996 N.W.2d 662
N.D.2023Background
- Hattie Albertson (petitioner) obtained a temporary disorderly conduct restraining order against Trenton Albertson (respondent) on December 19, 2022; it prohibited contact with Hattie and the parties’ three minor children.
- The district court scheduled a hearing within 14 days, which occurred on December 29, 2022.
- Trenton appeared pro se and, at the start of the hearing, requested a continuance, stating he had only spoken with an attorney that morning. The court denied the continuance and proceeded.
- At the conclusion of the hearing the court granted a one-year disorderly conduct restraining order as to Hattie and one minor child (C.W.A.), but denied it as to the other two children.
- The written order incorporated on-the-record findings but did not identify the specific intrusive or unwanted acts constituting disorderly conduct. Trenton appealed, seeking reversal and attorney’s fees.
- The Supreme Court affirmed denial of the continuance, remanded for specific factual findings under N.D.R.Civ.P. 52(a), and denied Trenton’s request for attorney’s fees.
Issues
| Issue | Petitioner (Hattie) Argument | Respondent (Trenton) Argument | Held |
|---|---|---|---|
| Whether the district court abused its discretion by denying Trenton’s continuance request | The court acted within its broad discretion and complied with the 14‑day statutory timeline for disorderly conduct hearings | Trenton had only just contacted counsel that morning and the holiday impeded timely counsel retention; he needed a continuance to prepare | Court did not abuse its discretion; nine days elapsed between service and hearing and Trenton showed no effort to secure counsel before the hearing |
| Whether the district court’s findings were sufficient to support a disorderly conduct restraining order | The temporary order and hearing record supported issuance as to Hattie and C.W.A.; denying as to two children shows discretion was applied | The court failed to identify the specific intrusive or unwanted acts required by N.D.C.C. § 12.1‑31.2‑01(1) and Rule 52(a), preventing meaningful appellate review | Court abused no discretion in hearing schedule but did not make the required specific factual findings; remanded for specific findings under Rule 52(a) |
| Whether Trenton is entitled to attorney’s fees on appeal | Trenton argued the petition was unwarranted and sought fees under N.D.C.C. § 28‑26‑01 and N.D.R.App.P. 38 | Hattie argued no frivolous pleading finding was made and Rule 38 sanctions are discretionary and limited to frivolous appeals or dilatory conduct | Denied: no district-court finding of frivolousness (required for § 28‑26‑01), and this Court declined to award fees under Rule 38 because the appeal was not frivolous or dilatory |
Key Cases Cited
- Avery v. Boysen, 945 N.W.2d 314 (N.D. 2020) (district courts have broad discretion on continuances)
- Pinkney v. State, 963 N.W.2d 737 (N.D. 2021) (standard for abuse of discretion)
- Kenny v. State, 932 N.W.2d 516 (N.D. 2019) (disorderly conduct restraining orders create special summary proceeding)
- Hanisch v. Kroshus, 827 N.W.2d 528 (N.D. 2013) (standard of review for restraining orders)
- Rekow v. Durheim, 980 N.W.2d 917 (N.D. 2022) (Rule 52(a) requires specific factual findings in bench proceedings)
- Combs v. Lund, 858 N.W.2d 311 (N.D. 2015) (Rule 52(a) applies to disorderly conduct restraining orders)
- Schrodt v. Schrodt, 971 N.W.2d 861 (N.D. 2022) (affirming denial of continuance where party failed to secure substitute counsel)
- Strand v. Cass County, 753 N.W.2d 872 (N.D. 2008) (statutory attorney’s fees require district‑court finding of frivolousness)
- Rolfstad, Winkjer, Suess, McKennett & Kaiser, P. C. v. Hanson, 221 N.W.2d 734 (N.D. 1974) (Rule 52 governs nonjury trials)
- Buchholz v. Buchholz, 982 N.W.2d 275 (N.D. 2022) (definition of frivolous appeal for appellate sanctions)