Jones v. Rath , 2023 ND 69 ( 2023 )

FILED
IN THE OFFICE OF THE
CLERK OF SUPREME COURT
APRIL 13, 2023
STATE OF NORTH DAKOTA
IN THE SUPREME COURT
STATE OF NORTH DAKOTA
2023 ND 69Kayla Jones, Petitioner
v.
Mark Rath, Respondent and Appellant
No. 20220239
Appeal from the District Court of Morton County, South Central Judicial
District, the Honorable Cherie L. Clark, Judge.
AFFIRMED.
Opinion of the Court by Crothers, Justice.
Kayla Jones, petitioner; no appearance.
Mark A. Rath, Bismarck, ND, self-represented, respondent and appellant.
Jones v. Rath
No. 20220239
Crothers, Justice.
[¶1] Mark Rath appeals from a disorderly conduct restraining order directing
him to have no contact with Kayla Jones for one year. Rath argues the court
abused its discretion by not holding a hearing within fourteen days of issuing
the temporary restraining order. He argues the court abused its discretion by
granting a restraining order even though Jones’s petition did not comply with
N.D.C.C. § 12.1-31.2-01(3). He also argues the court abused its discretion by
issuing the disorderly conduct restraining order without sufficient findings. We
affirm.
I
[¶2] In January 2013, Rath and Jones divorced. Together they have two
children. On July 21, 2022, Jones filed a petition for a disorderly conduct
restraining order after Rath sent numerous e-mails to Jones, her attorney, and
her employer during a short period of time. A temporary restraining order was
issued. On August 9, 2022, a hearing was held and the district court granted a
disorderly conduct restraining order against Rath. Rath timely appealed.
II
[¶3] Rath argues the district court abused its discretion by not holding a
hearing within fourteen days of the temporary restraining order.
[¶4] Under N.D.C.C. § 12.1-31.2-01(5)(c), the court may grant a disorderly
conduct restraining order if the court sets a hearing within fourteen days of an
issuance of a temporary restraining order. The hearing may be set later if there
is good cause. Id.
[¶5] “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.”
Lehnerz v. Christopher, 2022 ND 122, ¶ 4, 975 N.W.2d 585. “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
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its decision is not the product of a rational mental process leading to a reasoned
determination.” Id.[¶6] Rath argues the hearing did not comply with the fourteen-day time
restraint in N.D.C.C. § 12.1-31.2-01(5)(c). A temporary restraining order was
issued on July 21, 2022. Fourteen days from July 21, 2022 was August 4, 2022.
A hearing was set for August 4, 2022, but was continued when the case was
reassigned to the Southeast Judicial District after all the South Central
Judicial District judges were disqualified. The earliest date a judge from the
Southeast Judicial District could hold the hearing was August 9, 2022.
Following Rath’s objection, the district court found the disqualification and
reassignment was good cause for the delay. The court’s finding was not
unreasonable or unconscionable because there was legitimate scheduling delay
after the reassignment. Therefore, the court did not abuse its discretion by
holding the hearing on August 9, 2022.
III
[¶7] Rath argues the district court abused its discretion by granting a
disorderly conduct restraining order even though Jones’s petition did not
comply with N.D.C.C. § 12.1-31.2-01(3).
[¶8] Section 12.1-31.2-01(3), N.D.C.C., provides:
“A petition [for a disorderly conduct order] must allege facts
sufficient to show the name of the alleged victim, the name of the
individual engaging in the disorderly conduct, and that the
individual engaged in disorderly conduct. An affidavit made under
oath stating the specific facts and circumstances supporting the
relief sought must accompany the petition.”
[¶9] A district court’s decision to grant a restraining order will not be reversed
absent an abuse of discretion. Lehnerz, 2022 ND 122, ¶ 4.
[¶10] The petition required Jones to describe the events between her and Rath
to support why the district court should grant a restraining order against Rath.
Instead of describing the events in the provided space of the petition, Jones
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wrote “See attached affidavit,” and attached a separate document to the
petition. Rath argues the petition is invalid because Jones did not describe the
events on the petition, but on a separate document which was not signed under
oath.
[¶11] The petition was signed by Jones under the statement “I declare, under
penalty of perjury under the law of North Dakota, that everything I stated in
this Petition for Disorderly Conduct Restraining Order is true and correct.”
