Lindstaedt v. George

FILED
IN THE OFFICE OF THE
CLERK OF SUPREME COURT
DECEMBER 17, 2020
STATE OF NORTH DAKOTA
IN THE SUPREME COURT
STATE OF NORTH DAKOTA
2020 ND 262Nicole A. Lindstaedt, Petitioner
v.
Terry F. George, Respondent and Appellant
No. 20200127
Appeal from the District Court of Stutsman County, Southeast Judicial
District, the Honorable Mark T. Blumer, Judge.
AFFIRMED.
Opinion of the Court by Tufte, Justice.
Nicole A. Lindstaedt, petitioner; no appearance.
Kara E. Brinster, Carrington, N.D., for respondent and appellant; submitted
on brief.
Lindstaedt v. George
No. 20200127
Tufte, Justice.
[¶1] Terry F. George appeals a domestic violence protection order entered
against him, claiming the district court erred, without properly explaining the
factual basis for its decision, in finding that a preponderance of the evidence
supported that actual or imminent domestic violence had or would occur. We
affirm the domestic violence protection order.
I
[¶2] Nicole A. Lindstaedt and George were in a dating relationship for
approximately four years. They lived together and had a child in common. In
February 2020, Lindstaedt petitioned for a domestic violence protection order
against George. She alleged George choked her, punched her, threatened to kill
her, and forced her to have sex with him. After a hearing, the district court
found George had committed domestic violence and issued a protection order
against him. The order prohibited George from having contact with Lindstaedt
for two years.
II
[¶3] “A district court’s finding of domestic violence is a finding of fact that will
not be overturned unless it is clearly erroneous.” Ficklin v. Ficklin, 2006 ND
40, ¶ 11, 710 N.W.2d 387. “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, the reviewing court is left with a definite and firm conviction a mistake
has been made.” Lovcik v. Ellingson, 1997 ND 201, ¶ 10, 569 N.W.2d 697.
“Whether the [district] court has misinterpreted the domestic violence statute
is a question of law that is fully reviewable on appeal.” Ficklin, at ¶ 11.
[¶4] “The party seeking the protective order must prove actual or imminent
domestic violence by a preponderance of the evidence.” Lovcik, 1997 ND 201,
¶ 11. A relevant factor to consider is past abusive behavior, but it is not
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dispositive. Id. at ¶ 16. Another relevant factor is the context and history of
the relationship between the parties. Ficklin, 2006 ND 40, ¶ 12.
[¶5] There must be a “showing of actual or imminent domestic violence”
before a court may enter a protection order. N.D.C.C. § 14-07.1-02(4).
“Domestic violence” is statutorily defined under N.D.C.C. § 14-07.1-01(2) as
including:
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.
A district court trying an action upon the facts without a jury “must find the
facts specially.” N.D.R.Civ.P. 52(a)(1). A district court must make findings of
fact sufficient to enable an appellate court to understand the factual
determinations made by it and the basis for its conclusions of law. Hanneman
v. Nygaard, 2010 ND 113, ¶ 19, 784 N.W.2d 117. When there is conflicting or
disputed evidence, detailed findings are particularly important because this
Court defers to a district court’s choice between two permissible views of the
evidence and the district court decides issues of credibility. See Cass County
State’s Attorney v. R.A.S. (In re R.A.S.), 2008 ND 185, ¶ 8, 756 N.W.2d 771.
[¶6] The domestic violence protection order findings of fact state only that the
acts constituting domestic violence were “[r]ecent physical and verbal assaults
as testified to on the record. And for the reasons stated on the record.” “When
a district court makes its detailed findings on the record, a written order need
not repeat all findings.” Clarke v. Taylor, 2019 ND 251, ¶ 9, 934 N.W.2d 414.
On the record, the district court found that “[s]he testify [sic] that he choked or
threatened to kill her; hit her, had nonconsensual sex with her.” The court
further stated that “. . . when he came back, she was packing things to leave.
She wanted out of there. So with his testimony, I feel like somewhat
corroborates that she wanted to leave.” The court did not address the testimony
of George’s witness, Jason Burndt, which directly contradicted some of
Lindstaedt’s testimony as to when the domestic violence occurred. George
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argues “[t]he court erred egregiously in determining the credibility of
Lindstaedt at the hearing.” The court granted the protection order based in
part upon recent events of verbal and physical abuse, so the court must have
found her testimony to be credible. Odden v. Rath, 2007 ND 51, ¶ 22, 730
N.W.2d 590. This Court “give[s] great deference to a factfinder’s opportunity to
observe the witnesses and determine credibility.” Id. “We will not reexamine
findings of fact made by the trial court upon conflicting evidence, and a choice
between two permissible views of the weight of the evidence is not clearly
erroneous.” Buzick v. Buzick, 542 N.W.2d 756, 758 (N.D. 1996). “[T]his Court
will not reverse simply because it may have viewed the evidence differently.”
See Swanson v. Swanson, 2019 ND 25, ¶ 5, 921 N.W.2d 666 (citing Rebel v.
Rebel, 2013 ND 116, ¶ 9, 833 N.W.2d 442). Although the court’s findings lack
specificity, we understand the rationale for its decision that George committed
domestic violence. Clarke, 2019 ND 251, ¶ 11.
III
[¶7] We conclude the district court’s finding of domestic violence was not
induced by an erroneous view of the law, nor are we left with a definite and
firm conviction a mistake has been made. Our review of the record shows that
Lindstaedt presented sufficient evidence for the district court to find domestic
violence by recent physical harm and nonconsensual sex. We affirm the
domestic violence protection order.
[¶8] Jon J. Jensen, C.J.
Gerald W. VandeWalle
Daniel J. Crothers
Lisa Fair McEvers
Jerod E. Tufte
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