Hattie Albertson, Petitioner and Appellee v. Trent Albertson, Respondent and Appellant
No. 20230034
IN THE SUPREME COURT STATE OF NORTH DAKOTA
OCTOBER 11, 2023
2023 ND 191
Opinion of the Court by Bahr, Justice.
Erin M. Conroy, Bottineau, ND, for petitioner and appellee.
Gregory W. Liebl (argued) and Priscila A. Ulloa (on brief), Fargo, ND, for respondent and appellant.
Albertson v. Albertson
No. 20230034
Bahr, Justice.
[¶1] Trenton Albertson appeals from a disorderly conduct restraining order directing he have no contact with Hattie Albertson and C.W.A., a minor child of Trenton Albertson and Hattie Albertson, for a one-year period. We conclude the district court did not abuse its discretion by denying Trenton Albertson‘s request for a continuance. Because the district court did not make findings of fact to explain the factual basis for granting the disorderly conduct restraining order, we retain jurisdiction under
I
[¶2] Trenton Albertson and Hattie Albertson were divorced in November 2021. They have three minor children, one of whom is C.W.A. In the divorce, the parties stipulated to sharing equal residential responsibility for their children.
[¶3] On December 19, 2022, Hattie Albertson filed for a restraining order against Trenton Albertson. The district court issued a temporary disorderly conduct restraining order on the same day. The temporary disorderly conduct restraining order directed Trenton Albertson not to have contact with Hattie Albertson and their three minor children. A deputy sheriff served Trenton Albertson with the temporary disorderly conduct restraining order the evening of December 19, 2022. As noticed in the temporary disorderly conduct restraining order, the court held a hearing on December 29, 2022 to consider whether the temporary disorderly conduct restraining order should be extended.
[¶4] Hattie Albertson appeared at the December 29, 2022 hearing with her attorney. Trenton Albertson appeared at the hearing without an attorney. At the start of the hearing, Trenton Albertson requested a continuance. He explained, “Your Honor, I only spoke with counsel this morning. He advised me to seek a continuation in this.” In response to the district court‘s question, “You‘ve talked to an attorney?,” Trenton Albertson responded, “Just this morning, yes.” Trenton Albertson then identified the attorney. Hattie Albertson‘s counsel informed the court she has not been notified the identified attorney represents Trenton Albertson. After noting the court has not received an e-mail regarding the attorney‘s representation, the court denied Trenton Albertson‘s request
[¶5] Utilizing a standard disorderly conduct restraining order form, the district court entered an order against Trenton Albertson incorporating its findings on the record as the basis for its decision.
II
[¶6] Trenton Albertson argues the district court abused its discretion in denying his request for a continuance. We disagree.
[¶7] Courts have broad discretion when deciding whether to grant a continuance. Avery v. Boysen, 2020 ND 131, ¶ 14, 945 N.W.2d 314. A motion for a continuance will be granted only if the movant shows good cause.
[¶8] A disorderly conduct restraining order is available under
[¶9] Here, the temporary disorderly conduct restraining order was served on Trenton Albertson on December 19, 2022. The district court held a full hearing on December 29. Trenton Albertson had nine days to obtain counsel for the hearing. Trenton Albertson claims the intervening Christmas holiday made it difficult to secure counsel. However, Christmas was on a Sunday in 2022. Moreover, Trenton Albertson did not speak with counsel until the morning of the hearing, and did not provide any information indicating he attempted to contact counsel prior to the date of the hearing.
[¶10] Trenton Albertson claims the district court erred by not granting a continuance under
[¶11] Based on the record, Trenton Albertson did not provide good cause to the district court for a continuance, and the court did not abuse its discretion by proceeding with the hearing as scheduled. See Schrodt v. Schrodt, 2022 ND 64, ¶ 10, 971 N.W.2d 861 (affirming the denial of a continuance when a party knew for a week their attorney was withdrawing and did not acquire substitute counsel before trial).
III
[¶12] Trenton Albertson argues the district court abused its discretion in
This Court will not reverse a district court‘s decision to grant a restraining order or to conduct a hearing absent an abuse of discretion. The district court abuses its discretion when it acts in an arbitrary, unreasonable, or unconscionable manner, when it misinterprets or misapplies the law, or when its decision is not the product of a rational mental process leading to a reasoned determination.
Hanisch v. Kroshus, 2013 ND 37, ¶ 9, 827 N.W.2d 528 (internal citations omitted).
[¶13] Disorderly conduct is defined as “intrusive or unwanted acts, words, or gestures that are intended to adversely affect the safety, security, or privacy of another person.”
[¶14] “Rule 52(a), N.D.R.Civ.P., applies to disorderly conduct restraining orders.” Combs v. Lund, 2015 ND 10, ¶ 17, 858 N.W.2d 311. As explained in Rekow v. Durheim, 2022 ND 177, ¶ 8, 980 N.W.2d 917:
In an action tried on the facts without a jury, the court must find the facts specially and state its conclusions of law separately. “Under
N.D.R.Civ.P. 52(a) , a district court trying an action upon the facts without a jury ‘shall find the facts specially.’ A district court must make findings of fact that are sufficient to enable an appellate court to understand the factual determinations made by the district court and the basis for its conclusions of law.” A district court‘s findings of fact should be stated with sufficient specificity to assist the appellate court‘s review and to afford a clear understanding of the district court‘s decision. Findings that do not specifically identify intrusive or unwanted acts that were intended to affect the safety, security, or privacy of another are inadequate.
(Internal citations omitted.)
[¶15] The district court‘s findings did not identify Trenton Albertson‘s intrusive or unwanted acts intended to affect the safety, security, or privacy of Hattie Albertson or C.W.A. The court simply stated it finds disorderly conduct as to Hattie Albertson and C.W.A., but not as to the other two children, explaining, “I don‘t really see any evidence regarding the two other children.”
[¶16] The only finding Hattie Albertson identifies is the district court‘s statement it would find probable cause for a terrorizing charge. When advising Trenton Albertson of his right to testify and his Fifth Amendment right not to testify, the court explained the definition of the criminal offense of terrorizing and stated:
If this was a criminal court—I‘m telling you right now, in all fairness to you, if this was a criminal court and we had what we call a probable cause hearing, which means that a crime may more likely than not had occurred, I would find probable cause because of the—what I have heard. . . . [T]here is, I
think, probable cause for a terrorizing charge, at the very least.
[¶17] The district court‘s statement is in the context of advising Trenton Albertson of his right to testify or not to testify, not to explain the factual basis for granting the disorderly conduct restraining order. Moreover, the court‘s statement is conclusory; the court did not specifically identify what facts would support probable cause for a terrorizing charge or whether the elements of a terrorizing charge are the same as or overlap the requirements to find disorderly conduct.
[¶18] The district court did not comply with the requirements of
IV
[¶19] Trenton Albertson requests this Court award him attorney‘s fees under
[¶20] “The plain language of [
[¶21] This Court may award attorney‘s fees and costs under
[¶22] We deny Trenton Albertson‘s request for attorney‘s fees.
V
[¶23] We conclude the district court did not abuse its discretion by denying Trenton Albertson‘s request for a continuance. We further conclude the court did not make findings of fact sufficient to permit appellate review. We retain jurisdiction under
[¶24] Jon J. Jensen, C.J.
Daniel J. Crothers
Lisa Fair McEvers
Jerod E. Tufte
Douglas A. Bahr