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Wolt v. Wolt

February 22, 2010

KATHY WOLT, PLAINTIFF AND APPELLEE
v.
STEVE WOLT, DEFENDANT AND APPELLANT



Appeal from the District Court of Morton County, South Central Judicial District, the Honorable Gail H. Hagerty, Judge.

The opinion of the court was delivered by: Kapsner, Justice

AFFIRMED.

[¶1] Steve Wolt appeals from a domestic violence protection order restraining him from contact with Kathy Wolt for two years until April 7, 2011. Because we conclude the district court did not err in denying Steve Wolt's motion to dismiss and did not err in granting the domestic violence protection order, we affirm.

I.

[¶2] This appeal stems from an order granting Kathy Wolt's petition for a domestic violence protection order. Kathy Wolt and Steve Wolt had been engaged in contentious divorce proceedings, culminating in a two- day trial in January 2009 and a final divorce judgment entered on March 16, 2009. In the divorce proceeding the district court issued a memorandum opinion, dated March 11, 2009, dividing the parties' marital property, awarding physical custody of the parties' minor children to Kathy Wolt, and initially granting Steve Wolt limited, supervised visitation and limiting him to two 20-minute phone calls per week with the children to be monitored by Kathy Wolt. The district court's memorandum opinion stated that Steve Wolt had significantly alienated the children from Kathy Wolt. See Wolt v. Wolt, 2010 ND 26, ¶ 1 (affirming district court divorce judgment).

[¶3] On March 13, 2009, two days after the district court's memorandum opinion, Kathy Wolt sought a disorderly conduct restraining order under N.D.C.C. § 12.1-31.2-01 against Steve Wolt. In her petition for the restraining order, she alleged she was in her car at a stoplight in Mandan when Steve Wolt pulled up next to her in his vehicle and began shouting obscenities at her, specifically threatening her life by saying, "I'm going to kill you, you fucking bitch." Kathy Wolt immediately reported the incident to law enforcement and sought a disorderly conduct restraining order. The district court entered a temporary disorderly conduct restraining order on March 13, 2009. After a hearing on March 27, 2009, the court granted a final restraining order that day effective until March 27, 2010. Steve Wolt did not appeal the disorderly conduct restraining order.

[¶4] Before entry of the final disorderly conduct restraining order, Kathy Wolt also filed a petition dated March 26, 2009, for a domestic violence protection order against Steve Wolt under N.D.C.C. ch. 14-07.1. The district court issued a temporary domestic violence protection order dated the same day. In her March 26, 2009, petition, Kathy Wolt reiterated the March 13, 2009, threat, and an incident on March 24 or 25, 2009, where Steve Wolt called her cell phone and left a message calling her a "cheap whore," asserting that "he is glad the kids hate [her] and that [she] can play this message to anyone that [she] want[s] to[, for example,] Judge, Sheriff." Kathy Wolt's petition also alleged incidents where Steve Wolt was verbally and physically abusive to her in the past, striking her in the face and giving her a black eye, and claimed "Steve's actions show that he is unstoppable and he can do as he pleases any time he wants." Both the March 26, 2009 petition and temporary domestic violence protection order were filed in the district court on March 27, 2009, the same day the court issued the permanent disorderly conduct restraining order.

[¶5] Steve Wolt filed an affidavit and response to the temporary domestic violence protection order, denying the allegations and asserting recent domestic violence by Kathy Wolt. He also filed an expedited motion to dismiss or vacate the temporary domestic violence protection order. Kathy Wolt responded with an additional affidavit in support of her original petition, stating:

5. March 5, 2009 Steve came into the marital home . . . against Court Orders and stole the computer, desk, fax machine, and printer. I reported the theft to the State[']s Attorney's office, but was informed that it was a civil matter that needed to be handled with my divorce attorney.

6. On March 13, 2009, Steve saw me on the east end of Main Street in Bismarck [sic] and pulled up beside me and threatened to kill me. For fear of safety, I immediately filed a Temporary Restraining Order. A hearing was held on Friday, March 27th on the matter and the Judge Ordered that the Restraining Order stay in place for a period of one year. Steve has already violated the Restraining Order by continuing to contact me thus I had no choice but to file for a Protection Order. Steve continues to threaten me, and uses the kids and makes them promises that he can't keep in an attempt to alienate them from me.

7. On March 20, 2009, the children called Steve for one of their Court Order and telephone calls. Steve started telling the children "Dad is doing everything possible through the court system" and then proceeded to say "[Child's name], is she standing right there listening to you?" At that point I hung up the phone.

8. On March 25, 2009, the children made another telephone call to their Dad. Steve started saying "Are you guys even allowed to watch TV, I know she . . ." and at that point I disconnected the phone. Less than two minutes later, Steve called my cell phone and left me a voice message telling me that I'm a "cheap whore" and that he just loves it that the kids hate me and asked me who I think I am hanging up on him and his kids. He told me to play this message to anyone, including the "judge/lawyers/sheriff".

9. On April 6, 2009, when the kids and Steve were having visitation at the Family Safety Center, the Family Safety Center called me at 4:41 p.m. and told me that they had to stop the visit because Steve was inappropriately talking to the kids. Tracy Miller, Director of the Family Safety Center drafted a letter to inform the Court (Judge Wefald) that Mr. Wolt's visiting privileges at the Family Safety Center were terminated due to his inappropriate behaviors. . . .