Jones also signed at the bottom of the separate document. The district court
found the information on the separate page, which was referred to in the
petition, was contained within the petition. The court therefore concluded the
petition was valid under N.D.C.C. § 12.1-31.2-01(3).
[¶12] The district court’s finding that the separate factual statement was part
of the petition was supported by the facts, and its conclusion was not
unreasonable or unconscionable because Jones referenced the separate
document within the petition. Therefore, the court did not abuse its discretion
by granting the disorderly conduct restraining order based on Jones’s petition.
IV
[¶13] Rath argues the district court abused its discretion in issuing the
disorderly conduct restraining order without sufficient findings.
[¶14] “‘Disorderly conduct’ means 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). “The court may grant a
restraining order if, after a hearing, it finds reasonable grounds to believe the
respondent has engaged in disorderly conduct.” Lehnerz, 2022 ND 122, ¶ 6.
“Reasonable grounds exist for issuing a restraining order when the facts and
circumstances presented to the judge are sufficient to warrant a person of
reasonable caution to believe that acts constituting disorderly conduct have
been committed.” Id. This Court will not reverse a district court’s decision to
grant a restraining order absent abuse of discretion. Id. at ¶ 4.
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[¶15] The district court’s factual findings for ordering a disorderly conduct
restraining order included that: Rath admitted he knew Jones did not want
him to send her e-mails, Rath sent e-mails to Jones and her attorney
referencing Jones’s throat getting slit and asserting Jones and her attorney
were engaging in sexual acts, Rath sent an inappropriate e-mail to Jones’s
employer and Rath sent 20 to 30 e-mails a day to Jones and her attorney.
[¶16] In Rekow v. Durheim, we reversed a one-year disorderly conduct
restraining order after determining the district court did not specifically
identify the defendant’s acts were intended to affect the safety, security, or
privacy of another. 2022 ND 177, ¶ 8, 980 N.W.2d 917. Our decision in Rekow
stressed the need for the district court to make sufficient findings on all the
elements of proof, including addressing a respondent’s intent. Id. However, the
facts in this case are significantly different than those in Rekow. In Rekow, the
court granted the restraining order after finding Durheim came onto Rekow’s
property, Rekow requested that she leave, an argument ensued, and Durheim
did not leave immediately.
[¶17] The order in Rekow did not provide us with an understanding of the
district court’s basis for finding intent. Here, we understand the court’s
rationale for issuing the protective order. See Clarke v. Taylor, 2019 ND 251, ¶
11, 934 N.W.2d 414; Lindstaedt v. George, 2020 ND 262, ¶ 6, 952 N.W.2d 102;
VND, LLC v. Leevers Foods, Inc., 2003 ND 198, ¶ 27, 672 N.W.2d 445 (affirmed
protection orders where the district court’s findings lacked specificity, but this
Court could understand the rationale for the decision to issue the order).
[¶18] The findings by the district court, while not using the word “intent,”
leave us with a clear understanding the court found Rath intended to adversely
affect Jones’s safety, security, or her privacy with his conduct. Specifically, Rath
was aware his e-mails were unwanted, he sent an inappropriately large volume
of e-mails, and the e-mails contained threats to Jones’s safety and security (her
throat would be slit) and her privacy (alleging she was engaged in sexual
conduct with her attorney and contacting her employer). On these facts, the
court did not abuse its discretion by granting the disorderly conduct
restraining order.
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V
[¶19] The district court did not abuse its discretion by holding a hearing more
than fourteen days after the temporary restraining order was issued. The court
did not abuse its discretion by finding Jones’s petition complied with N.D.C.C.
§ 12.1-31.2-01(3). The findings of the court, while lacking the word “intent,” are
sufficient to understand the court’s rationale regarding Rath’s intent to
adversely affect Jones’s safety, security, or privacy. We affirm.
[¶20] Jon J. Jensen, C.J.
Daniel J. Crothers
Lisa Fair McEvers
Jerod E. Tufte
Daniel Saleh El-Dweek, D.J.
[¶21] The Honorable Daniel S. El-Dweek, D.J., sitting in place of Bahr, J.,
disqualified.
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