEvers
Jerod E. Tufte
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