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.
This opinion is subject to petition for rehearing. [Go to Documents]
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Opinion of the Court by Sandstrom, Justice.
[¶1] William Falconer appeals from a domestic violence protection order prohibiting him from coming within 500 feet of Bridget Niska for three years, granting Niska temporary custody of the parties' minor child, and ordering visitation exchanges for the child through Falconer's mother. Falconer claims that the court erred in issuing a domestic violence protection order based on an incident of domestic violence that occurred more than seven years ago, that he acted in self-defense in the incident seven years ago, and that Niska used the process for procuring a protection order to thwart his visitation with the parties' minor child and as a means to punish him for the parties' failing relationship. We conclude the judicial referee's findings are insufficient to understand the basis for the referee's decision, and we reverse and remand for further proceedings.
[¶2] On March 15, 2012, Niska petitioned for a domestic violence protection order against Falconer, alleging he posed an immediate and present danger of domestic violence against her. Niska's supporting affidavit stated the parties have had a relationship at least since 2005 and had a child together in 2011. Niska's affidavit states Falconer was released from prison on February 21, 2012, after being incarcerated for aggravated assault against her. See State v. Falconer, 2007 ND 89, ¶¶ 1, 17, 732 N.W.2d 703 (affirming Falconer's drug conviction, reversing his conviction for aggravated assault against Niska, and remanding for a new trial for failure to instruct on self-defense). In her affidavit, Niska stated Falconer had threatened to kill her when he got out of prison and she now feared for her and her child's lives. She also alleged an incident occurred in 2010, when Falconer was incarcerated and was on a home visit at her home, in which she claimed the parties argued, she locked herself in her bedroom, and Falconer tore the bedroom door off the hinges. She stated that since Falconer was released from prison, she has called the police because he has come to her house for their child and "yelled" and "screamed" at her. She alleged "she was scared that he was going to hurt [her] again" and she was "very afraid of [him]." In her affidavit, Niska also described the 2005 incident involving Falconer which led to the aggravated assault charge that was ultimately dismissed on remand when Niska failed to cooperate with the State. See Falconer, at ¶ 1. On the basis of Niska's petition, a judicial referee granted a temporary domestic violence protection order and scheduled an evidentiary hearing.
[¶3] At the April 2012 evidentiary hearing, Niska testified that the last time Falconer physically abused her was in the 2005 incident that led to his incarceration; that he threatened to kill her when he got out of prison; that the parties continued a relationship while Falconer was in prison and they had a child together in 2011; that Falconer "rip[ped] [her] bedroom door off the hinges" in 2010 when he was on a home visit and "she was afraid that he was going to hit" her; that there were "numerous [other] times" when he hit her; that she called the police about Falconer when he came to her house to get the child and started "yelling" and "screaming" at her; and that she was seeking the protection order now because the parties' child "does not need to be brought up . . . in a violent household." Niska testified she "remember[ed] the way it felt with his hands around [her] neck," she "remember[ed] the way it felt when [he] stumped on [her] chest," she "remember[ed] the way it felt when [he] punched [her] in the face," and she "remember[ed] the smile on [his] face when [he] did all these things."
[¶4] On cross-examination, Niska recanted her trial testimony in Falconer, and she testified her original statement to the police about the 2005 incident was the truth. See 2007 ND 89, ¶¶ 5, 10, 732 N.W.2d 703. She testified she continued a relationship with Falconer while he was in prison because she "was stuck on stupid" and explained why she was seeking a restraining order now:
While he was in prison I was safe, now I am not. I believe, if me and him are not getting along, that he will come back and do exactly what he did before. And his saying is go for the throat with anybody, with any kind of argument, or anything. He would tell me that all the time. He would go for the throat. And then the next thing you know he's got me around the throat. He wasn't out just to hurt me. He was out to ...