Keita v. Keita
2012 ND 234
| N.D. | 2012Background
- Niska petitioned for a domestic violence protection order against Falconer in 2012, alleging imminent danger and a history of violence including a 2005 incident and post-prison conduct.
- The petition referenced Falconer’s 2012 release from prison for aggravated assault against Niska and claimed threats to kill her and fear for their child’s safety.
- Niska alleged a 2010 incident where Falconer tore a bedroom door off the hinges during a home visit.
- At the evidentiary hearing, Niska testified to ongoing fear, past abuse, and a 2005 incident; Falconer claimed Niska was the aggressor and that he acted in self-defense.
- The judicial referee granted a DV protection order lasting three years, awarding Niska temporary custody and establishing visitation exchanges via Falconer’s mother, and marked Falconer as a credible threat.
- Falconer appeals, arguing the order was based on an outdated incident, misapplied law, and a process used to punish him and affect visitation; the court reverses and remands for adequate findings.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Was there actual or imminent DV basis? | Niska: past 2005 DV and fear of imminent harm support DV. | Falconer: only stale 2005 incident; insufficient to show imminent harm now. | Remand for adequate factual findings; insufficient basis on record. |
| Were the findings sufficient to support DV under statute? | Niska: history and fear support DV; referee’s oral findings adequate. | Falconer: findings are vague; not enough to show actual or imminent DV. | Findings inadequate; remand required for explicit basis beyond the 2005 incident. |
| Did the court properly consider past abuse and relationship context? | Niska: past abuse and relationship history relevant to fear and imminent harm. | Falconer: past events insufficient without contemporaneous harm. | Court must include contemporaneous harm or fear of imminent harm in findings. |
| Did self-defense by Falconer negate DV findings? | Niska: no impact on necessity of DV order given ongoing risk. | Falconer: defense undermines DV finding; he acted in self-defense in 2005. | Remand to resolve conflicts in self-defense characterization and its impact on DV finding. |
Key Cases Cited
- Lenton v. Lenton, 2010 ND 125 (2010) (past abuse and threats; imminent fear required for DV)
- Hanneman v. Nygaard, 2010 ND 113 (2010) (requirements of findings; credibility box not always sufficient)
- Ficklin v. Ficklin, 2006 ND 40 (2006) (fear-based DV requires imminent harm)
- Wolt v. Wolt, 2010 ND 33 (2010) (domestic violence premised on fear must show imminent harm)
- Rothberg v. Rothberg, 2006 ND 65 (2006) (findings must be sufficiently specific for review)
- Lawrence v. Delkamp, 2000 ND 214 (2000) (review of whether district court misinterpreted DV statute)