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O'Hara v. Schneider

Supreme Court of North Dakota

March 7, 2017

Keaton J. O'Hara, Plaintiff and Appellee
Keanna S.K. Schneider, Defendant and Appellant

         Appeal from the District Court of Stark County, Southwest Judicial District, the Honorable William A. Herauf, Judge.

          Markus A. Powell (on brief), Ashley H. Hurlbert (appeared), and Lexie Hoemberg (argued), under the Rule on Limited Practice of Law by Law Students, for plaintiff and appellee.

          Kristin A. Redmann, for defendant and appellant.


          TUFTE, JUSTICE.

         [¶ 1] Keanna Schneider appeals a district court order denying her motion to modify the parenting time of Keaton O'Hara from unsupervised to supervised parenting time. Schneider sought modification after an incident in which O'Hara punched her in the face in front of their child during an exchange. We conclude that the district court erred in handling this case and we reverse the court's order denying Schneider's motion, retain jurisdiction under N.D.R.App.P. 35(a)(3), and remand for additional findings.


         [¶ 2] Schneider and O'Hara began dating when they were both juniors in high school, and their child was born two years later, in late 2014. By then, the relationship had begun to deteriorate and ended shortly thereafter. O'Hara exhibited anger problems, which manifested themselves in violent acts. During a dispute in a car, O'Hara made threatening comments about taking out his handgun before he began driving erratically, causing Schneider to fear for her life. His violent acts continued over the next year and a half. He kicked a dog in front of their child. He pled guilty to disorderly conduct in June 2015 and again in January 2016 for incidents during which he was violent toward Schneider.

         [¶ 3] O'Hara also displayed controlling behavior during this period. He frequently interfered in Schneider's life and expressed hatred for her boyfriend. He used their child on multiple occasions to control the mother's actions. For example, he would threaten not to return the child unless Schneider answered his text messages. As a whole, the record reflects Schneider being stern but civil toward the father.

         [¶ 4] In December 2015, O'Hara and Schneider agreed to a parenting plan in which Schneider would have primary residential responsibility over the child. The record reflects that O'Hara's hostile behavior toward Schneider continued at least through January 2016. In May, the parents arranged to exchange their child at a correctional center. A security camera recorded the exchange, and it shows O'Hara punching Schneider in the face, knocking her to the ground. Police officers arrested O'Hara. Schneider testified that as a result of this incident, the child was traumatized and lost sleep for a month. Following this incident, the State charged O'Hara with aggravated assault, a class C felony. He pled guilty to a reduced charge.

         [¶ 5] The day after the assault, Schneider sought a domestic violence restraining order against O'Hara. At the hearing on the restraining order, the district court commented that the domestic violence was between the parties, not the parties and the child, finding significance in a lack of "direct threat" between O'Hara and the child. After receiving the restraining order against O'Hara, Schneider moved the district court to modify O'Hara's parenting time from unsupervised to supervised. During the modification hearing, the court refused to allow any testimony regarding events that had occurred before the December 2015 order establishing primary residential responsibility and parenting time. The district court ultimately denied Schneider's request to restrict O'Hara's parenting time, reasoning that O'Hara committed domestic violence against the mother but not the child. We note that the protection order hearing and the modification hearing were held before different district judges, but both apparently labored under the same misconception that domestic violence between parents can be discounted if a child is not directly threatened.


         [¶ 6] A district court must "grant such rights of parenting time as will enable the child to maintain a parent-child relationship that will be beneficial to the child, unless the court finds, after a hearing, that such rights of parenting time are likely to endanger the child's physical or emotional health." N.D.C.C. § 14-05-22. In determining whether to modify parenting time, we have instructed the district courts to use a standard similar to that used to modify primary residential responsibility: "To modify parenting time, the moving party must demonstrate a material change in circumstances has occurred since entry of the previous parenting time order and that the modification is in the best interests of the child." Prchal v. Prchal, 2011 ND 62, ¶ 11, 795 N.W.2d 693 (quotation marks omitted).

         [¶ 7] Before we turn to Schneider's arguments, we first consider the material change in circumstances prong and how it relates to cases in which a party alleges domestic violence. Where there is domestic violence leading up to an order, a new act of domestic violence following the order arguably would not be a material "change" in circumstances. The new act might be considered a continuation of the same circumstance that led to the original order.

         [¶ 8] We clarify the application of the "material change" prong by holding that where the initial order included consideration of domestic violence, a new domestic violence act by the same parent satisfies the "material change" prong as a matter of law. In such an instance, the district court must consider all relevant evidence of domestic violence, regardless of whether the original order was based on a stipulated agreement. We reason that when a district court issues its original order establishing residential responsibility or parenting time, the order necessarily implies that the parenting plan was tailored to end the domestic violence. The order does not erase prior domestic ...

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