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Ania Diaz Gonzalez, A/K/A Ania Diaz Gonzales, Petitioner and Appellee v. John Witzke

March 15, 2012

ANIA DIAZ GONZALEZ, A/K/A ANIA DIAZ GONZALES, PETITIONER AND APPELLEE
v.
JOHN WITZKE, RESPONDENT AND APPELLANT



Appeal from the District Court of Burleigh County, South Central Judicial District, the Honorable Wayne D. Goter, Judicial Referee.

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

N.D. Supreme Court

Gonzalez v. Witzke,

2012 ND 60

This opinion is subject to petition for rehearing. [Go to Documents]

[Download as WordPerfect]

AFFIRMED.

Opinion of the Court by Sandstrom, Justice.

[¶1] John Witzke appeals from the district court's order granting a petition by Ania Gonzalez for a two-year disorderly conduct restraining order against him. We affirm, concluding Gonzalez presented sufficient evidence to support the restraining order and the district court did not abuse its discretion in granting the order.

I

[¶2] Witzke and Gonzalez are neighbors with a long acrimonious history, which has resulted in frequent litigation. See, e.g., State v. Witzke, 2009 ND 169, 776 N.W.2d 232; Gonzales v. Witzke, 2007 ND 34, 729 N.W.2d 334; Witzke v. Gonzales, 2007 ND 191, 742 N.W.2d 840; Witzke v. Gonzales, 2006 ND 213, 722 N.W.2d 374.

[¶3] On June 23, 2011, Gonzalez petitioned the district court for a disorderly conduct restraining order against Witzke, alleging that he harassed her by using a video camera to record her, that he called her a "troll" and a "perjurer" during a confrontation on June 19, 2011, and that she feared for her and her family's safety. In her petition, Gonzalez also stated she previously had obtained a disorderly conduct restraining order against Witzke in 2006, and in 2009 a jury found him guilty of violating the order. See Gonzales v. Witzke, 2007 ND 34, ¶ 1, 729 N.W.2d 334; State v. Witzke, 2009 ND 169, ¶¶ 1-2, 776 N.W.2d 232. On June 23, 2011, the district court granted Gonzalez a temporary disorderly conduct restraining order against Witzke, and an officer of the Burleigh County Sheriff's Department served him with a copy of the temporary order that day.

[¶4] On June 30, 2011, the district court held a hearing on the petition. Gonzalez testified that on June 19, 2011, she trimmed some of Witzke's tree branches that hung over her fence, separating the parties' properties, to prevent damage to the fence. She also testified he used a video camera to record her actions, and he called her a "troll" and a "perjurer." She testified she instructed her mother to get a tape recorder, and Gonzalez recorded Witzke calling her a "troll" and a "perjurer." She played the tape for the court at the hearing. She further testified Witzke's actions made her feel harassed and fearful of him. Witzke testified he did not call Gonzalez a "troll" or a "perjurer," and his neighbor, who was outside during the confrontation, testified he did not hear Witzke call Gonzalez a "troll" or a "perjurer."

[ΒΆ5] The district court granted a disorderly conduct restraining order against Witzke for two years, concluding that Witzke had called Gonzalez a "troll" and a "perjurer" and that he had used a video camera to record her. Under the restraining order, the district court prohibited Witzke from: 1) having any physical contact with or coming within fifty feet of Gonzalez; 2) calling, writing, or having messages delivered to her, except through an attorney; 3) ...


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