Kathleen TIBOR, n/k/a Kathleen Zich, Applicant and Appellee, v. Lorna LUND, Respondent and Appellant.
No. 990086
Supreme Court of North Dakota.
Aug. 30, 1999.
1999 ND 176 | 601 N.W.2d 239
[¶ 31] Jose testified in a deposition:
Q. Have you, yourself, used that term in talking with any potential em-ployers? Have you said, “I was fired for breach of trust“?
A. I don‘t recall.
Q. Now, are you saying that you don‘t remember whether you did it or are you saying you didn‘t do it?
A. I don‘t recall whether I used the term in talking to an employer; no.
....
Q. Have you explained to your em-ployers why you were fired at Norwest?
A. Yes, I have.
Q. And what have you told them? First of all, let me ask you this: When you were hired at Kirkwood Bank, did you explain to somebody at Kirkwood Bank why you were fired at Norwest?
A. Yes.
Q. And what did you tell them?
A. Basically, we reran the entire in-vestigation and the look in the file and, I do believe, disclosed the terms—the rea-sons that the—the two reasons that were used, violation of code of ethics and breach of trust.
....
Q. And who did you talk to at Kirk-wood Bank?
A. Gerald Willer.
Q. And you explained to Mr. Willer that you had looked into the file that had been taken out of Terry Ness‘s desk.
A. That‘s correct.
Q. And Gerald Willer, of course, is the one that hired you as a trust officer, is he not?
A. That is correct.
Q. Did you explain to any other em-ployers the reason for your termination? I‘m sorry. Any other potential employ-ers the reason for your termination.
A. I know it was discussed. I couldn‘t cite exactly who and who not, depending on the degree of discussions we had got into.
Q. As you sit here today, can you recall any people to whom you talked about the reason for your termination?
A. No.
Although Jose testified he mentioned “breach of trust” and “breach of the code of ethics” to one prospective employer, even if we assume there was “compulsion” from this equivocal testimony, the prospec-tive employer to whom Jose communicated the allegedly defamatory reasons hired Jose. Therefore, there is no inference of damage arising from that communication.
[¶ 32] Because Jose and Beiswanger failed to present evidence supporting the elements necessary to establish a claim of compelled self-publication, we conclude the trial court did not err in dismissing this defamation claim.
III
[¶ 33] We conclude there are no genuine issues of material fact precluding summary judgment. The summary judgment is af-firmed.
[¶ 34] VANDE WALLE, C.J., MARING and KAPSNER, JJ., and JOHN C. MCCLINTOCK, D.J., concur.
[¶ 35] JOHN C. MCCLINTOCK, JR., D. J., sitting in place of SANDSTROM, J., disqualified.
Melissa A. Hauer, Wheeler Wolf, Bis-marck, ND, for applicant and appellee.
MARING, Justice.
[¶ 1] Lorna Lund appealed from a dis-trict court order granting Kathy Zich‘s motion for a disorderly conduct restraining order. We reverse and vacate the re-straining order.
[¶ 2] Kathy Zich and Bryan Tibor were married in 1986 and divorced in 1995. Un-der the terms of the original divorce judg-ment, Kathy and Bryan shared legal and physical custody of their three daughters. In 1997 the divorce judgment was amend-ed, designating Kathy as primary custodi-an, but with Bryan entitled to physical custody “for significant amounts of time.” Tibor v. Zich, 1999 ND 150, ¶¶ 3, 7, 598 N.W.2d 480.
[¶ 4] In February 1999 Kathy sought a disorderly conduct restraining order against Lorna. Her petition alleged Lorna had been advised to have no contact with the children, but Lorna had attempted to see the children on two occasions. On the first occasion, on December 26, 1998, Lor-na was present at Bryan‘s home while the children were visiting there. On the sec-ond occasion, in January 1999, Lorna stopped at the children‘s daycare in an attempt to visit the children, but they were not there.
[¶ 5] Following a hearing, the district court found there were reasonable grounds to believe Lorna had engaged in disorderly conduct by initiating unwanted contacts with the Tibor children. The court issued a disorderly conduct restraining order pro-hibiting Lund from contacting the children or Kathy personally, by phone, or in writ-ing, or from being within 100 feet of the children or Kathy. Lorna appealed.
[¶ 6] Under
“Disorderly conduct” means intrusive or unwanted acts, words, or gestures that are intended to adversely affect the safe-ty, security, or privacy of another per-son. Disorderly conduct does not in-clude constitutionally protected activity.
The statute empowers the court to restrain further criminal acts, and “[t]he statutory authority to enjoin these criminal acts pro-vides the sole basis for” issuance of a disorderly conduct restraining order. Svedberg v. Stamness, 525 N.W.2d 678, 681 (N.D. 1994).
[¶ 7] We have concluded that “reasonable grounds” is synonymous with “probable cause.” Id. at 681-82. Thus, for purposes of
[¶ 8] The trial court found there were reasonable grounds to believe Lorna had engaged in disorderly conduct because her contacts with the children were “unwant-ed.” Kathy asserts that, after being ad-vised she should not see the children,1 Lorna‘s one contact and one attempted contact with the children constitute disor-derly conduct under the statute.
[¶ 9] In order to support a disor-derly conduct restraining order under
[¶ 10] Lorna‘s conduct must be viewed in context. She had known these children for more than eight years. She had been their stepmother and had spent an extensive amount of time with them as members of the same family. Although she had divorced Bryan, at the time of these contacts she and Bryan were seeing each other again and attempting to “work things out.” The first alleged unwanted act occurred on the day after Christmas of 1998, when Lorna was visiting Bryan and the children were dropped off for their scheduled visitation. The second occurred a few weeks later when Lorna, on her way home to Fargo after visiting Bryan, and with Bryan‘s knowledge, briefly stopped at the daycare center to attempt to see the children.
