Niska v. Falconer
824 N.W.2d 778
| N.D. | 2012Background
- Niska petitioned for a domestic violence protection order against Falconer in March 2012 based on past conduct and fear for the child.
- The 2012 hearing covered a 2005 incident, a 2010 home-visit incident, and ongoing contact between Falconer and Niska after Falconer's imprisonment.
- The referee granted a temporary order and later issued a final order prohibiting Falconer within 500 feet, awarding Niska temporary custody, and scheduling exchanges through Falconer’s mother.
- The referee orally found domestic violence occurred in 2005 and that Falconer did not act in self-defense; no explicit contemporaneous harm or fear findings were entered.
- Falconer argued the 2005 incident was too remote, that he acted in self-defense, and that the order was a misuse to affect visitation; on appeal the court remanded for adequate findings.
- The panel held the referee’s findings were insufficient to support the basis of the decision and remanded for more explicit findings.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Was the DV order supported by a showing of actual or imminent domestic violence? | Falconer: 2005 incident too stale to justify current order; self-defense alleged. | Niska: no statute of limitations; history and fear support ongoing risk. | Remand for adequate findings; not clearly erroneous at this stage |
| Were the referee's findings sufficient to explain the basis for the DV determination? | Falconer: findings are vague; no explicit harm or fear findings besides 2005 incident. | Niska: testimony supports threat; court should have allowed the order. | Remand required for explicit, contemporaneous findings of harm or fear |
| Did the court properly apply fear and imminence standards in determining domestic violence? | Falconer: fear-based finding based on past events cannot sustain current order. | Niska: fear and past abuse context support imminent risk of harm. | Remand to clarify application of imminence and fear standard |
Key Cases Cited
- Lenton v. Lenton, 2010 ND 125 (2010) (past abuse with threats requires imminent fear to support DV)
- Hanneman v. Nygaard, 2010 ND 113 (2010) (need explicit factual basis beyond a form check for credibility)
- Ficklin v. Ficklin, 2006 ND 40 (2006) (fear must be of imminent harm when DV is premised on fear)
- Wolt v. Wolt, 2010 ND 33 (2010) (clarifies imminence standard for fear-based DV findings)
- Rothberg v. Rothberg, 2006 ND 65 (2006) (findings must be sufficiently specific to support appellate review)