Carey Mead, Petitioner and Appellee v. Mark Robert Hatzenbeller, Respondent and Appellant
No. 20230185
IN THE SUPREME COURT STATE OF NORTH DAKOTA
DECEMBER 28, 2023
2023 ND 248
Opinion of the Court by Crothers, Justice.
AFFIRMED.
Joel M. Fremstad, Fargo, ND, for petitioner and appellee; submitted on brief.
Madison D. Marchus (argued), Tatum O‘Brien and Sara Monson (on brief), Fargo, ND, for respondent and appellant.
Mead v. Hatzenbeller
No. 20230185
Crothers, Justice.
[¶1] Mark Hatzenbeller appeals from a disorderly conduct restraining order. We affirm, concluding the district court did not abuse its discretion or violate Hatzenbeller‘s right to due process when it issued the restraining order. We decline to address issues concerning the temporary restraining order because they are moot.
I
[¶2] On April 26, 2023, Carey Mead filed a petition for a disorderly conduct restraining order against Hatzenbeller. The petition alleged:
“Please see Case No. 09-2022-CR-03212. Mark Hatzenbeller plead guilty to Disorderly Conduct Harassmеnt on 12/5/2022. Part of the conditions of the probation was he should have no contact with Carey or [her husband,] Michael J. Mead. Mark Hatzenbeller continues to initiate unnecessary interactions. The current status does not allow for any criminal consequences for initiating contact and offers no protеction for the victims in this case. Hatzenbeller has no probation officer to revoke probation. This attempt for contact has significantly worsened to cause the victims to have concern for our safety and security. We have already exhausted all civil options and are left with nothing elsе. He is [sic] neighbor next door.”
Mead‘s husband is not named as a petitioner. An order deferring imposition of Hatzenbeller‘s sentence for disorderly conduct-harassment was attached to the petition along with the register of actions for the criminal case.
[¶3] The district court issued a temporary restraining ordеr and set a hearing. At the hearing, Mead and Hatzenbeller appeared in person with counsel. Mead moved for judgment on the pleadings, arguing Hatzenbeller‘s criminal conviction was sufficient to prove he engaged in disorderly conduct. Hatzenbeller moved to dismiss, arguing the petition was insufficient because it lacked specificity. The court denied both motions. The court ruled the petition‘s reference to Hatzenbeller‘s criminal conviction was sufficiently specific to survive dismissal. The court also ruled judgment on the pleadings was inappropriate because Hatzenbeller had a due process right to a full hearing.
[¶4] The district court took judicial notice of the criminal disorderly conduct proceeding against Hatzenbeller, stating:
“I have reviewed 09-2022-CR-3212. I will make a specific finding that it is a criminal matter, there is a criminal conviction. . . . [M]y familiarity with the criminal
process would include that there is a sufficient factual basis established to meet all of the elements necessary for a criminal conviction and that the defendant in this case, who is the same individual named, pled guilty to the crime of disorderly conduct. . . .”
Mead did not offer additional evidence. Hatzenbeller testified he pleaded guilty to disorderly conduct aftеr an incident occurred between him and the Meads, the conduct occurred in the spring of 2022, he was the Meads’ next door neighbor, and they live in a “very small” town.
[¶5] The district court found Hatzenbeller‘s criminal conviction was sufficient evidence to prove he engaged in disorderly conduct. The court directed the parties to negotiate specific restrictions for a restraining order and submit a proposed order. The court informed the parties it intended to include Mead‘s husband as a protected party because he was identified as a victim in the criminal action. On May 25, 2023, the court issued a one-year disorderly conduct restraining order that prohibited Hatzenbeller from having contact with the Meads. Hatzenbeller appeals.
II
[¶6] Hatzenbeller argues the district court erred when it granted the temporary restraining order because the allegations in Mead‘s petition were generalized, vague, and insufficient tо support issuance of a temporary restraining order.
[¶7] A temporary restraining order is a type of injunction that is brief in duration and meant to maintain the status quo until the district court can make a determination on the merits of a petition. State v. Kenny, 2019 ND 218, ¶ 9, 932 N.W.2d 516. A temporary restraining order ceases to have any effect оnce a final disorderly conduct restraining order is issued.
[¶8] In Gonzalez v. Witzke, 2012 ND 60, ¶¶ 9-13, 813 N.W.2d 592, this Court addressed arguments concerning the propriety of a temporary restraining order in an appeal from a final disorderly conduct restraining order. Although the Court discussed the temporary order, it was not the order on appeal. Id. at 1, 27 (stating the final restraining order was on appeal and affirming it). The Court‘s discussion of the temporary order was dicta because the temporary order had ceased to have any effect on the appellant and was superseded by the final restraining order. When events have occurred that make it impossible for this Court to issue relief, no actual controversy exists. Interest of M.R., 2022 ND 68, ¶ 3, 972 N.W.2d 94. This Court generally does not issue advisory opinions on moot issues. Id. We repudiate Gonzalez, ¶¶ 9-13, to the extent it suggests issues сoncerning a superceded temporary restraining order will be addressed on appeal absent an actual controversy.