[¶ 11] Nothing in the circumstances of Lorna‘s acts demonstrates an intent to adversely affect the safety, security, or privacy of the children. Lorna was not a stranger to the children, and there was no evidence the children feared her. Her conduct was not threatening, harassing, or intimidating. See Wishnatsky, 1997 ND 35, ¶ 15, 560 N.W.2d 878; Svedberg, 525 N.W.2d at 679-80, 682. Nor was there evidence Lorna‘s conduct had become a “pattern of intimidation.” See Cave v. Wetzel, 545 N.W.2d 149, 150 (N.D. 1996).
[¶ 12] We have previously cautioned that “[i]t is not enough under the statute that the petitioner for a restraining order wants the other person out of the petition-er‘s life.” Williams, 536 N.W.2d at 385. The result urged by Kathy trivializes the statute, making it applicable any time a person decides she or her children should not be in contact with a particular person, even in the absence of threats, fear, harassment, intimidation, or a pattern of conduct. Absent a showing of an intent to adversely affect the safety, security, or privacy of another person, evidenced by threatening, harassing, intimidating, or re-peated or past conduct, one‘s “mere pres-ence” does not constitute disorderly con-duct. See id.
[¶ 13] We are mindful of the precedent we would set were we to accept Kathy‘s argument and affirm this order. It is not hard to imagine that our trial courts would be inundated with petitions for disorderly conduct restraining orders from custodial parents seeking to limit contacts by other persons with the children. Experience tells us that it is far from uncommon for the divorced custodial parent to disapprove of the ex-spouse‘s new girlfriend, new boy-friend, or new spouse. The same may often be true of the custodial parent‘s view of the ex-spouse‘s family and friends. Certainly it was not the intent of the legis-lature to authorize a disorderly conduct restraining order whenever a custodial parent decides that he or she does not want the children to be in contact with a particular person in the ex-spouse‘s circle of acquaintances. Were we to adopt Ka-thy‘s argument, we would be opening the floodgates to further complexities in di-vorce cases. Resolving conflicts in di-vorced families, and effecting meaningful visitation with minimal discord, is difficult enough without adding this statute as a routine weapon to the arsenal of ex-spous-es.
[¶ 14] We conclude Lorna‘s “unwanted” contacts with the children did not, as a matter of law, constitute disorderly con-duct under
[¶ 15] Although not cited by the trial court as a basis for its order, Kathy as-serts there was evidence of specific harm to the children caused by Lorna‘s contacts. Kathy alleges Bryan‘s abuse of Lorna in front of the children was detrimental to them, and therefore Lorna‘s presence with Bryan and the children constitutes disor-derly conduct.
[¶ 16] There is no allegation that Lorna has ever abused Bryan or the children, only that Bryan‘s abuse of Lorna has ad-versely affected the children. In essence, Kathy is asserting Lorna is guilty of disor-
[¶ 17] While it may be true that Bryan‘s alleged abuse of Lorna is harmful to the children, it is Bryan‘s conduct, not Lorna‘s. It certainly is not evidence that Lorna has committed acts which constitute the of-fense of disorderly conduct. See Wishnat-sky, 1997 ND 35, ¶ 14, 560 N.W.2d 878; Svedberg, 525 N.W.2d at 682. If Kathy is concerned about the effects of alleged abuse committed in the children‘s pres-ence, the proper remedy is to seek restric-tions or conditions upon Bryan‘s visitation, not to saddle Lorna, the alleged victim, with the stigma of a disorderly conduct restraining order. A copy of the restrain-ing order is sent to local law enforcement agencies, which are authorized to dissemi-nate the information to all of their officers.
[¶ 18] We hold, as a matter of law, Lor-na‘s conduct did not constitute disorderly conduct justifying issuance of a restraining order under
[¶ 19] KAPSNER, NEUMANN and RONALD L. HILDEN, D.J., concur.
[¶ 20] RONALD L. HILDEN, D. J., sitting in place of SANDSTROM, J., disqualified.
VANDE WALLE, Chief Justice, concurring specially.
[¶ 21] The majority opinion analyzes the circumstances of the case from the stand-point of the person who is the object of the disorderly conduct restraining order. Un-der the facts of this case, I do not disagree with the majority‘s analysis and, in partic-ular, I agree with ¶¶ 16 and 17 in which the majority firmly rejects the suggestion Bryan‘s abuse of Lorna is an appropriate basis for the order. I write separately, however, because I am concerned with the majority‘s analysis of reasonable grounds as applied to the visit to the daycare cen-ter.
[¶ 22] I need not cite the numerous cases, reported in opinions of the courts of various jurisdictions and in the media, in which children have been “snatched” from a school setting by someone purporting to be a friend, relative, or parent of the child. In some instances the person is a friend or relative and often may be the noncustodial parent. Absent an open invitation by the school to visit on a particular day, such as grandparents day, I view such visits with suspicion. A friend or relative, or even a noncustodial parent, who finds it necessary to visit the children at a daycare or a school creates sufficient “probable cause” to, in my mind, believe the person knows their visit is unwanted by the custodial parent(s) of the child. Furthermore, the all too-common experience of child snatch-ing from schools may, of itself, be suffi-cient to create a reasonable grounds to believe the person may intend to adversely affect the safety, privacy, and security of the child and the custodial parent.
[¶ 23] I agree with the majority we should be concerned with precedent and not trivialize the statute; but experience also suggests there is reason to view these contacts made at daycare centers and
[¶ 24] Gerald W. VandeWalle, C.J.