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Harris v. Harris

March 16, 2010

KAREN E. HARRIS AND M.P.H., PETITIONERS AND APPELLEES
v.
DAVID L. HARRIS, RESPONDENT AND APPELLANT



Appeal from the District Court of Grand Forks County, Northeast Central Judicial District, Harlan Dyrud, Magistrate.

The opinion of the court was delivered by: VandeWalle, Chief Justice

AFFIRMED IN PART, REVERSED IN PART, AND REMANDED.

[¶1] David L. Harris appealed from a magistrate's disorderly conduct restraining order prohibiting him from having contact with Karen E. Harris and unsupervised contact with their son, and from a district court order denying his request for review of the magistrate's decision. We affirm the district court's order, but we reverse the magistrate's order because David Harris did not receive a full hearing required under the law, and we remand for a new hearing.

I.

[¶2] In early June 2009, Karen Harris filed in Grand Forks County a petition for a disorderly conduct restraining order against her husband, David Harris, alleging he had made threats against her and their eight- year-old son. She alleged David Harris threatened to call Social Services or the police to have their son removed from the home "because [their son] will not listen to him." She alleged he threatened to "kill" her if she ever planned to divorce him. She alleged he threatened to "kill" their son if he discovered their son was fighting in school again. Karen Harris also alleged her brother received "a call from a close friend informing us of watching my brother's home, following me in any vehicle I drove, along with the threat of taking my brother's grandson in exchange for [our son] even if I were to be hurt taking him. David has had bad violent tend[en]cies in the past and I fear he will be violent once again." A magistrate issued a temporary disorderly conduct restraining order pending a hearing to be held on June 23, 2009.

[¶3] At the hearing, an attorney represented Karen Harris and David Harris represented himself. After the magistrate explained to the parties the effect of, and the procedure and burden of proof for, a disorderly conduct restraining order, the magistrate addressed David Harris:

THE COURT: One of the first questions I ask a lot of times in some of these cases is-and many times, particularly on these restraining orders as opposed to the protection orders, people say, "Well, she doesn't or he doesn't want to see me again, and so we might as well have an order keeping us apart, and I don't mind."

What's your position on that?

MR. HARRIS: That's pretty much exactly what I think is going on.

THE COURT: Is that what you think you would want, you would be okay with?

MR. HARRIS: That I don't want to speak to her?

THE COURT: No. No. Are you willing to stay away from her-

MR. HARRIS: Oh, yeah. The only reason I even tried to like call her at work or what not was to find out if my son was okay and where he was.

THE COURT: Okay. So you're willing to have a restraining order?

MR. HARRIS: I'd rather not have the restraining order, but if it has to be that way, I guess it has to be that way.

THE COURT: Do you want a trial on the issue? Do you want testimony to be taken on the issue of whether your gestures are unwanted and whether they affect her privacy or something she doesn't want? Do you want us to go through a trial on that and take testimony and so forth?

MR. HARRIS: I would like the restraining order dropped.

THE COURT: Do you wish to go ahead? Okay. That means to me that he wants a hearing, unless you have another idea, Ms. Weis.

M[S]. WEIS: No-

THE COURT: Sometimes things get worked out like that, you know, because people don't want to see each other, there's some problems, and maybe there's another case, proceedings come along, and I don't ...


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