Appeal from the District Court of Divide County, Northwest Judicial District, the Honorable David W. Nelson, Judge.
The opinion of the court was delivered by: Maring, Justice.
N.D. Supreme CourtHanisch v. Kroshus, 2013 ND 37
This opinion is subject to petition for rehearing. [Go to Documents]
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Opinion of the Court by Maring, Justice.
[¶1] Kelly Kroshus appeals from a district court order granting Andrea Hanisch a two-year disorderly conduct restraining order against him. Because we conclude the district court did not abuse its discretion in granting Hanisch a two-year restraining order against Kroshus, we affirm.
[¶2] Hanisch and Kroshus were never married to each other, but had previously dated until September 2011. They had one child together, who was 16 months old at the time of the hearing in this case. Hanisch and Kroshus unsuccessfully attempted to reconcile in February 2012. On March 21, 2012, Hanisch petitioned the district court for a disorderly conduct restraining order against Kroshus after he sent her a series of allegedly harassing text messages, some of which included sexually explicit pictures of her, and threatened to post pictures on a website. The court granted Hanisch a temporary disorderly conduct restraining order and set a hearing to decide whether to grant a permanent restraining order. Both Hanisch and Kroshus testified at a hearing held on March 28, 2012.
[¶3] According to Hanisch's sworn petition, Kroshus began sending her sexually explicit and harassing text messages, including pictures of her genitals and other private parts, beginning on March 18, 2012, at 12:05 a.m. Hanisch asserts Kroshus also claimed in these text messages that he was starting a website with the pictures and called Hanisch derogatory names. Hanisch claimed she received approximately 12 text messages from Kroshus between 12:00 a.m. and 1:34 a.m., on March 18 containing the derogatory language and pictures of her genitalia and other private parts.
[¶4] Hanisch asserts that, upon discovering the text messages from Kroshus at approximately 8:50 a.m. on March 18, she immediately responded by text message to Kroshus telling him that his text messages were harassment. Kroshus continued to send Hanisch additional text messages containing derogatory comments and pictures of her private parts. Hanisch texted Kroshus at 11:46 a.m. on March 18, stating, "Please stop harassing me." Hanisch asserts Kroshus responded by continuing to send derogatory and harassing text messages and pictures. At 12:10 p.m., Hanisch texted Kroshus that "I[']ll be talking with my atty about this tomorrow. Now leave me alone." At 12:14 p.m., Kroshus responded by sending Hanisch another picture of her private parts, which she contends was nonconsensual, with a derogatory comment. At 12:24 p.m., Hanisch sent Kroshus a text message stating, "I have ur texts. Now leave me the hell alone." Kroshus nonetheless continued to send derogatory text messages and pictures of her private parts. Hanisch asserts she again responded requesting that he stop sending her harassing text messages. At 1:50 p.m., on March 18, Kroshus sent Hanisch a final derogatory text with a picture of her private parts.
[¶5] At the hearing, Hanisch testified regarding the content of some of the text messages, in which Kroshus had called her derogatory names and made derogatory and harassing comments. Hanisch also testified that she had received the illicit pictures of her private parts with text messages from Kroshus and that he had threatened to put at least "a few" of the pictures on a website. Although Hanisch acknowledged that she and Kroshus had previously used derogatory language toward each other and had taken and sent pictures to each other while they were in a relationship, Hanisch testified that some of the pictures Kroshus sent to her in this series of harassing text messages were nonconsensual.
[¶6] Kroshus essentially acknowledged that he sent the text messages described in Hanisch's petition for the restraining order, but testified that sending such messages and sexual pictures was a normal part of their relationship while they were dating. He testified that he had a significant amount of alcohol to drink in the early morning hours on March 18 when he sent the text messages at issue, but that he had stopped texting her once he received the text message back from Hanisch to stop texting. Kroshus also testified that his cell phone reception was limited at the time and would prevent him from receiving the text messages from Hanisch until later in the day.
[¶7] At the end of the hearing, the district court found that Kroshus had committed disorderly conduct. The court issued a disorderly conduct restraining order against Kroshus precluding him from coming within 50 feet of Hanisch ...