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Lenton v. Lenton

June 30, 2010

TINA LENTON, PETITIONER AND APPELLEE
v.
LANCE LENTON, RESPONDENT AND APPELLANT



Appeal from the District Court of McHenry County, Northeast Judicial District, the Honorable John C. McClintock, Jr., Judge.

The opinion of the court was delivered by: Sandstrom, Justice.

AFFIRMED.

[1] Lance Lenton appeals a domestic violence protection order restraining him from contact with Tina Lenton for two years. We affirm.

I.

[2] Lance and Tina Lenton are separated and seeking a divorce. They have a minor son. On August 18, 2009, by the parties agreement because no interim custody order was in place, Lance Lenton went to Tina Lentons office to pick up the child. Tina Lenton refused to let the child leave with Lance Lenton, and a heated argument ensued. Tina Lenton filed a petition for a domestic violence protection order, alleging that after she would not let the child leave with Lance Lenton, he screamed at her, called her vulgarities, and said she would get whats coming to her. She also alleged that after she asked Lance Lenton to return a horse trailer, he refused and told her that if she attempted to retrieve anything she would not walk off the property alive. She stated that she was scared, because Lance Lenton had a violent past, including physical and verbal abuse, and that she had been hiding with her child. The district court issued a temporary domestic violence protection order and set a hearing.

[3] At the hearing, Tina Lenton testified Lance Lenton had physically and verbally abused her in the past. She testified she had filed for two prior restraining orders, but they were ultimately dismissed, one on the basis of an agreement that Lance Lenton would go to counseling and quit drinking. Tina Lenton testified she feared for her safety when Lance Lenton told her that she would get what was coming to her and that she would not walk off the property alive if she attempted to retrieve anything. She testified he was inches from [her] face screaming at [her] when he said she would get what was coming to her. Lance Lenton testified he has never been physically abusive to Tina Lenton. He testified he did not remember the exact words he said during the argument, but only that it was a heated debate and he did not threaten to harm Tina Lenton. He testified he did not tell Tina Lenton she would not leave the property alive if she attempted to retrieve anything, but instead said only that you will not leave with anything, such as a combine or tractor. He admitted telling Tina Lenton she would get whats coming to her.

[4] The district court issued a permanent protection order for a two-year period, and Lance Lenton appeals.

[5] The district court had jurisdiction under N.D. Const. art. VI, 8, N.D.C.C. 27-05-06, and N.D.C.C. 14-07.1-02. The appeal is timely under N.D.R.App.P. 4(a). This Court has jurisdiction under N.D. Const. art. VI, 6, and N.D.C.C. 28-27-02.

II.

[6] Lance Lenton argues there was insufficient evidence to support the domestic violence protection order.

A.

[7] A district court may enter a protection order upon a showing of actual or imminent domestic violence. N.D.C.C. 14-07.1-02(4). Domestic violence includes physical harm, bodily injury, sexual activity compelled by physical force, assault, or the infliction of fear of imminent physical harm, bodily injury, sexual activity compelled by physical force, or assault, not committed in self-defense, on the complaining family or household members. N.D.C.C. 14-07.1-01(2). The party seeking the protection order must prove actual or imminent domestic violence by a preponderance of the evidence. Ficklin v. Ficklin, 2006 ND 40, 12, 710 N.W.2d 387. Past abusive behavior is a relevant factor for the district court to consider in determining whether domestic violence is actual or imminent. Id. The context and history of the relationship between the parties is also relevant. Id.

[8] A district courts finding of domestic violence is one of fact that will not be overturned unless clearly erroneous under N.D.R.Civ.P. 52(a). Lawrence v. Delkamp, 2000 ND 214, 7, 620 N.W.2d 151. A finding of fact is clearly erroneous if it is induced by an erroneous view of the law, if no evidence supports it, or if, on the entire record, the reviewing court is left with a definite and firm conviction a mistake has been made. Lovcik v. Ellingson, 1997 ND 201, 10, 569 N.W.2d 697. Whether the ...


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