Albertson v. Albertson , 2023 ND 225 ( 2023 )

FILED
IN THE OFFICE OF THE
CLERK OF SUPREME COURT
DECEMBER 1, 2023
STATE OF NORTH DAKOTA
IN THE SUPREME COURT
STATE OF NORTH DAKOTA
2023 ND 225Hattie Albertson, Petitioner and Appellee
v.
Trent Albertson, Respondent and Appellant
No. 20230034
Appeal from the District Court of Bottineau County, Northeast Judicial
District, the Honorable Michael P. Hurly, Judge.
AFFIRMED.
Opinion of the Court by Bahr, Justice.
Erin M. Conroy, Bottineau, ND, for petitioner and appellee.
Gregory W. Liebl (argued) and Priscila A. Ulloa (on brief), Fargo, ND, for
respondent and appellant.
Albertson v. Albertson
No. 20230034
Bahr, Justice.
[¶1] Trenton Albertson appealed from a disorderly conduct restraining order.
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. Albertson v. Albertson, 2023 ND 191, ¶ 1, 996 N.W.2d
662. Upon reviewing the district court’s findings on remand, we affirm the
disorderly conduct restraining order.
I
[¶2] The relevant facts are explained in Albertson, 2023 ND 191, ¶¶ 2-5. In
summary, Hattie Albertson filed for a disorderly conduct restraining order
against Trenton Albertson in December 2022. The district court granted a
disorderly conduct restraining order in favor of Hattie Albertson and their
minor child, C.W.A., for a period of one year. This Court remanded the case to
the district court to make additional findings and retained jurisdiction under
N.D.R.App.P. 35(a)(3)(B). On remand, the court made additional findings and
concluded the disorderly conduct restraining order should remain in place.
Neither Trenton Albertson nor Hattie Albertson requested supplemental
briefing or oral argument. See N.D.R.App.P. 35(a)(3)(B)(ii) (providing a party
may request supplemental briefing or oral argument within 14 days of
certification by the district court).
II
[¶3] 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
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product of a rational mental process leading to a reasoned
determination.
Rekow v. Durheim, 2022 ND 177, ¶ 6, 980 N.W.2d 917 (quoting Combs v. Lund,
2015 ND 10, ¶ 4, 858 N.W.2d 311). “This Court reviews findings of fact under
the clearly erroneous standard of review.” Bearce v. Yellowstone Energy Dev.,
2021 ND 143, ¶ 14, 963 N.W.2d 299; see N.D.R.Civ.P. 52(a)(6). “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.” Legacie-Lowe v. Lowe, 2023 ND 140,
¶ 4, 994 N.W.2d 177 (quoting Ficklin v. Ficklin, 2006 ND 40, ¶ 11, 710 N.W.2d
387).
[¶4] “A disorderly conduct restraining order may be granted when a
petitioner establishes, by reasonable grounds, that the respondent engaged in
disorderly conduct.” Rekow, 2022 ND 177, ¶ 7. “‘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). “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.’” Lehnerz v. Christopher, 2022 ND 122, ¶ 6, 975 N.W.2d 585(quoting Gonzalez v. Witzke, 2012 ND 60, ¶ 10, 813 N.W.2d 592).
[¶5] In the order on remand, the district court made adequate findings for
this Court to review the factual basis of its decision. See Combs, 2015 ND 10,
¶ 17 (“A district court’s findings are adequate if this Court can discern from
them the factual basis for the district court’s decision.” (quoting Niska v.
Falconer, 2012 ND 245, ¶ 10, 824 N.W.2d 778)). The court found Trenton
Albertson made multiple threatening phone calls over a period of two days,
starting at 3:00 a.m. the first day. The phone calls included threats to kill a
friend of C.W.A. and strong inferences of violence towards C.W.A. Trenton
Albertson also threatened “to come over to the home and kick the door in.”
Hattie Albertson packed up the children and “left the home due to fear and
belief [Trenton Albertson’s] threats were real.” The court heard the recorded
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phone calls, and found Trenton Albertson’s voice “is best characterized as
angry, elevated, and threatening violence on two young individuals.” The court
further found Trenton Albertson came to Hattie Albertson’s home, tried to open
the door, shook the door handle, and used his shoulder in an attempt to open
the door. The court found the testimony of Hattie Albertson, a neighbor’s eye
witness testimony, and the voice recordings of Trenton Albertson
“demonstrated that [Trenton Albertson’s] actions were not just idle threats.
[Trenton Albertson] was threating violence on a non-family member as well as
his own child [C.W.A.].” Trenton Albertson’s “phone calls threating violence
upon a local minor child along with his own child[,]” together with his “actions
of attempting to get into [Hattie Albertson’s] home[,]” is what ultimately led
the court to grant the restraining order. On review of these findings, we hold
the findings are not clearly erroneous, and the court did not abuse its discretion
in granting the disorderly conduct restraining order. See Jones v. Rath, 2023
ND 69, ¶ 18, 989 N.W.2d 92 (concluding the district court did not abuse its
discretion by granting the disorderly conduct restraining order despite the
court not using the word “intent” when the court’s findings left us with a clear
understanding the court found the respondent intended to adversely affect the
petitioner’s safety, security, or her privacy with his conduct).
III
[¶6] In his initial brief, Trenton Albertson argued the district court abused
its discretion by granting the disorderly conduct restraining order because,
according to Trenton Albertson, the disorderly conduct restraining order
effectively modified the residential responsibility schedule without a hearing
and consideration of the best interest factors set out in N.D.C.C. § 14-09-
06.2(1).
[¶7] The district court did not address this issue in its original order or its
order on remand. That is likely because Trenton Albertson did not raise the
issue at the district court. He did not argue to the court that the issuance of
the disorderly conduct restraining order would conflict with or was not
permitted because of the residential responsibility schedule.
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[¶8] This Court does not review issues which are raised for the first time on
appeal:
The purpose of an appeal is to review the actions of the trial court,
not to grant the appellant an opportunity to develop and expound
upon new strategies or theories. The requirement that a party first
present an issue to the trial court, as a precondition to raising it
on appeal, gives that court a meaningful opportunity to make a
correct decision, contributes valuable input to the process, and
develops the record for effective review of the decision. It is
fundamentally unfair to fault the trial court for failing to rule
correctly on an issue it was never given the opportunity to
consider. Accordingly, issues or contentions not raised . . . in the
district court cannot be raised for the first time on appeal.
Schrodt v. Schrodt, 2022 ND 64, ¶ 7, 971 N.W.2d 861 (quoting Cody v. Cody,
2019 ND 14, ¶ 15, 921 N.W.2d 679).
[¶9] We conclude Trenton Albertson did not preserve this issue for appeal and
decline to address it.
IV
[¶10] The district court did not abuse its discretion in granting the disorderly
conduct restraining order. We affirm the disorderly conduct restraining order.
[¶11] Jon J. Jensen, C.J.
Daniel J. Crothers
Lisa Fair McEvers
Jerod E. Tufte
Douglas A. Bahr
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