[¶9] Here, after issuing a temporary restraining order based on the allegations in Mead‘s petition, the district court
III
[¶10] Hatzenbeller raises multiple issues concerning the final disorderly conduct restraining order. He argues the evidence is insufficient to support a finding he engaged in disorderly conduct; thе disorderly conduct alleged in the petition is not sufficiently recent; his due process right to a full hearing was violated; and the district court erred by including Mead‘s husband as a protected party.
[¶11] A petitioner for a disorderly conduct restraining order must show there are “reasonable grounds to believe that the respondent has engaged in disorderly conduct.”
[¶12] Whether to grant a disorderly conduct restraining order is left to the discretion of the district court. Hanisch v. Kroshus, 2013 ND 37, ¶ 9, 827 N.W.2d 528. We will not reverse a district court‘s decision to issue a disorderly conduct restraining order absent an abuse of discretion. Id. “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.” Id.
A
[¶13] Hatzenbeller argues Mead failed to offer specific evidence to support a finding he engaged in disorderly conduct. Hatzenbeller claims Mead only offered generalized allegations and no evidence рroves he engaged in conduct intending to adversely affect her safety, security, or privacy. Mead argues Hatzenbeller‘s criminal conviction for disorderly conduct is sufficient evidence to support issuance of the restraining order.
[¶14] “Disorderly conduct is analyzed in the same manner for both civil and criminal cases because the reasonable grounds for a restraining order are synonymous with probable cause for an arrest.” Hoggarth v. Kropp, 2010 ND 197, ¶ 14, 790 N.W.2d 22. The elements of criminal disorderly conduct by harassment are the same as those required to prove disorderly conduct in the context of a petition for a restraining order. Compare
[¶15] The district court took judicial notice of Hatzenbeller‘s criminal conviction for disorderly conduct. See
B
[¶16] Hatzenbeller argues there must be “some level of imminency” between the disorderly conduct and the restraining order.
C
[¶17] Hatzenbeller argues his right to a full hearing was violated because Mead presented no testimony and the district court relied only on his criminal conviction.
[¶18] A petitioner for a disorderly conduct restraining order must prove his case before the district court in a full hearing. Wetzel v. Schlenvogt, 2005 ND 190, ¶ 23, 705 N.W.2d 836. The “full hearing” contemplated by
[¶19] Mead‘s petition put Hatzenbeller on notice she was relying on his criminal conviction as grounds for a restraining order. The district court allowed Hatzenbeller to present evidence at the hearing. Hаtzenbeller testified and was cross-examined. Hatzenbeller had the opportunity to call Mead as a witness but declined to do so. The procedure employed by the district court gave Hatzenbeller notice of the claims against him and allowed him an adequate opportunity to respond. Seе Skadberg, 2002 ND 97, at ¶ 14 (“By accepting affidavits and allowing cross-examination, the district court conducted a full hearing on the disorderly conduct restraining order petition.“). Hatzenbeller has not established the court violated his due process right to a full and fair hearing.
D
[¶20] Hatzenbeller argues the district court erred when it included Meаd‘s husband as a protected party in the restraining order because he is not the petitioner and was not present at the hearing. Mead asserts Hatzenbeller waived this issue because he did not raise it in the district court.
[¶21] It is a well-settled rule that issues not adequately raised in the district court will not be addressed on appeal. State v. $44,140.00 U.S. Currency, 2012 ND 176, ¶ 7, 820 N.W.2d 697; see also In re R.A.S., 2008 ND 185, ¶ 12, 756 N.W.2d 771 (stating even constitutional issues will not be addressed for the first time on appeal).
“The purpose of an appeal is to review the actions of the trial court, not to grant the appellant an opportunity to develop and expound upon new strategies or theories. The requirement that a party first present an issue to the trial court, as a precondition to raising it on appeal, gives that court a meaningful opportunity to make a correct decision, contributes valuable input to the process, and develops the record for effective review оf the decision. It is fundamentally unfair to fault the trial court for failing to rule correctly on an issue it was never given the opportunity to consider. Accordingly, issues or contentions not raised . . . in the district court cannot be raised for the first time on appeal.”
Albertson v. Albertson, 2023 ND 225, ¶ 8, --- N.W.2d --- (alteration in original) (quoting Schrodt v. Schrodt, 2022 ND 64, ¶ 7, 971 N.W.2d 861).
[¶22] Mead‘s petition requested her husband be included in the restraining order and the district court, before issuing its written order, informed the parties Mead‘s husband would be included. The court stated: “[T]he two individuals which were acknowledged and specifically identified as victims . . . in the current order of the District Court in the criminal file as being part of the no contact order will be included in this disordеrly conduct restraining order.” Despite Mead requesting this relief and the court‘s statement that it intended to grant it, Hatzenbeller did not object or raise this as an issue in any fashion. Consequently, Hatzenbeller
IV
[¶23] The disorderly conduct restraining order is affirmed.
[¶24] Jon J. Jensen, C.J.
Daniel J. Crothers
Lisa Fair McEvers
Jerod E. Tufte
Douglas A. Bahr