11. I am asking that a Protection Order be granted in this matter. I feel that is the only thing that will prohibit Steve from threatening me or jeopardizing my safety. Steve is a very angry individual who needs treatment. Police reports will evidence the same. Steve has alienated our children from me, and as of April 2nd has had his supervised visitation taken away, thus his anger toward me is not improving. He needs help and until he receives the same, I need to be protected by having a Protection Order in place.

14. For the reasons stated above, I would ask that Steve's Motion for Stay Pending Appeal be denied and that the Judgment dated March 16, 2009 remain in place. I would also ask that the Court enter the Protection Order that I am seeking in this case to keep me safe from Steve.

(Emphasis in original.)

[¶6] After an April 7, 2009, hearing on Kathy Wolt's petition, the court found she was credible and Steve Wolt had threatened her with imminent physical harm. The court issued a domestic violence protection order effective for a period of two years, until April 7, 2011.

II.

[¶7] On appeal, Steve Wolt argues the district court erred as a matter of law in denying his motion to dismiss based on the doctrine of res judicata. He argues Kathy Wolt is barred from bringing this action for a domestic violence protection order, which he purports alleged no new facts, because she had a disorderly conduct restraining order in place at the time of the hearing. Although Steve Wolt argues the "exact same facts" were alleged for the domestic violence protection order, he concedes Kathy Wolt added an incident of alleged past abuse occurring twelve years earlier and a potential violation of the disorderly conduct restraining order, which he argues should have been irrelevant.

[¶8] In Hager v. City of Devils Lake, 2009 ND 180, ¶ 10, 773 N.W.2d 420, we outlined the application of res judicata and collateral estoppel:

Res judicata, or claim preclusion, prevents relitigation of claims that were raised, or could have been raised, in prior actions between the same parties or their privies. Thus, res judicata means a valid, existing final judgment from a court of competent jurisdiction is conclusive with regard to claims raised, or those that could have been raised and determined, as to [the] parties and their privies in all other actions. Res judicata applies even if subsequent claims are based upon a different legal theory. Collateral estoppel, or issue preclusion, forecloses relitigation of issues of either fact or law in a second action based on a different claim, which were necessarily litigated, or by logical and necessary implication must have been litigated, and decided in the prior action.

Hager, at ¶ 10 (quoting Riverwood Commercial Park, L.L.C. v. Standard Oil Co., Inc., 2007 ND 36, ¶ 13, 729 N.W.2d 101).

[¶9] This Court has explained that N.D.C.C. § 14-07.1-02 is a remedial statute "which we construe `liberally with a view to effecting its objects and to promoting justice.'" Gaab v. Ochsner, 2001 ND 195, ¶ 5, 636 N.W.2d 669 (quotation omitted). The statute's purpose is to protect domestic violence victims from further harm. Id. Further, N.D.C.C. § 14-07.1-07 explicitly provides for the statute's nonexclusivity of remedy, stating, "Any proceeding under sections 14-07.1-01 through 14- 07.1-08 is in addition to any other civil or criminal remedies." (Emphasis added.)

[¶10] Here, the district court reasoned that the "relief available through a protection hearing proceeding is different than that that's available in a disorderly conduct proceeding. The [conduct for finding] disorderly conduct is defined differently from domestic violence." This Court has said, "Like the domestic violence protection order statute, the disorderly conduct restraining order statute creates a special summary proceeding and directs a hearing upon order of the district court" and that "[b]oth statutes seek to quickly and effectively combat volatile situations before any tragic escalation." Skadberg v. Skadberg, 2002 ND 97, ¶ 13, 644 N.W.2d 873. However, we believe the district court correctly recognized the differing definitions, grounds, and available relief for granting a disorderly conduct restraining order and for granting a domestic violence protection order.

[¶11] Although both statutory schemes similarly create special summary proceedings and seek to avert tragic escalation of volatile situations, there are some important distinctions. Under N.D.C.C. § 12.1-31.2-01, "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," but "does not include constitutionally protected activity." The court may grant a disorderly conduct restraining order, requiring an individual to stop the disorderly conduct or have no contact with the person applying for the order, upon meeting certain procedural requirements and if, after a hearing, the court finds "reasonable grounds to believe that the respondent has engaged in disorderly conduct." See N.D.C.C. § 12.1-31.2-01(4), (5).

[¶12] Unlike N.D.C.C. ch. 12.1-31.2, however, N.D.C.C. ch. 14-07.1 defines conduct sufficient to grant a protection order, i.e., "domestic violence" under N.D.C.C. § 14-07.1-01(2), and specifically contemplates an action brought by any "family or household member" or other person of sufficient relationship. See N.D.C.C. §§ 14-07.1-01(4), 14-07.1- 02(1). A court may enter a domestic violence protection order after notice and a hearing on a "showing of actual or imminent domestic violence," N.D.C.C. § 14-07.1-02(4), and in addition to restraining any party from any other person, the court's protection order may also include a variety of other relief, such as excluding the respondent from a dwelling, awarding temporary custody or visitation of children, requiring counseling, requiring payment of support, awarding temporary use of personal property, or requiring the respondent to surrender ...


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