994 N.W.2d 177
N.D.2023Background:
- In Sept. 2022 Lori Legacie-Lowe petitioned for a 12-month domestic violence protection order (DVPO) against Jerome Lowe, alleging verbal abuse, threatening statements, and that he threw a chainsaw which missed her by about three feet.
- Lori testified she feared Jerome, now carries a handgun, installed cameras, and has sleep problems due to that fear.
- The district court granted the DVPO; Jerome appealed arguing Lori failed to show actual or imminent domestic violence and the court’s findings were insufficient.
- This Court remanded for more detailed findings; on remand the district court added findings about the chainsaw incident, Jerome’s statements (e.g., “I have a hole, but I don’t have a dead body yet”), throwing cattle panels, and verbal abuse, and again entered the DVPO.
- The Supreme Court majority affirmed, reasoning the physical act of throwing the chainsaw plus relationship context reasonably supported fear of imminent physical harm; Justice Crothers dissented, arguing the facts did not meet the statutory requirement of fear of imminent harm and would have reversed.
Issues:
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether evidence proved actual or imminent domestic violence under N.D.C.C. § 14-07.1-02(4) | Chainsaw thrown near Lori, verbal threats, prior angry conduct and context show a reasonable fear of imminent harm | Incidents were ambiguous, non-directed, and not imminent threats; mostly verbal abuse and property-throwing, not conduct placing Lori in fear of imminent physical harm | Affirmed: physical act (chainsaw) plus context supports finding of domestic violence; not clearly erroneous |
| Whether fear-based claims require imminence and how context/past conduct weigh | Past violent or threatening acts and relationship context bear on imminence; here context + act show imminent danger | The statements were vague or speculative and do not demonstrate an imminent threat under the statute | Court reiterated imminence definition; distinguished Ficklin — a direct physical act producing immediate fear supports imminence |
Key Cases Cited
- Frisk v. Frisk, 703 N.W.2d 341 (N.D. 2005) (finding of domestic violence is a factual determination reviewed for clear error)
- Lovcik v. Ellingson, 569 N.W.2d 697 (N.D. 1997) (past abusive behavior and context are relevant to imminent danger analysis)
- Ficklin v. Ficklin, 710 N.W.2d 387 (N.D. 2006) (threats that merely express a future possibility may not be imminent)
- Steckler v. Steckler, 492 N.W.2d 76 (N.D. 1992) (definitions of "imminent" and "actual" risk)
- Lenton v. Lenton, 784 N.W.2d 131 (N.D. 2010) (fear-based DVPOs require fear of imminent physical harm)
- Wolt v. Wolt, 778 N.W.2d 802 (N.D. 2010) (reaffirming imminence requirement for fear-based orders)
- Cesare v. Cesare, 713 A.2d 390 (N.J. 1998) (relationship context is relevant when assessing risk of future violence)