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Rath v. Rath

Supreme Court of North Dakota

March 28, 2016

Kayla Rath, Petitioner
v.
Mark Rath, Respondent and Appellant

          Appeal from the District Court of Burleigh County, South Central Judicial District, the Honorable Gail Hagerty, Judge.

         Kayla Rath, petitioner; no appearance.

         Mark A. Rath, self-represented, Bismarck, ND, respondent and appellant; on brief.

         Gerald W. VandeWalle, C.J., Carol Ronning Kapsner, Daniel J. Crothers, Lisa Fair McEvers, Joel D. Medd, S.J. Opinion of the Court by VandeWalle, Chief Justice. Honorable Joel D. Medd, S.J., sitting in place of Sandstrom, J., disqualified.

          OPINION

Page 299

          Gerald W. VandeWalle, Chief Justice.

          [¶1] Mark Rath appealed from a disorderly conduct restraining order. We reverse and remand for proceedings consistent with this opinion.

         I

          [¶2] This appeal represents the latest dispute between Mark Rath and Kayla Rath. See, e.g., Rath v. Rath, 2015 ND 22, 861 N.W.2d 172; Rath v. Rath, 2014 ND 171, 852 N.W.2d 377; Rath v. Rath, 2013 ND 243, 840 N.W.2d 656. On April 17, 2015, Kayla Rath petitioned for a disorderly

Page 300

conduct restraining order against Mark Rath, citing a litany of conduct purportedly rising to the level of disorderly conduct. These allegations included: Mark Rath called his children nearly twenty times in one night, Mark Rath used foul language towards Kayla Rath, Mark Rath said he had a business associate seek Kayla Rath's phone records, Mark Rath reported Kayla Rath to authorities out of concern she may be illegally receiving government benefits, and other miscellaneous conduct.

          [¶3] The district court held a hearing on the petition. At the outset of the hearing, the court asked Kayla Rath, who was under oath and represented by counsel, if the information and allegations contained in her petition and accompanying affidavit were correct. She answered in the affirmative and offered no other evidence or testimony in support of her petition at the hearing. According to the hearing transcript, her substantive participation ended moments into the hearing.

          [¶4] The remainder of the hearing consisted of Mark Rath, who was self-represented, attempting to refute Kayla Rath's allegations. Mark Rath argued Kayla Rath misrepresented the situation, his actions were reasonable, and his conduct was constitutionally protected. To corroborate these arguments, Mark Rath wanted to call Kayla Rath as a witness. The district court denied this request, concluding Mark Rath could not directly question Kayla Rath out of concern for safety, to minimize conflict between the parties, and in order to keep the hearing focused on the factual issues necessary to determine whether to grant Kayla Rath's petition. Instead, the court allowed Mark Rath to identify any questions he wanted to ask Kayla Rath and, if the court deemed the questions appropriate, the court would ask Kayla Rath the questions. The ...


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