Legacie-Lowe v. Lowe , 2023 ND 88 ( 2023 )

FILED
IN THE OFFICE OF THE
CLERK OF SUPREME COURT
MAY 9, 2023
STATE OF NORTH DAKOTA
IN THE SUPREME COURT
STATE OF NORTH DAKOTA
2023 ND 88Lori 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.
REMANDED.
Opinion of the Court by Jensen, Chief Justice.
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. appeals from a domestic violence protection order,
arguing the district court erred in granting the order and failed to make
sufficient findings to enable this Court to properly review the order. We retain
jurisdiction under N.D.R.App.P. 35(a)(3)(B) and remand with instructions for
the district court to make sufficient findings to enable our review of the 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 near 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.
II
[¶3] Jerome Lowe argues 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.
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)).
1
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.
[¶4] 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).
[¶5] 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))).
[¶6] Jerome Lowe also argues the district court failed to make sufficient
findings on whether there was a showing he had inflicted a fear of imminent
2
domestic violence. The district court must make findings of fact sufficient to
enable this Court to make a meaningful review.
Under N.D.R.Civ.P. 52(a), the district court is required to
make findings of fact and conclusions of law sufficient to enable
this Court to understand the factual determinations made by the
district court and the basis for its conclusions of law and the
judgment or order entered thereon. Matter of Kulink, 2018 ND 260,
¶ 7, 920 N.W.2d 446. The court’s findings of fact and conclusions of
law should be stated with sufficient specificity to assist the
appellate court’s review and to afford a clear understanding of the
district court’s decision. Id.Clarke v. Taylor, 2019 ND 251, ¶ 8, 934 N.W.2d 414.
[¶7] The district court made limited findings on whether Lori Legacie-Lowe
had established Jerome Lowe had inflicted a fear of imminent domestic
violence. The oral findings included the following:
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. And I’m going to grant the protection
order; it’ll be in place for a period of 12 months.
The district court’s only written finding was “[r]espondent is verbally abusive
to petition (sic) on several occasions since July 2022.”
[¶8] The district court made a conclusory finding that Jerome Lowe had
inflicted fear of imminent physical harm on Lori Legacie-Lowe. The court did
not explicitly indicate the factual basis for a finding of domestic violence by
infliction of imminent physical harm. “A court has a duty to make accurate and
adequate findings to support the issuance of an order and to allow for an
intelligible review of a case on appeal.” Ficklin, 2006 ND 40, ¶ 18. The district
court’s findings are inadequate to understand the basis for the decision and we
remand for the court to make specific findings. See Goetz v. Goetz, 2023 ND 53,
3
¶ 9 (remanding when the district court fails to make sufficient findings that
enable this Court to understand the factual basis for the court’s decision).
III
[¶9] The district court did not make sufficient findings of fact to permit
appellate review. We retain jurisdiction under N.D.R.App.P. 35(a)(3)(B) and
remand to the district court with instructions to make specific findings of fact
on the issue of whether Jerome Lowe had inflicted a fear of imminent domestic
violence.
[¶10] Jon J. Jensen, C.J.
Daniel J. Crothers
Lisa Fair McEvers
Jerod E. Tufte
Douglas A. Bahr
4